This report from the Wall Street Journal Law Blog suggests that JP Morgan may have had to raise its buying price from $ 2 to $10 because of legal malpractice.  What was the legal malpractice?  A sentence inadvertently left in the agreement, which required JP Morgan to guarantee certain trades. 

Whether this is true or not, this Law blog sentence certainly sounds right: "M&A lawyering, remunerative though it may be, is a bit of a thankless job. If you do it well, and the deal goes off smoothly, perhaps you get a Lucite deal toy and a seat at the closing dinner, but no one really notices. But the moment there’s an un-dotted i or an un-crossed t, or if negotiations head south, then all eyes are on you: Must be the lawyers’ fault! "

Clients often come to speak with a legal malpractice attorney, and concentrate on the mistakes made by their attorney.  While there can be many mistakes, not all of them lead to a successful case.  Here is an example of many mistakes in a NJ case in which, at the end, there may be no provable damages. In VERDURE ASSET CORP., v. JONATHAN WHEELER, ESQ., THE LAW OFFICES OF JONATHAN WHEELER, P.C., Defendants, , the SUPERIOR COURT OF NEW JERSEY ,
APPELLATE DIVISION  worked its way through a long list of mistakes, possible kickbacks, spoliation and other problems to come to this conclusion:

"Therefore, we are convinced that there is a genuine issue of material fact as to whether Verdure suffered any monetary loss due to the damage to the truck repair shop. That issue cannot be resolved as a matter of law. We reject defendants’ contention that the order granting summary judgment should be affirmed on this alternative basis."

This legal malpractice case from New Jersey illustrates an interesting point.  DONALD ERICKSON, Plaintiff-Appellant, v. JEFFREY S. LEONARD, ESQ., and HERSH, RAMSEY AND BERMAN, P.C., Defendants-Respondents. 

 Plaintiff’s attorney seems to have narrowed the issues after remand from an appeal, and narrowed them so much, that he lost a second motion for summary judgment.  From reading the decision, it seems that if he had not been so argreeable, there might have been a different outcome.

"On June 1, 2006, the parties appeared before the trial court for a case management conference, contending that they believed the issue, of whether defendants were negligent by not asserting the corporate shield defense in the underlying action, could be resolved on cross-motions for summary judgment. In presenting the matter to the trial court, plaintiff’s counsel stated:

Essentially, the whole issue of the malpractice is whether or not the [defendants] should have made a motion for summary judgment to get [plaintiff] personally out of that case.

We say [they] should have. They say it wouldn’t have been successful.

. . . .

That’s the one question: Was [plaintiff] entitled to have gotten out of the underlying case on summary judgment or not. If he was, the defendants are guilty of malpractice. If he wasn’t, we lose. End . . . of story . . . .

In addressing how the motion would be presented, defense counsel stated:

[A]ll I got to show you is that there was enough for a judge . . . presented with that issue in [20]01 to have said, fact questions, I’m not granting the motion. So I win the motion by just demonstrating enough of a burden to show . . . that the underlying motion wouldn’t have been granted.

The trial judge replied in the affirmative.

"Here, on plaintiff’s motion for summary judgment, the trial judge would have considered the motion as if it had been brought by plaintiff in the underlying action, seeking dismissal of Visakays’ complaint, and as such, would have construed the facts, giving the Visakays, the non-moving parties, "all legitimate inferences therefrom." R. 4:46-2(c). We are satisfied that the trial judge properly denied plaintiff’s motion for summary judgment, which sought a determination that he was not liable to the Visakays in the underlying action as a matter of law because of the corporate shield doctrine. We do not determine whether plaintiff would have been successful in defending the underlying action based on the corporate shield doctrine if the matter had proceeded through trial to a final judgment, only that questions of material fact existed, prohibiting the grant of summary judgment. Having correctly denied plaintiff’s motion, the judge properly granted defendants’ cross-motion, not only because of the limited theory of negligence contained in plaintiff’s expert liability report, but because of the agreement reached between the parties at the case management conference. "That’s the one question: Was [plaintiff] entitled to have gotten out on the underlying case on summary judgment or not. If he was, the defendants are guilty of malpractice. If he wasn’t, we lose. End . . . of story . . . ." "

Plaintiff, a kid on in-line skates, runs into debris at a construction site.  He hires defendant attorneys to sue the construction defendants and the land owner for debris on a public sidewalk.  First he loses against one defendant, and then, by res judicata against the other,  Why did he lose? 

