The Magna v. Coburn case in which the bank is suing attorney Coburn over "steering" to a settlement structuring company which eventually swindled clients, took an unusual turn.  Lead attorney Rex Carr was called away from counsel table to the witness stand.

"In an odd twist Magna’s lead lawyer, Rex Carr, was called to testify as a witness for the defense.

Representing Thompson Coburn, Carrie Hogan of Jones Day in Chicago asked Carr a series of questions about his role in steering clients to James Gibson — the notorious businessman who ended up swindling structured settlements from children and widows.

According to Carr, it all started in 1985 when Gibson took up the business of structuring settlements under an agreement with a bank that Magna later acquired. "

Familiar with SLAPP suits?  Unfair Competition Law?  Probably not, unless you are in California.  Here is a blog entry from Kimberly Kralowec on a legal malpracice case in California which illustrates a California litigation tactic.  There, the Upper Deck co. v. Orick Herrington case tells us how the SLAPP law works.

"A recent unpublished opinion, The Upper Deck Co. v. Orrick, Herrington & Sutcliffe, no. D050373 (Feb. 26, 2008), illustrates a creative use of the UCL. The Upper Deck Co. sued Orrick, Herrington & Sutcliffe for legal malpractice. Orrick cross-complained under the UCL, arguing that Upper Deck "had a pattern and practice of hiring law firms without the intent to pay the fees and, after incurring significant fees, claiming malpractice as a pretext to avoid paying the fees." Slip op. at 1-2. Orrick sought "equitable relief as well as restitution for the value of the services it provided to Upper Deck." Id. at 3. Upper Deck moved to strike the UCL claim under the anti-SLAPP law (Code of Civil Procedure section 425.16), arguing that it was a strategic lawsuit against public participation in the petitioning process and the right to use the courts for that purpose. The trial court denied the motion, and the Court of Appeal affirmed.

In New Yortk CPLR 3211(g) covers the same territory.

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 ."