Defending Professional Negligence Claims After Moore: Locking the Plaintiff’s Expert and Winning Causation at Summary Judgment

Aaron M. Barham
Aaron M. Barham
Furman Kornfeld & Brennan LLP

Aaron M. Barham is a partner at Furman Kornfeld & Brennan LLP who concentrates his practice on professional liability and legal malpractice defense.

James D. Spithogiannis
James D. Spithogiannis
L’Abbate, Balkan, Colavita & Contini, L.L.P.

James D. Spithogiannis is a partner at L’Abbate, Balkan, Colavita & Contini, L.L.P., where he defends lawyers and accountants against professional liability claims.

Live Video-Broadcast: December 15, 2026

2 hour CLE

Tuition: $195.00
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Program Summary

 

Since December 2023, the Plaintiff’s Expert Carries the Burden. Make Them Carry It

The December 1, 2023 amendment to Federal Rule of Evidence 702 places the burden of proof on the side offering the expert. In legal malpractice and other professional negligence cases, that is the plaintiff’s standard-of-care expert. Paired with Rule 37(c)(1), the amendment lets defense counsel confine that expert to the four corners of the report.

Let an undisclosed opinion slide, and Rule 37(c)(1) exclusion is gone. Skip CPLR 3101(d), Frye, and late-disclosure preclusion, and the New York state-court parallel goes unused. Accept a speculative causation opinion, and New York’s “but for” standard under Rudolf v. Shayne goes untested. Ignore collectibility, and you lose an independent ground for dismissal. Defending an accountant? Causation, reliance, and privity defenses run in parallel.

You walk out with a deposition framework for locking the expert to the report, a motion sequencing strategy for Rule 702 and Rule 37 motions, and a summary judgment architecture built on statements of undisputed facts, expert affidavits, and 2024–2025 authority. This is litigation judgment you can apply in both federal and New York state court.

Key topics to be discussed:

  • When an Expert Is Required
    Decide early whether the plaintiff needs a standard-of-care expert at all, testing the “common knowledge” exception and the limits on expert reliance on ethics-rule violations.
  • Rule 702’s Shifted Burden
    Use the December 1, 2023 Rule 702 amendment and Rule 26(a)(2)(B) report requirements to make the proponent carry the burden on standard-of-care opinions.
  • Locking the Expert
    Confine the expert to the report with a deposition framework, Rule 37(c)(1) exclusion, and New York’s CPLR 3101(d), Frye, and late-disclosure preclusion.
  • Winning But-For Causation
    Apply New York’s “but for” standard under Rudolf v. Shayne to expose speculation, missing links, and intervening causes in the plaintiff’s causation opinions.
  • Independent Dismissal Grounds
    Build the record on collectibility, defeat speculative “better deal” damages in transactional claims, and raise causation, reliance, and privity defenses for accountants.
  • Motion Sequencing and Architecture
    Time Rule 702 and Rule 37 motions, then structure summary judgment with statements of undisputed facts, expert affidavits, and 2024–2025 authority.

This course is co-sponsored with myLawCLE.

Date / Time: December 15, 2026

  • 12:00 pm – 2:10 pm Eastern
  • 11:00 am – 1:10 pm Central
  • 10:00 am – 12:10 pm Mountain
  • 9:00 am – 11:10 am Pacific

Closed-captioning available

Speakers

Aaron M. Barham, Partner | Furman Kornfeld & Brennan LLP

Aaron M. Barham is a partner at Furman Kornfeld & Brennan LLP who concentrates his practice on professional liability and legal malpractice defense. Since joining the firm in 2018, Aaron has represented lawyers, accountants, and other professionals in complex litigation, disciplinary proceedings, and high-exposure claims. His practice spans a broad range of underlying subject matters—including commercial litigation, securities, employment, real estate, insurance coverage, trusts and estates, and medical malpractice—and he regularly advises insurers and insured professionals on risk management, liability exposure, and strategic resolution.

  • Education & Credentials

Aaron earned his J.D. from St. John’s University School of Law in 2012, where he was a member of the Moot Court Honor Society and served as Symposium Editor of the Journal of Civil Rights and Economic Development, and his B.A. from the University of Virginia in 2007. He is admitted to practice in New York and before the U.S. District Courts for the Southern and Eastern Districts of New York and the U.S. Court of Appeals for the Second Circuit.

