Depositions in New York used to be a variant of the Wild West rodeo.  Bucking broncos, trying to stay up on the horse, pick your metaphor.  New attorneys soon learned the usual tricks, "I’ll take that under advisement", "I direct the witness not to answer" and all that.  With Administrative orders things have changed here.  Ever have a really really bad deposition experience?

A gross example of bad deposition behavior is found here  Of interest is the fact that attorney Ziccardi is being sanctioned along with his client.  We won’t repeat the vulgarities here, but read the entire story for a look at a bad situation.

"A federal judge has levied sanctions of more than $29,000 on a lawyer and his client after finding that a deposition was a "spectacular failure" because of the client’s constant use of vulgar language and insults and dodging or refusing to answer questions, and his lawyer’s failure to rein him in.

In his 44-page opinion in GMAC Bank v. HTFC Corp., U.S. District Judge Eduardo C. Robreno found that Aaron Wider, the CEO of HTFC, engaged in "hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony."

Robreno noted that Wider used the "F word" or variations of it 73 times during the deposition and that the video shows that his lawyer, Joseph R. Ziccardi of Chicago, at one point "snickered" at his client’s conduct.

"In the final section of the opinion, Robreno explained why Ziccardi, too, must be sanctioned for Wider’s misconduct.

"Throughout the deposition, notwithstanding the severe and repeated nature of Wider’s misconduct, Ziccardi persistently failed to intercede and correct Wider’s violations of the Federal Rules," Robreno wrote.

"Instead, Ziccardi sat idly by as a mere spectator to Wider’s abusive, obstructive, and evasive behavior; and when he did speak, he either incorrectly directed the witness not to answer, dared opposing counsel to file a motion to compel, or even joined in Wider’s offensive conduct," Robreno wrote.

In a footnote, Robreno said the video showed Ziccardi "chuckling at Wider’s abusive behavior" and Bodzin’s comment that "’your snickering counsel is not appropriate either, because all you’re doing is encouraging the behavior of your client.’"

In court papers, Ziccardi argued that he believed he had tried to curb his client’s behavior, but that most of his efforts to do so occurred off the record. "

Attorneys are generalists, no attorneys are specialists, no they can handle anything?  The profession is of two minds on this question.  Any attorney, duly admitted, etc. may offer opinion evidence on the behavior of another attorney, and any attorney might simply step up to the counsel table and give an appearance.  Once that happens, the trial is on.

However,  it’s quite obvious that experience is not only nice, it’s a necessity. Here is an article about defending the DUI case.  Somewhat long, and a little argumentative, it makes a very good point.  Is the person writing this article more likely to obtain a solid professional result, or will the friendly generalist do better for the criminal defendant?

"Almost every attorney is at one time or another confronted with a client, friend, or family member charged with drunk driving. Because accused drunk drivers are immediately charged with a crime, drunk-driving cases represent the single largest category of criminal infractions of all reported cases, with about 200,000 more cases processed each year than all theft and larceny offenses combined. Even attorneys who do not generally handle criminal matters are routinely asked how an accused person should proceed in a drunk-driving case.In the 1960s, driving under the influence of alcohol was considered a minor offense, leading to modest fines; in the 1990s, it is considered the most serious misdemeanor offense. In several states, repeat offenders are considered felons."

NJ has some traps for the unwary in legal malpractice, and this case showcases several of them. In CELESTE GUIA PINTO, v.MCGOVERN, PROVOST & COLRICK, SUPERIOR COURT OF NEW JERSEY ,APPELLATE DIVISION DOCKET NO. A-3186-06T53186-06T5 we see the Puder rule on settlements, the rule on certificates of merit, and an application of the Sheridan v. Sheridan rule on reporting fraud.

Points of interest:  mother, an immigrant, accumulates a significant estate, including 5 properties.  She wants to reward son, and asks him to get an attorney to draw up a will which will give him some of the funds and part of some of the properties.  She signs what eventually turns out to be deeds making them joint owners of all the properties.

Read on, in the case for how the settlement turns out to sink the legal malpractice case.

