Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, LLP

In Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, LLP (301 AD2d 63 [1st Dept 2002]), a legal malpractice action in which the plaintiff relied on the affidavit of another attorney to oppose a summary judgment motion, the court, in affirming the grant of summary judgment, stated: "essentially, the affiant-attorney was offering a legal opinion as to what performance or absence thereof constitutes legal malpractice. But making those determinations is the function of a court. As we recently pointed out in another case, 'expert witnesses should not . . . offer opinion as to the legal obligations of parties . . .; that is an issue to be determined by the trial court. Expert opinion as to a legal conclusion is impermissible.' An expert may not be utilized to offer opinion as to the legal standards which he believes should have governed a party's conduct. We do not rely on an attorney's affidavits to tell us what constitutes malpractice. Moreover, the affidavit offered here raises an additional concern. It is tinged with the sense that since the affiant would have done things differently, therefore the attorney being challenged was incompetent. Such a contest of strategies is easily reduced to a malpractice standard that impermissibly compares the defendant-attorney's choice of strategies with the afterthoughts later offered by plaintiff's now-favored attorney, for whom bias is a necessary concern, rather than measuring counsel's performance against the much more objective standard of the profession's commonly prevailing practices."