Feb 27th, 2014

FKB Client Advisory by Andrew S. Kowlowitz

FKB Client Advisory by Andrew S. Kowlowitz

Re: FKB Legal Malpractice Advisory: Legal Malpractice Claims Arising from Underlying Arbitrations; The Vast Discretion Afforded Arbitrators Often Proves to be an Insurmountable Hurdle Precluding a Legal Malpractice Plaintiff from Establishing Causation.

Dear Clients & Colleagues:

Attached please find our client advisory discussing the heightened “but for” proximate causation standard of proof a legal malpractice plaintiff encounters when she elects to pursue a legal malpractice claim against the attorney who handled her underlying arbitration proceeding. As discussed in the advisory, arbitrators have broad discretion when reaching factual and legal determinations. An arbitrator’s decision will do not be disturbed by a court, if challenged, even upon a finding that “errors of law and fact [were] committed by the arbitrator,” so long as the arbitrator offers a “barely colorable justification for the outcome reached.” For this reason, a legal malpractice plaintiff’s burden of establishing “but for” proximate causation, namely that the introduction of additional facts/evidence would have altered the outcome of the arbitrator’s underlying decision, often proves to a particularly difficult hurdle for a plaintiff to overcome.

Please let us know if you have any questions concerning the attached.

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