If, on the one hand it was because the debris was open and obvious, then it was not the attorney’s fault.  If, on the other hand it was because his attorneys did not do discovery, then there may be legal malpractice.  Gamer v. Ross, 2008 NY Slip Op 02107, Decided on March 11, 2008 ,
Appellate Division, Second Department , look at that question.

"Moreover, a landowner may be held liable for injuries sustained by a third party due to the defective condition of a sidewalk adjoining its property where it retains an independent contractor to perform work for its benefit, the contractor creates a special danger upon the sidewalk in the course of its work that is inherent in the work and anticipated by the landowner, and the landowner has notice of the condition (see Emmons v City of New York, 283 AD2d 244, 245; cf. Schwartz v Merola Bros. Constr. Corp., 290 NY 145, 155). Since it is well settled that, under those circumstances, "such owner will be liable for injuries resulting from its nonperformance, even though the work is done by [a] contractor" (2A NYJur2d Agency § 413), we cannot subscribe, on the facts presented, to the defendants’ view that no amount of additional discovery could have prevented the dismissal of the underlying actions against the landowner and contractor.

Equally unavailing is the defendants’ claim that the instant action is barred by principles of res judicata and collateral estoppel. Contrary to the defendants’ contention, the pretrial dismissal of the underlying actions did not constitute conclusive proof that those actions were without merit; it showed only that the plaintiffs were unable to raise triable issues of fact regarding the potential [*3]liability of the landowner and its contractor. The plaintiffs are not precluded by principles of res judicata or collateral estoppel from alleging, in the instant action, that their inability to raise triable issues of fact in the underlying actions was caused by the defendants’ failure to conduct proper discovery. "

This case Wolski v. Wandel is a well written, well thought out discussion of summary judgment motions in legal malpractice.  Although the primary subject is the use of expert testimony in opposing a motion for summary judgment, this decision sets forth many aspects of Nebraska Legal Malpractice law.

The Madison Record regularly reports on legal malpractice cases within its geographical confines.  Here is a long article on a current trial.  Of interest?  The juror’s attitude.

"Attorneys in the Thompson Coburn legal malpractice trial care deeply about constructive trust and fiduciary duty, but the jurors don’t seem to care at all.

On Thursday, March 20, with sunshine beckoning through high windows in Circuit Judge Daniel Stack’s court, the jurors wore expressions like teens in detention.

They expected to have returned to their daily routines by this time, but instead they sat in their box watching men exchange contempt.

At the height of hostility between Regions Bank counsel Rex Carr and Thompson Coburn witness retired Adams County Judge Dennis Cashman, three jurors dozed, one slumped forward, one shook his legs, and one bent hard left.

At one point Carr dramatically sent a single sheet of paper to each juror and then ran so far off point that, one by one, the jurors slid the sheets into their folders. "

Here is a short  report on legal malpractice verdicts in Maryland, Virginia and DC.  They were:

"Metro Verdicts Monthly recently provided data on legal malpractice settlements and verdicts in Virginia, Maryland and Washington, D.C. The median legal malpractice settlement/verdict in Washington D.C. was a whopping $262,500.00. In Virginia and Maryland, the median legal malpractice settlement/verdict was $212,500.00 and $140,211.00 respectively"

NY Lawyer reports that a legal malpractice case against Drinker Biddel, dismissed on summary judgment, has been reversed and remanded for trial.  In a double whammy, DB’s cause of action for legal fees has also been reversed.

"A New Jersey appeals court on Tuesday reinstated a claim that 630-lawyer Drinker Biddle committed malpractice that forced a litigation client to make a bad settlement and lose hundreds of thousands of dollars.

The judges also set aside a trial judge’s ruling last year that the client, Verdure Asset Corp. of New York, owed the firm $240,000 for work its Princeton office did on the troubled case in 2003.

Instead of dismissing the malpractice suit on summary judgment, a Mercer County, N.J., judge should have let a jury decide, the appeals panel ruled in an unpublished opinion, Verdure Asset Corp. v. Wheeler, A-3084-06.

Lead defendant Jonathan Wheeler, a Cherry Hill solo who also represented Verdure, won dismissal in 2006 and is no longer part of the case.

Verdure turned to Wheeler in 2000 to sue two environmental companies whose work removing oil tanks allegedly devalued a 47-acre property Verdure owned in Hamilton Township. "