Appellate Court Reaffirms Principle That Lawyers Possess the Freedom to Make Reasonable Strategic Choices in Litigation Without Fear of Liability
It is well-settled law in most jurisdictions that litigators have the freedom to use reasonable judgment in making strategic choices on behalf of their clients, without fear of legal malpractice liability. Despite this, lawyers are not immune from attacks on their decision making, with clients routinely trying to “second guess” or “Monday morning quarterback” strategic choices. This is underscored by the recent New York Appellate Division, First Department decision Genet v. Buzin, 2018 NY Slip Op 01878 (App. Div. 1st Dept. 2018), which upheld the dismissal of a legal malpractice action involving an underlying medical malpractice claim, wherein the plaintiff sought to attack its former counsel for mistakes counsel allegedly made at trial. Attorneys can and should better protect themselves from such allegations, including via contemporaneous documentation of key strategic decisions.
Genet v. Buzin
Genet v. Buzin affirmed the lower court’s decision denying plaintiff’s motion to reargue its dismissal and for leave to serve an amended Complaint, on grounds that plaintiff’s proposed amendment was “palpably insufficient.” The amended complaint contained granular allegations assailing all manner of defendants’ choices in the conduct of trial, including, among others: the selection witnesses to call and evidence to introduce at trial; defendants’ assertion of speaking objections; the methods by which defendants conducted direct and cross examination, and even the manner of delivery of the closing statement.
The Court held that “the allegations underlying the legal malpractice claim merely reflect plaintiff’s dissatisfaction with defendants’ strategic choices and tactics, and there [was] no showing that those choices and tactics were unreasonable.” Id. (internal citations omitted).
While the Genet decision may provide comfort in that it continues to solidify the well-established principle that attorneys possess significant discretion to exercise independent tactical judgment on behalf of their clients, it also highlights the fact that attorneys do not possess carte blanche ability to make whatever decision they want. The possibility remains that an attorney could be held liable for strategic decisions, upon proof that they are “unreasonable.”
To best protect oneself, attorneys should implement the practice of contemporaneous written memorialization of strategic choices or decisions throughout the course of litigation. While it may be seen as time consuming and tedious in the moment, it need not be – a short correspondence will usually suffice – and it will ultimately prove beneficial in the long-run.
This is not to say that every single decision needs to be accompanied by a full-blown multi-page internal memorandum or correspondence. One generally need only to take the time, at various key points in the matter, to draft a summary of the strategy behind the attorneys’ decisions and the plan going forward. When viewed in hindsight, if an attorney’s file contains written records of the thought process and reasoning supporting an attorney’s decisions at various points in the litigation timeline, it will be harder to attack counsel under a theory that those choices were “unreasonable”. For key strategic choices, it is generally advisable to involve the client, and furnish him or her with correspondence outlining the chosen strategy.
The Genet decision reaffirms a long-established principle in the arena of legal malpractice, and also serves as an important reminder for attorneys to continuously engage in the best preventative measures to stave off these types of claims. Should a legal malpractice action attacking the “unreasonable” decisions of former counsel survive the motion to dismiss phase, contemporaneous documentation will go a long way toward preventing a would-be plaintiff from ultimately prevailing against the attorney.
This article was prepared by Andrew Jones and Jason Kayne of the New York City-based law firm of Furman Kornfeld & Brennan LLP. Andrew and Jason work as part of a team of 15 lawyers and paralegals devoted to the defense of attorneys and other professionals in malpractice and disciplinary matters, as well as the defense of construction and personal-injury accidents. For more information about the above topic or the authors, please visit: www.fkblaw.com.
We trust that the above article was useful and thought-provoking; however, please note that it is intended as a general guide and opinion only, not a complete analysis of the issues addressed, and readers should always seek specific legal guidance on particular matters.
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