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Court doesn't force legal malpractice victim to appeal first

Though this ruling is not from a California court, it provides an interesting decision for people interested in legal malpractice matters generally.

The top court in New York State has ruled that a victim of legal malpractice need not always try to appeal his or her unjust verdict before he or she can take action against the negligent attorney. This decision likely will make it easier for victims to pursue malpractice claims, by declining to possibly require them to continue to work with the attorney that put them in this position in the first place.

The case that led to this legal malpractice dispute was a medical malpractice claim against the Veterans Administration. The plaintiff says that the first law firm he hired was not able to pursue its duties in a timely fashion, so it recommended that he switch to another firm.

That firm agreed to take the plaintiff’s case. It was not until later that it discovered that the doctor that the plaintiff was suing worked for one of the second firm’s clients. The plaintiff went back to the first firm, but by that time the defendants were able to get the case dismissed due to the statute of limitations.

The plaintiff’s subsequent legal malpractice suit reached the New York Court of Appeals, the top court in that state. One of the main questions before the court was whether the plaintiff had exhausted all necessary legal options before suing his attorneys.

Not necessarily, the court ruled. The ruling said that an allegedly negligent lawyer “should be given the opportunity to vindicate him or herself on appeal,” but explicitly declined to force all injured plaintiffs to do so.

Instead, the court applied a “likely to succeed” standard. If an appeal is likely to succeed, the plaintiff “should be required” to appeal, though it is not clear if the court means that the plaintiff hire the accused attorney to do so.

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