  • Recognition & Leadership

Aaron has been recognized by Metro New York Super Lawyers for Professional Liability Defense every year from 2019 through 2026. He is a contributor and editor of the New York State Bar Association’s Legal Malpractice CLE Course Book (2019, 2021, 2023, and 2025 editions), reflecting his standing as an authority in the field.

  • Professional Involvement

A frequent CLE presenter and author, Aaron speaks and writes on professional liability, legal ethics, and the use of artificial intelligence in legal practice. His recent presentations include “Law Practice Management for Newly Admitted New York Attorneys” and “Legal Ethics, Judgment, and Accountability: Navigating AI with Diligence, Competence, and Candor” for the National Business Institute, as well as programs on malpractice risk management and ethical considerations in real estate closings. His publications include “Generative AI in the Law Office: Managing the Risks” (NYSBA/USI Affinity) and articles on the Corporate Transparency Act, statutes of limitations in legal malpractice claims, and expert testimony, among others.

  • Experience

Aaron defends lawyers, accountants, and other professionals in high-stakes malpractice litigation, disciplinary matters, and insurance coverage disputes across a wide array of underlying subject areas. His practice encompasses lawyers’ and accountants’ professional liability, attorney disciplinary defense, agents and brokers liability, appellate practice, cyber security and privacy, insurance coverage, and general liability litigation. Before joining Furman Kornfeld & Brennan, Aaron practiced at a New York City defense firm representing hospitals and healthcare professionals in complex medical malpractice litigation—experience that broadens his perspective in advising and defending professionals today.

 

James D. Spithogiannis, Partner | L’Abbate, Balkan, Colavita & Contini, L.L.P.

James D. Spithogiannis is a partner at L’Abbate, Balkan, Colavita & Contini, L.L.P., where he defends lawyers and accountants against professional liability claims. His work falls within the firm’s Attorney Liability and Accounting and Business Professionals practices. He came to professional liability defense after practicing commercial and real estate litigation.

  • Education & Credentials

James received his Juris Doctor from Brooklyn Law School in 2010, where he earned a CALI Excellence Award. He also holds a Bachelor of Business Administration from the University of Michigan – Ann Arbor. He is admitted to practice in the State of New York and before the U.S. District Courts for the Southern and Eastern Districts of New York.

  • Recognition & Leadership

Every year since 2019, James has been named a Rising Star in the New York Metro Edition of New York Super Lawyers. He was promoted to partner at L’Abbate, Balkan, Colavita & Contini, L.L.P.

  • Professional Involvement

James has taught continuing legal education for the New York State Bar Association, co-presenting the program “Starting A Solo Practice In New York 2023” with William T. McCaffery on May 16, 2023.

  • Experience

James’s practice centers on the defense of attorneys and accountants in professional liability matters, handled through the firm’s Attorney Liability and Accounting and Business Professionals practices. Before joining the firm, he concentrated on commercial and real estate litigation.

Agenda

SESSION 1 – Locking the Plaintiff’s Standard-of-Care Expert in Legal Malpractice Defense: Rule 702, Rule 37, and New York State-Court Traps | Aaron M. Barham | 12:00pm – 1:00pm

This session shows how to confine the plaintiff’s standard-of-care expert to the four corners of the expert report in legal malpractice and other professional negligence cases. Attendees will learn how the December 1, 2023 amendment to Federal Rule of Evidence 702 places the burden of proof on the side offering the expert, and how to combine that amendment with Rule 37(c)(1) to exclude opinions that were never disclosed or are poorly supported. The session also covers how New York’s state-court disclosure and admissibility rules create parallel opportunities to lock in and exclude the plaintiff’s expert. Attendees will leave with a deposition framework and a motion sequencing strategy they can apply in both federal and state court.

