Last week we reported on the reappearance of Dupree v. Vorhees in the Judiciary Law § 487 pantheon. Today, we see that Melcher v Greenberg Traurig LLP 2017 NY Slip Op 31727(U)
August 15, 2017 Supreme Court, New York County Docket Number: 650188/2007 Judge: O. Peter Sherwood has similarly bobbed up.
Melcher has a fascinating backstory, with documents disappearing and then reappearing, only to be accidentally burnt. Melcher v Greenberg Traurig, LLP 2014 NY Slip Op 02213 [23 NY3d 10] . The case set the statute of limitations at 6 years.
But, onto today. Judge O. Peter Sherwood decided several interesting evidentiary points. The most important is that no expert testimony is necessary to show deceit to a jury. The services of two of the most preeminent ethics attorneys was dispensed with by motion. “The testimony sought to be admitted through the “expert” testimony of Patrick Conner and Roy Simon intrudes on areas reserved to the court (see id.) and it is also likely to confuse the jury. The jury is being called upon to determine whether Leslie Corwin, an attorney, engaged in deceit or colluded with an intent to deceive the court or a party. The jury is not being asked to resolve whether or not he violated the Code of Professional Responsibility (the Code) where the applicable standards are different than those involved here. Moreover, the concept of deceit is readily understandable and does not require interpretation by experts. “
Evidence of whether an attorneys’ conduct is deceitful is also not the fodder for experts. “Although evidence concerning the role of the lawyer in the adversary system may be useful background, issues as to whether and when a lawyer has an obligation to speak are legal questions reserved to the court. Expert testimony is neither helpful nor permitted. “
In a part of the decision less universal, the court precluded damages other than the cost of attorney work in the case. No loss of value in the underlying settlement and non-payment due to deceit was permitted. “Regarding damages, the testimony plaintiff seeks to offer as to what he might have been able to collect in the Apollo action had he been able to obtain a judgment during the time that Apollo Medical Fund was in better financial health versus the amount be obtained in settlement years later but for the deceit, is entirely speculative. ”
“Plaintiff cannot show that defendant’s alleged deceits were the proximate cause of any injury, except perhaps “excess legal expenses” incurred in the Apollo action (see Melcher v Greenberg Traurig LLP, 135 AD3d 547, 554 [Pt Dept 2016]; see also Zimmerman v Kohn, 125 AD3d 413 [1st Dept 2015] [cited in Melcher]). ”
Finally, the judge cast doubt on how to prove those excess legal expenses. “Defendants’ fees expert, Beth Kaufman, proposes to opine on the standards for legal fees damages in a Section 487 action but relies on the standards applicable to statutory fee shifting cases were, unlike this case, there rarely is any direct evidence of the reasonableness of the fees being sought. Further in fee shifting cases, claimants are on notice prior to commencement of the action that they will be required to show the reasonableness of the fees being requested and therefore must keep time records with a level of detail that a paying client might not require. Here, there is direct evidence of the “reasonableness” of the fees, specifically the amount the client paid for the services performed. The rate plaintiff paid his lawyer in the underlying action cannot be met by purported “expert” testimony as to what a court might award in a fee shifting case. The rate which is reasonable here was fixed by the marketplace. Although courts routinely require lawyers in fee shifting cases to detail how time claimed was spent, paying clients often do not. To require plaintiff to break out their fees separating those earned on any given day between those associated with routine prosecution of the case and excess fees devoted to meeting alleged deceitful evidence is neither feasible nor required. Accordingly, the approach taken by Kaufman is unsupported and will not be permitted. ”