Here is a legal malpracice statute of limitationscase in which the Appellate Division , First Department give a routine analysis of a legal malpracice case, dismissed on a CPLR 3211 motion in Supreme Court, and reversed in the Appellate Division. West Vil. Assoc. Ltd. Partnership v Balber Pickard Battistoni Maldonado & Ver Dan Tuin, PC , 2008 NY Slip Op 01844
Decided on March 4, 2008 ,Appellate Division, First Department . 

As the defendant is a PC, it appears that they moved to dimiss against the individual PC shareholders, which the court denied, on the basis of BCL 1505(a).  We have not seen this staute cited in a motion to dismiss setting.  The statute holds that all shareholders, agents, etc are personally liable under the circumstances quoted.

Keep this statute in mind when viewing allegations about specific attorneys in a PC.

Here is a SDNY case in which plaintiffs sued for legal malpractice, and lost the bench trial and the appeal.  The decision does not spell out what was ambiguous about the retainer agreement, but both the bench and the appeal court determined that this "engagement" letter was insufficient to spell out an attorney-client relationship.

LATIN AMERICA FINANCE GROUP, INC. and WILLIAM VAN DIEPEN, Plaintiffs-Appellants, -v.- CARLOS PAREJA and PAREJA Y ASOCIADOS, Defendants-Appellees. 06-3888-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

2008 U.S. App. LEXIS 4048

Interesting too was the trial court’s inclusion and exclusion of expert testimony.  Apparently for defendant, it permitted the testimony.  It excluded for plaintiff because the expert testimony consisted of "fact finding, the application of law to facts, and the drawing of conclusions as a result of the application of law to facts. "  This problem exists at all times, but is especially difficult in a bench trial, where the fact finder is, after all, a judge who neither needs, nor wants, application of law to facts.

BLT law blog [look it up for yourself] reports that Blackwater [the military and security subcontractor] is suing Zuckerman Spaeder in legal malpractice.  Here it is from the BLT:

"Wiley Rein has hired attorneys at Zuckerman Spaeder to represent the firm in the $30 million Blackwater suit. In D.C. Superior Court, the private security contractor filed suit against Wiley Rein and former attorney Margaret Ryan in late January for legal malpractice.

Elizabeth Taylor and Mark Foster of Zuckerman Spaeder are handling the representation. The firm has until March 13 to file an answer to the complaint. See this Legal Times article for more about the lawsuit ."

We write in a large legal community, and this story is from a smaller one.  Nevertheless, the interior quote caught  our attention.  This trial Magna Bank v. Coburn has been going on in Madison County, and has been widely reported.  Here is yet another story, but with a twist.  Sparsely attended untill now, the courtroom filled with spectators, all wanting to see this expert witness, Tom Keefe.

Watch for the interior qote.  Mr. Keefe’s fee is $ 1000 per hour.

"That changed dramatically February 27, as Stack’s third floor courtroom was jammed with legal professionals from every field: trial attorneys, probate lawyers, prosecutors, public defenders and even judges came by to witness the day’s proceedings.

The expert witness, attorney Tom Keefe, took the stand to explain to jurors why, in his opinion, Thompson Coburn committed malpractice while representing Magna Bank. He said he agreed to appear to "make amends for the two-week brain fart" he had when he represented fellow lawyer Stephen Tillery in a case years ago and is donating his appearance fee to charity.

Here, in a story from Atlanta from the Augusta Chronicle is the story of an Atlanta law firm that has a multiple number of legal malpractice cases facing it.  One in particular, Jennifer v. Fleming the jury will be permitted to hear about an additional 22 cases.  Two  things stand out in this case:

a.  Defendants cannot call attorney experts to denigrate plaintiff’s underlying Personal Injury matter;

b. The jury may hear of 22 unrelated legal malpractice cases too.

"On Thursday, U.S. District Magistrate Judge W. Leon Barfield framed what a federal court jury will hear in April when the civil lawsuit Wendell A. Jenifer filed against the Fleming firm, John Fleming and Williams Fleming goes to trial.

"I have come to the conclusion … that much of the insurance evidence proffered by the plaintiffs in this case is admissible," Judge Barfield said.