BREAK | 1:00pm – 1:10pm

SESSION 2 – Winning the Case Within the Case: Causation-Based Summary Judgment in Legal Malpractice Defense | James D. Spithogiannis | 1:10pm – 2:10pm

This session shows defense attorneys how to win legal malpractice cases on causation at the summary judgment stage using the case-within-a-case doctrine. It covers New York’s demanding “but for” causation standard, how to expose gaps and speculation in the plaintiff’s expert causation opinions, and how to use the collectibility doctrine as an independent ground for dismissal. It also explains the meaningful differences in causation rules between litigation and transactional malpractice claims, addresses parallel causation defenses in accountant liability cases, and lays out a concrete motion architecture supported by controlling and persuasive authority through 2024–2025.

Credits

Alaska

Approved for CLE Credits
2 General

Our programs are CLE-eligible through Alaska’s recognition of multi-jurisdictional reciprocity.
Alabama

Pending CLE Approval
2 General

Arkansas

Approved for CLE Credits
2 General

Arizona

Approved for CLE Credits
2 General

California

Approved for CLE Credits
2 General

Colorado

Pending CLE Approval
2 General

Connecticut

Approved for CLE Credits
2 General

District of Columbia

No MCLE Required
2 CLE Hour(s)

Delaware

Pending CLE Approval
2 General

Florida

Approved via Attorney Submission
2 General Hours

Receive CLE credit in Florida via attorney submission.
Georgia

Pending CLE Approval
2 General

Hawaii

Approved for CLE Credits
2 General

Iowa

Pending CLE Approval
2 General

Idaho

Pending CLE Approval
2 General

Illinois

Pending CLE Approval
2 General

Indiana

Pending CLE Approval
2 General

Kansas

Pending CLE Approval
2 Substantive

Kentucky

Pending CLE Approval
2 General

Louisiana

Pending CLE Approval
2 General

Massachusetts

No MCLE Required
2 CLE Hour(s)

Maryland

No MCLE Required
2 CLE Hour(s)

Maine

Pending CLE Approval
2 General

Michigan

No MCLE Required
2 CLE Hour(s)

Minnesota

Pending CLE Approval
2 General

Missouri

Approved for CLE Credits
2.4 General

Mississippi

Pending CLE Approval
2 General

Montana

Pending CLE Approval
2 General

North Carolina

Pending CLE Approval
2 General

North Dakota

Approved for CLE Credits
2 General

Our programs are CLE-eligible through North Dakota’s recognition of multi-jurisdictional reciprocity. Section 1, Policy 1.14
Nebraska

Pending CLE Approval
2 General

myLawCLE reports attendance to Nebraska on each attorney’s behalf for all programs. Please do not self-report.
New Hampshire

Approved for CLE Credits
120 General minutes

As of July 1, 2014, the NHMCLE Board no longer provides pre- or post-approval of courses. Attendees must self-determine whether a program is eligible for credit, and self-report their attendance online at www.nhbar.org, based on qualification provisions of Rule 53.
New Jersey

Approved for CLE Credits
2 General

Our programs are CLE-eligible through New Jersey’s recognition of multi-jurisdictional reciprocity, except for the courses required under BCLE Reg. 201:2
New Mexico

Approved for CLE Credits
2 General

Nevada

Pending CLE Approval
2 General

New York

Approved for CLE Credits
2 General

Our programs are CLE-eligible through New York’s Approved Jurisdiction Group “B”.
Ohio

Pending CLE Approval
2 General

Oklahoma

Pending CLE Approval
2.5 General

Oregon

Pending CLE Approval
2 General

Pennsylvania

Approved for CLE Credits
2 General

Rhode Island

Pending CLE Approval
2.5 General

South Carolina

Pending CLE Approval
2 General

South Dakota

No MCLE Required
2 CLE Hour(s)

Tennessee

Pending CLE Approval
2 General

Texas

Approved for CLE Credits
2 General

Utah

Pending CLE Approval
2 General

Virginia

Not Eligible
2 General Hours

Vermont

Approved for CLE Credits
2 General

Washington

Approved via Attorney Submission
2 Law & Legal Hours

Receive CLE credit in Washington via attorney submission.
Wisconsin

Pending CLE Approval
2 General

West Virginia

Pending CLE Approval
2.4 General

Wyoming

Pending CLE Approval
2 General

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