FKB’s Spencer A. Richards and David Gorelick have obtained a pre-answer dismissal of a legal malpractice lawsuit on behalf of a well-respected civil litigator. FKB’s client represented Plaintiff in an underlying partnership dispute. The court in the underlying action, sua sponte dismissed Plaintiff’s claims after finding that the Plaintiff manufactured memory loss issues at trial and that Plaintiff therefore caused his own mistrial. Plaintiff subsequently commenced an action against his former attorney alleging legal malpractice.
In obtaining the pre-answer dismissal of Plaintiff’s Complaint, FKB successfully rebutted Plaintiff’s allegation that FKB’s client’s conduct was the proximate cause of the court’s decision to dismiss Plaintiff’s underlying action. First, the court held that FKB established, by submitting underlying court records, that FKB’s client did all they could to assist Plaintiff at the time of trial. Second, the court agreed with FKB’s argument that Plaintiff failed to allege that Plaintiff would have prevailed at trial but for the conduct of FKB’s client. Third, the court adopted FKB’s argument that Plaintiff’s Complaint “constitutes a nonactionable criticism” of FKB’s client’s strategy. Finally, the court agreed with FKB’s argument that Plaintiff failed to allege specified damages arising from the conduct of FKB’s client.