In New York Law Journal Column, Professor Anita Bernstein and John Crain ’19 Suggest Particularity Pleading to Validate Malpractice Claims

In a recent column in a series about legal malpractice in the New York Law Journal, Anita Bernstein, Anita and Stuart Subotnick Professor of Law, and John Crain ’19, propose a solution for countering judge-imposed burdens not found in New York Judiciary Law §487, which provides for treble damages in legal malpractice cases when a lawyer’s behavior was particularly egregious.

While their Nov. 30 column described a troubling pattern of New York judges imposing burdens on §487 plaintiffs that do not exist in the statute, mainly due to concern that the law over-indulges weak claims, Bernstein and Crain suggest the use of “particularity pleading” through CPLR 3016(b) as a solution. CPLR 3016(b) states “where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail.”

Through a series of §487 case law examples, Bernstein and Crain show how particularity pleading effectively separates malpractice claims that deserve judicial attention from those that don’t.

“Judges might well prefer to keep their published decisions short, of course,” wrote Bernstein and Crain. “But when they explain how a pleading delivered the ‘who, what, where and when’ that CPLR 3016 always needs to hear, lawyers and clients who weren’t there for the deception gain helpful information about what makes a claim good or bad.”

Bernstein is a nationally recognized authority on tort law and feminist jurisprudence, as well as professional responsibility and products liability. Her awards include the first Fulbright scholarship in European Union affairs given to a law professor. She is a member of the American Law Institute and a past chair of the Association of American Law Schools Executive Committee on Torts and Compensation Systems. Consistently recognized as one of the most highly cited scholars in the field of Torts and Products Liability, by Brian Leiter's Law School Reports, Bernstein’s writings have appeared in dozens of law reviews.

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