Commercial Division Blog

Posted: August 9, 2016 / Categories Commercial, Law Firms and Professional Ethics

Disagreements With Counsel's Professional Decisions on Trial Strategy Not Actionable

On July 28, 2016, Justice Scarpulla of the New York County Commercial Division issued a decision in Bison Capital Corp. v. Hunton & Williams LLP, 2016 NY Slip Op. 31467(U), dismissing legal malpractice claims, explaining:

In a legal malpractice claim seeking damages, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. Additionally, to show the causation element, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence. Whether a complaint makes out a claim for legal malpractice is a question of law, capable of determination on a motion to dismiss.

Bison's allegations in support of the malpractice claim - that Hunton & Williams failed to call an expert witness, to introduce into evidence ATP' s SEC reports, and to rebut attacks on the credibility of Bison's President - are plainly disagreements with Hunton & Williams professional decisions related to trial strategy and are not actionable as a matter of law. Further, Bison's allegations fail to meet the case within a case requirement, that is, the allegations fail sufficiently to allege that but for Hunton & Williams' conduct Bison would have prevailed in the underlying matter or would not have sustained any ascertainable damages.

Similarly, Hunton & Williams' decision to wait to enforce the judgment against ATP during its appeal to the Second Circuit was a reasonable course of action which does not constitute malpractice. While there is nothing inconsistent in a party's accepting the benefit of a judgment and appealing in an attempt to increase the award, when an appellate body has authority as broad as that of the Trial Judge and can accordingly decrease a judgment, a party may not simultaneously accept the trial court's judgment and appeal that award. Here, the Second Circuit, engaging in de novo review, could have found that ATP was entitled to a reduced judgment.

In addition, Bison has not alleged sufficient facts to show that Hunton & William's alleged negligence in not immediately seeking to enforce the judgment proximately
caused its injuries.

(Internal quotations and citations omitted) (emphasis added).