FKB’s A. Michael Furman and Rachel Aghassi obtained a decision from the New York Appellate Division, First Department reversing the lower court’s denial of summary judgment and dismissing the legal malpractice action on the eve of trial. This legal malpractice action arose from an underlying personal injury litigation. On June 24, 2007, Plaintiff, a unionized stagehand, was the victim of a hit and run accident leaving him with serious injuries and a severe disability in his right arm. Though Plaintiff was unable to identify the vehicle or driver that hit him, an eyewitness saw a dark green garbage truck clip Plaintiff and then leave the scene of the accident, but was unable to identify the trucking company or driver. A police detective then purported to identify the driver of the garbage truck based on a single surveillance of the area a few weeks later, but the District Attorney’s office declined to prosecute. Thereafter, FKB’s client law firm, on Plaintiff’s behalf, commenced an action against the truck driver, the driver’s employer, and the owner of the truck. After extensive investigation and discovery, no additional evidence was uncovered which would identify the trucking company involved including no further witnesses, no trucking company records, and no surveillance. Accordingly, when trial in the underlying action took place in September 2012, the case was entirely circumstantial as to the identity of the trucking company involved and ultimately resulted in a jury verdict in favor of the defense.
Plaintiff then commenced a legal malpractice action against FKB’s client in 2015, asserting that FKB’s client failed to adequately prepare the non-party eyewitness at his deposition and trial. Specifically, Plaintiff asserted that had FKB’s client adequately prepared the eyewitness, he would have conformed his testimony to his alleged statement to the police, that the truck he observed had a “flat-front” (like the trucks of the defendant-trucking company) rather than a bullnosed front. Instead, in his 2009 deposition, the eyewitness specifically disclaimed the police report and was adamant that he observed a truck with a bullnose front, even drawing a picture to illustrate his observation. Plaintiff asserts that this single detail would have allowed the jury to identify the defendant trucking company as involved in the accident. Plaintiff further claims that as a result of FKB’s client’s alleged malpractice, he has sustained approximately $20 million in damages.
FKB’s CPLR § 3212 summary judgment motion was denied on October 1, 2019 and the case was on the docket in the trial assignment part on October 15, 2019. FKB successfully obtained a stay of litigation from the First Department and filed an appeal arguing that Plaintiff’s claims were premised upon rank speculation as to the outcome of the 2012 trial and the alleged “misconduct” is indisputably protected by the professional judgment rule, which allows attorneys to choose among reasonable litigation strategies. FKB further argued that to hold FKB’s client responsible for the defense verdict would create a new standard for attorneys in preparation of non-client witnesses, requiring attorneys to have full control over non-client testimony and to somehow force a non-client to conform testimony to an unreliable hearsay statement contained in a police report. In fact, FKB pointed out, that the police reports were so unreliable that the underlying trial court found them inadmissible at trial and precluded all witnesses, including the eyewitness, from testifying to their content. Permitting this wholly speculative claim to survive summary judgment would mean that FKB’s client should have coached the eyewitness on how to testify. FKB posited that this is an impossible standard, as trial attorneys should not be exposed to suit simply because of unfavorable testimony given by a subpoenaed non-party witness. More so, such a standard would require an attorney to aggressively influence the initial testimony of a non-client witness instead of allowing the attorney to select among several reasonable strategic choices including choosing not to unduly influence a witness before all the evidence in a matter is fully obtained. Such a standard would change the landscape of legal malpractice cases, paving the way for a legal malpractice action every time an attorney loses at trial (one side loses at trial in 100% of completed trials).
FKB further argued that Plaintiff’s entire theory of legal malpractice hinges on a grossly speculative assumption: that if the eyewitness testified, either in his underlying deposition or at trial, that the truck he witnessed had a “flat-front,” the jury would have somehow been swayed to render a verdict in Plaintiff’s favor based on this non-dispositive detail despite the fact that the eyewitness did not observe signage, a license place, or the driver of the vehicle and despite the absence of other positive identification of the truck. In other words, even if all of Plaintiff’s factual assertions are true, FKB posited that the outcome of the underlying trial is inherently speculative and incapable of determination because not a single witness would have been able to identify the truck involved.
On February 27, 2020, the First Department, Appellate Division unanimously reversed the October 1, 2019 decision and granted summary judgment, dismissing the legal malpractice claim. In doing so, the First Department agreed with FKB’s position that there are two layers of speculation underlying Plaintiff’s allegation that the outcome of the 2012 trial would have been different “but for” the alleged malpractice because it was both speculative that the eyewitness would have testified differently if prepared differently and also speculative that, even if he had testified differently, the outcome of the trial would have been different because the eyewitness’s description of the truck was undetailed and the driver denied being involved in the accident. Specifically, the Court found that:
Defendants met their burden of showing that plaintiff cannot establish causation, in that plaintiff cannot prove that [he] would have prevailed in the underlying action “but for” defendant’s alleged negligence in preparing [the eyewitness] for his Deposition…Although there are issues of fact regarding whether defendants may have departed from the applicable standard of care, any claim that the jury would have reached a different result in the personal injury action is wholly speculative. First, it is wholly speculative that [the eyewitness] would have testified to a different description of the truck either at his deposition or at trial had he been shown the investigative reports. Although the investigative reports were read to him line by line at his deposition, his description of the truck did not change and he adhered to his belief, that the front of the truck he saw strike and run over plaintiff was bullnosed. Even if [the eyewitness’] statement in support of plaintiff’s motion in this case is accurate, that he would have testified differently had he been differently prepared, this, at best, creates an issue of fact about what he would have said at trial. It does not eliminate speculation about what the jury’s verdict would have been, given that [the eyewitness’] description of the truck otherwise lacked detail, and the absence of any additional proof identifying defendants’ truck and driver as being involved in underlying accident (emphasis added).
The First Department also agreed that the police report indicating that the eyewitness remembered that the truck has a flat-front could not be attributable to the eyewitness because he did not prepare or sign the report containing statements attributed to him. The First Department further adapted FKB’s argument that “[e]ven after hearing the information from the investigative reports, [the eyewitness] denied that he recalled describing the truck as having a flat front. Instead, he recalled that the truck had an engine in front. [The eyewitness] even made a drawing reflecting a roundish front hood on the truck. [The eyewitness] did not recall seeing any identifying markings on the truck, or license plate, nor did he see the driver.” All of these points further substantiated that even if Plaintiff’s assertions were true, it is entirely speculative that the outcome of the 2012 trial would have been different.
Finally, the First Department rejected Plaintiff’s argument that the First Department’s previous reversal of the CPLR § 3211 pre-answer dismissal in 2017, somehow requires denial of the summary judgment motion. In doing so, the First Department confirmed that CPLR § 3211 and CPLR § 3212 have different standards of review.
On August 27, 2020, First Department denied plaintiff’s motion to reargue and for leave to appeal to the Court of Appeals.