A Scathing Denial of Summary Judgment in a Legal Malpractice Case
We don't often see a US District Court Judge get so worked up. Here, in PAUL BLACK, Plaintiff, -against- JEFFREY S. SCHWARTZ and LAW OFFICE OF JEFFREY S. SCHWARTZ, Defendants.09-CV-2271(JS)(GRB) UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK 2012 U.S. Dist. LEXIS 132524 we see a garden or varietal legal malpractice case gone awry.
"Defendants argue that California law does not permit parties who are hit with sanctions to recover the amount of the sanctions from their lawyers. (Defs. Br. 13.) They cite Jocer Enterprises, Inc. v. Price, Roper, Majeski, Kohn & Bentley, 183 Cal. App. 4th 559, 107 Cal. Rptr. 3d 539 (Cal. Ct. App. 2010) for the proposition "that an award for attorney fees imposed by the Court a client [sic], individually, may not be recovered as damages in a subsequent legal malpractice action." (Defs. Br. 13.) Given the loose relationship Defendants' brief has with the facts in this case--see below--it is perhaps unsurprising that Jocer stands for no such thing."
"Defendants argue that Plaintiff's injury was really caused by his not having a factual basis to prevail on the merits in the California Action. This is a variation of Defendants' first argument, and it has at least two flaws. One, it is [*7] premised on a flagrantly misleading characterization of Plaintiff's expert's deposition. Noting that Plaintiff's expert testified that Defendants may have had a colorable basis to sue LTN--the Land America subsidiary--Defendants transform this opinion into a finding that Defendant's decision to sue Land America was not negligent. (Defs. Br. 16.) In fact, Plaintiff's expert agreed hypothetically that there might have been an arguable claim against LTN but he was clear that Land America would not have been a proper target. (Defs. Ex. M at 79-80, 94.) Defendants have the gall to make this argument again in their reply (see Defs. Reply 4) even after Plaintiff pointed out that it is based on an incorrect reading of the expert's deposition (Pl. Opp. 5-6). Two, this argument confuses the claimed injury in this case. Plaintiff does not claim that he would necessarily have prevailed on the merits in the California Action; rather, he simply argues that but for Defendants' malpractice, he would not have been sanctioned for misconduct."
"As an initial matter, the Court notes that Defendants' citations to evidence in this motion are virtually meaningless. The exhibits, which are referred to by letter throughout Defendants' papers, were not included with Defendants' courtesy copies to the Court (in violation of the undersigned's individual motion practices), and they are not labeled by letter on ECF. More troublingly, citations to Schwartz's 167-page deposition do not contain page numbers (the absence of page references was an issue in Defendants' summary judgment brief as well)"
"Finally, in light of Defendants' blatant mischaracterizations discussed above, the Court is not inclined to find that either party has behaved worse than the other. Cf. Schlaifer Nance & Co., Inc. v. Estate of Warhol, 194 F.3d 323, 341 (2d Cir. 1999) ("Although, in light of our disposition of this appeal, we need not address whether such unclean hands may preclude the imposition of [*13] sanctions, we observe that a court considering sanctions can and should consider the equities involved before rendering a decision.")."