Here is a Caroline Elephant blog blurb on the 7th Cir’s problem with briefs. 


"Hey 7th Circuit — Why Not Cut Lawyers Some Slack?

Howard Bashman, author of How Appealing, warns in an article ("Commentary: Have 7th Circuit Judges Gone Off the Deep End?") that the 7th Circuit judges Posner and Easterbrook risk becoming "fusspots and nitpickers" when they berate or sanction attorneys for minor and inconsequential mistakes. If you think that Bashman’s use of words like "fusspots and nitpickers" is a bit harsh, bear in mind that he’s merely quoting the honorable Judge Posner.

Bashman’s column discusses a recent 7th Circuit decision, Smoot v. Mazda Motors, that Bashman first wrote about in depth here at his blog. In accordance with the federal rules of appellate procedure and the Seventh Circuit’s local rules, the parties were required to set out a statement of jurisdiction and specify the basis for diversity jurisdiction and the amount in controversy. In Smoot, neither the plaintiffs nor the defendants provided an accurate statement of jurisdiction, so the court ordered the parties to provide supplemental statements describing jurisdiction. Again, as Bashman describes, the parties erred:

One of the statements said that the amount in controversy was $75,000, even though the applicable statute requires that the amount in controversy exceed $75,000 in order for diversity of citizenship jurisdiction to be proper. And because the insurance company defendant had its headquarters outside of the United States, and was created under the laws of another country, the basis for establishing diversity of citizenship was a bit more complex than in the average case.

The errors, albeit minor to many, caused Judge Posner, joined by Chief Judge Easterbrook to lash out at counsel:

We have been plagued by the carelessness of a number of the lawyers practicing before the courts of this circuit with regard to the required contents of jurisdictional statements in diversity cases. It is time … that this malpractice stopped. We direct the parties to show cause within 10 days why counsel should not be sanctioned for violating Rule 28(a)(1) and mistaking the requirements of diversity jurisdiction. We ask them to consider specifically the appropriateness, as a sanction, of their being compelled to attend a continuing legal education class in federal jurisdiction.

Judge Evans dissented, disagreeing with his colleagues’ characterization of the lawyers’ errors. Evans wrote:

Sure, the plaintiffs should have said the amount in controversy exceeds $75,000, not that it is $75,000. And sure, both sides stumbled on their declarations regarding the dual citizenship of the corporate defendants. But, at best, these are low misdemeanors; yet the court treats them like felonies. I would not label these minor flaws as ‘blunders,’ nor would I come close to saying this is ‘malpractice’ which must be stopped."

Bashman recognizes the importance of enforcing jurisdictional limits, but ultimately, he supports Evans’ approach. Bashman writes that there’s no reason to berate attorneys or elevate minor mistatements to the level of malpractice. Bashman also suggests that responsibility for ensuring jurisdiction lies with the federal district court and that judges should review the district court’s opinions to determine whether jurisdiction has been properly established.

Posted by Carolyn Elefant "

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.