In 2002, Fleming attorney Richard Ingram contacted the firm’s insurance company about the possibility of 22 malpractice claims against the firm. In documents the jury will see, unless another judge rules differently at trial, Mr. Ingram lays the blame at the feet of John Fleming and his nephew William.

Judge Barfield said Thursday it is plausible that the Fleming firm found itself in "a firestorm" in 2002. The insurance company canceled the firm’s policy, and it was re-instated only when John and William Fleming resigned. John Fleming returned a month later.

It is plausible, Judge Barfield said, that the firm’s attorneys realized that any claim Mr. Jenifer might file would not be covered by the insurance. The evidence about the other insurance claims is relevant because the firm admitted to wrongdoing until it came to Mr. Jenifer’s case, the judge said.

The judge ruled the defendants cannot call other attorneys as witnesses to give opinions about the merits of Mr. Jenifer’s case against the hotel. That will be a decision the jury must make in determining whether there was legal malpractice, Judge Barfield said.

Here are some NY state cases this week in Legal Malpractice:

1.Max Markus Katz, et al., appellants, v Herzfeld & Rubin, P.C., respondent.

APPELLATE DIVISION, SECOND DEPARTMENT
2008 NY Slip Op 1507           February 19, 2008

This case demonstrates two potent defenses:  "we were fired before the end of the case, and the new attorneys could have fixed the problem…"

Plaintiffs argued that they were forced to settle a PI action for  than they could have recovered ,Defendants submitted evidence establishing that  the law firm’s refusal to "pursue a highly questionable claim for exaggerated lost earnings damages" and "its purported delay in retaining an economist to evaluate the lost earnings claim" , had nothing to do with the the amount of the settlement  in the underlying action.

More telling, defendants were discharged and plaintiffs hired new counsel five months before they settled the underlying action.  The Court found  no proximate cause, and that "subsequent counsel had a sufficient opportunity to protect the clients’ rights "

 

2.     Kathleen Velie, et al., appellants, v Ellis Law, P.C., 

 APPELLATE DIVISION, SECOND DEPARTMENT
2008 NY Slip Op 1533; February 19, 2008

Here, in an underlying slip on ice case it seems that the defendant attorneys simply did not start the case within the statute of limitations period, With no discussion of the underlying case, or why they could have successfully sued the snow removal people or the property owners, the Appellate Division found that the defendant attorneys failed in their prima facie obligation in summary judgment.  Traditionally this means that there was no attorney’s affidavit, or some especially important element of the motion for summary judgment was missing. This is surprising, in view of the identities of the defending and prosecuting attorneys, both of whom are powerhouses in the field.  Note that this Duchess county case attracted a significant NY plaintiff’s law firm, and had a well known Westchester legal malpractice defense firm making the MSJ.

 

Here is an unusual "too early" case in legal malpractice: Analisa Salon Ltd. v. Elide Properties LLC, 7582/05 , January 28, 2008  

"Essential to a legal malpractice claim is proof that the alleged acts of an attorney proximately caused compensable damages. If there are no damages, there can be no cause of action. See Zletz v. Outten and Golden LLP, 18 AD3d 322 (1st Dept 2005). Since the main action is still pending, Elide cannot claim damages, and thus, its assertion of legal malpractice in the third-party complaint cannot stand. See Kahn Jewelry Corp v. Rosenfeld, 295 AD2d 261 (1st Dept 2002) (in view of the circumstances that the underlying action was still pending at the time of defendant’s motion, plaintiffs have not yet sustained any actual damages attributable to the alleged malpractice). Mere speculation of loss resulting from alleged attorney negligence is insufficient to sustain a prima facie case of legal malpractice. See Luniewski v. Zeitlin, 188 AD2d 642 (2nd Dept 1992).

Moreover, Elide could not have stopped the eviction even if Salerno had advised it that same was improper, because Elide had no authority over defendant constable Kenneth R. Herbert in light of the lawfully issued warrant. Moreover, Elide’s representative at the eviction, defendant Michael M. Seminara, a constable himself, knew same was premature, but did nothing. "