by Christopher J. Graham and Joseph P. Kelly

Joseph Delgreco & Company, Inc. v. DLA Piper, Case No. 10 Civ 6422 (PAE) (S.D. N.Y. Oct. 1, 2012)

Court granted defendant law firm’s motion for summary judgment against plaintiffs because they didn’t offer expert testimony to establish a prima facie case of legal malpractice. Plaintiff’s expert testified regarding only two of plaintiff’s 13 malpractice claims. The court stated that “[t]he only circumstances in which expert opinion evidence is unnecessary are those in which “a jury could reasonably conclude, on the basis of their own ordinary experience, that defendant’s conduct was so negligent as to fall below any standard of care.” [citation omitted]; and, “[u]nless [1] a juror’s ordinary experience provides sufficient basis to assess the adequacy of the professional service, or [2] the attorney’s conduct falls below any standard of due care, expert testimony is necessary to establish that the attorney acted negligently.” [citation omitted]. Plaintiffs’ claims required expert testimony so defendants’ motion for summary judgment regarding the 11 claims lacking expert testimony was granted. The court also granted defendants’ summary judgment on the two claims involving expert testimony for lack of proximate cause because the expert testimony wasn’t about proximate cause and the evidence didn’t otherwise establish proximate cause.

by Christopher J. Graham and Joseph P. Kelly

Sacksteder v. Senney, C.A. No. 24993 (Court of Appeals of Ohio, Second District, Sept. 28, 2012)

Appeals court overturned dismissal of legal malpractice complaint. The court found that plaintiff alleged sufficient facts to withstand a motion to dismiss by applying a “plausibility” test to the allegations in the complaint to determine whether plaintiffs alleged a “plausible” legal malpractice claim. Plaintiffs didn’t need to prove their case at the pleadings stage.

by Christopher J. Graham and Joseph P. Kelly

Ruff v. Reising, Ethington, Barnes, Kisselle, P.C., Case No. 11-CV-11110 (E.D. Mi. Sept. 27, 2012)

Defendant law firm’s summary judgment motion granted based on statute of limitations. “Under Michigan law, a legal malpractice claim must be brought within two years of the date the attorney ceases to serve the client or within six months of when the client discovered or should have discovered the claim, whichever is later” and “[a] claim for professional malpractice accrues ‘at the time [the professional] discontinues serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose.” Here, plaintiff sued firm on November 10, 2010. The last substantive services provided by the firm were in April 2008—more than two years before suit was filed and, thus, plaintiff’s claim was time-barred. Defendant’s letter on November 10, 2008 confirming the end of the attorney-client relationship with plaintiff didn’t toll the statute of limitations when the last substantive services were provided in April 2008.

by Christopher J. Graham and Joseph P. Kelly

Elmo v. Callahan, 2012 WL 3669010 (D. N.H Aug. 24, 2012)

District court granted summary judgment to defendant attorney in transactional legal malpractice claim because plaintiffs failed to prove proximate cause. Defendant attorney represented both buyer and sellers of a business. Attorney stood to make over $200,000 if the sale went through, while sellers received cash, subordinated debt, and other equity from buyer. The sale went through but buyer went under soon after. Plaintiffs – the sellers that received subordinated debt and equity in buyer – sued for legal malpractice. Plaintiffs failed to prove proximate cause because they “presented no evidence as to why [the purchasing company] collapsed, let alone any evidence that [the purchasing company’s] collapse or the reasons for it should have been foreseeable to [the attorney].”

by Christopher J. Graham and Joseph P. Kelly

Croucier v. Chavos, 207 Cal. App. 4th 1138, 144 Cal. Rptr. 3rd 180 (Cal. App. July 18, 2012)

Plaintiffs suffered “actual injury” triggering legal malpractice one-year statute of limitations when they knew defendant attorney didn’t competently pursue enforcement of a judgment, rather than when the plaintiffs found evidence that the judgment was collectible. Defendant attorney had obtained a default judgment in favor of plaintiffs, but then left his firm and there was no substitution of attorney for a year and a half. Statute of limitations began running when plaintiffs’ new attorney substituted in the case and immediately began collection proceedings – not two months later when post-judgment proceedings indicated that the judgment was collectible.