The question of whether an attorney can be held liable for failing to properly prepare an eyewitness for a deposition was addressed by an appellate court. A disgruntled client who lost a jury trial concerning a motor vehicle accident claimed that if only the sole eyewitness had been better prepared for a nonparty deposition, they would have won. On February 27, 2020, an appellate court covering Manhattan ruled that the legal malpractice claim had to be dismissed as too speculative. The legal malpractice plaintiff could never prove that “but for” the failure of an attorney to better prepare the sole eyewitness for his deposition the jury would have found in favor of the plaintiff. Unfortunately, this eyewitness was a terrible witness who could not be rehabilitated.

The problem for this legal malpractice plaintiff who was “badly injured” was that the sole eyewitness had given conflicting and inconsistent accounts of what the truck looked like.The crucial issue at the trial was identification of the offending truck. The accident was a hit and run which was investigated by the NYC Police Department. The eyewitness described the truck as a green colored garbage truck with a bull nose front end to one police investigator and to another reported it as a dump truck with a flat front. The appellate court dismissed the legal malpractice complaint finding that it was too speculative to predict whether a better prepared unreliable eyewitness would have persuaded the jury to find in plaintiff's favor. Caso v Miranda, 180 A.D. 3D 611