A commonly quoted statistic is that 95% of all cases are resolved prior to trial;  they are resolved through motions to dismiss, motions for summary judgment and settlements.  The few cases that go on to trial generally, they calculate, go 50/50.  Here is a highly reported, big $ legal malpractice case which went to trial, and ended in a verdict for defendant.  Law.Com reports:

"A Philadelphia jury Wednesday cleared Duane Morris of a claim of legal malpractice for its representation of a former client in settlement negotiations, according to attorneys in the case.

The eight-member jury found the firm did not breach the standard of care or breach any fiduciary duty when its client signed a settlement agreement that provided no security, the attorneys said.

The case was held before Philadelphia Common Pleas Judge Howland W. Abramson in the Commerce Court Program.

The eight-member jury began deliberating at about 3 p.m. on Tuesday for 3 1/2 hours and came back to deliberate at 1 p.m. Wednesday, handing down a verdict at 3 p.m. The jury was selected on Feb. 4, and closing arguments were held on Tuesday. "

Legal malpractice is a wholly state cause of action, and might be brought in Federal District Court only if there is a basis for jurisdiction.  Diversity jurisdiction is the one most quickly thought of, but in certain circumstances federal question jurisdiction may also apply.  Questions of legal malpractice in a patent representation is one such example.  Here, the case of  Immunocept v. Fulbright & Jaworsky provides a discussion of why it may [and on removal, must] be brought in Federal District Court.  There they say:

"Because the claim scope determination involved in the malpractice claim presents a substantial question of patent law, we conclude that jurisdiction is proper under section 1338."

In Scher v. Mishkit  [NYLJ exerpt], Supreme Court, Suffolk County refused to allow this attorney to wifhdraw pursuant to CPLR 321.  This situation is more common than one might guess, especially in medical malpractice cases.  The case is brought, and prosecuted, with depositions, and medical record exchanges, and then placed on the calendar, without an expert in place. 

Not unexpectedly, time goes by, and the case starts to be near the top of the list for jury selection, and defendants have not offered to settle.  Plaintiff’s attorney still has no expert, and it starts to look like they may simply have worked this case up on the assumption [hope] that defendants would settle…and now they have a problem.

That’s what this case seems to be about. "PLAINTIFF’S lawyer moved to withdraw as the attorney of record asserting that the attorney-client relationship was at an "impasse." Counsel argued it was unable to find an expert willing to testify for plaintiff at trial in this medical malpractice action. Plaintiff opposed the motion, alleging she cooperated with counsel and through all the years of representation received "constant assurance that this was a valid case."

Result?  Attorney must stay in case.

It is an ethical  violation of 22 NYCRR 603.4[e][1][iv]  willfully to fail to satisfy a judgment arising out of one’s professional activities.  For the most part, these judgments arise from legal malpractice. Here  an attorney is suspended because of an unsatisfied judgment:

"Respondent’s failure to cooperate with the Committee’s investigation (22 NYCRR 603.4[e][1][i]) and her willful failure to pay money owed to a former client, which debt is demonstrated by a judgment (22 NYCRR 603.4[e][1][iv]), warrant her immediate suspension (see In re Zimmerman, 45 AD3d 212 [2007]; Matter of McClain-Sewer, 39 AD3d 35 [2007]; In re Singer, 301 AD2d 336 [2002]; In re Adelman, 263 AD2d 160 [1999]). Accordingly, the Committee’s motion should be granted and respondent suspended from the practice of law, effective immediately, until the proceedings pending before the Committee are concluded and until further order of this Court. "

So far the central question in this legal malpractice case is whether it is taking place in a judicial hellhole, and incidently, who gets to make that decision.

This is a legal malpractice case taking place in Madison County, Illinois.  Here is the story from the Madison St. Claire Record:

"Relics of Madison County’s past are scheduled to reappear for a legal malpractice trial that will open old, painful wounds and be as dramatic as anything ever seen in an Edwardsville courtroom.

The heart of the matter is about the area’s most notorious swindler James Gibson who stole millions from children and widows by making off with their structured settlement funds.

But legendary plaintiff’s attorney Rex Carr — who plans to call former Madison County judges Gordon Maag and Randall Bono and prolific personal injury attorney Thomas Q. Keefe as witnesses — is trying to convince the jury to take pity on another victim in the "debacle," his client, Magna Bank (now Regions Bank).

Indiana Legal Blog reports on the Transcontinental legal malpractice case.  We reported on it earlier, but there seems to be a new twist:

"On appeal, the Indiana Court of Appeals did not accept the excess insurer’s argument that they should be allowed to bring a legal malpractice claim against the client’s attorneys under the doctrine of equitable subrogation. The Indiana Court of Appeals found no material issue of fact in finding that limited correspondence between the excess insurer and the client’s attorneys fell significantly short of constituting an attorney/client relationship. Id. at 724. Furthermore, the Indiana Court of Appeals held that allowing the legal malpractice suit under the doctrine of equitable subrogation would essentially be the same as allowing an assignment of the cause of action from one party to another, which it will not do. Id. at 723. In support of the holding, the Indiana Court of Appeals explained it will not allow legal malpractice actions in these situations for the reason that allowing them would divide the loyalty of the attorneys. If allowed, attorneys will be tempted in not vigorously representing their clients in order to protect themselves against third parties such as the excess insurer in this case. Id.

The Indiana Supreme Court granted a petition to transfer and the Indiana Court of Appeals opinion has been vacated. "

Here is a commentary from Larry Upshaw  on the pro/con arguments for a law firm putting an arbitration clause in the retainer agreement.  From plaintiff’s prospective, it can be a costly problem.  Take a commercial legal malpractice in which there are potential $ 1 million damages.

A trial can be had for the cost of an index number.  The arbitrator’s fees can be as high as $ 50,000.

From the blog: "It’s curious that many lawyers routinely put arbitration clauses in their engagement letters with clients. Here you have quite literally the foot soldiers in the third branch of government, charged by our professional oath to be officers of the court. And yet, in contracts with clients, these attorneys opt out of the court system by obligating clients to take any dispute to arbitration.

The subtext of that conduct seems clear: these lawyers don’t trust the court system to treat them fairly and prefer the private dispute resolution process of arbitration to court. Call me crazy, but that certainly sounds out of whack. It’s kind of like a doctor saying, “If I get sick, whatever you do, do not take me to a hospital.”

While it may seem ironic that lawyers are running for protection to arbitration clauses, there is an even bigger ironic surprise waiting for these lawyers who opt out of the court system. Keep in mind that the arbitration clause in your engagement letter obligates your client to pursue his or her malpractice claim against you in arbitration instead of in court. And it therefore obligates your insurance carrier to have its liability for your malpractice determined in arbitration instead of in court. It turns out that insurance companies actually like jury trials and are not always all that fond of arbitration. Lawyers who force their clients into arbitration and then get an arbitration case for malpractice are now routinely receiving a “Reservation of Rights” letter from their insurance carrier, threatening to deny insurance coverage because the lawyer deprived the insurance company of its right to a jury trial.

Next time you are tempted to show your distrust for the court system by including an arbitration clause in your fee contracts, keep in mind that you may have just cancelled your malpractice insurance policy. "

Here is a case from Richmond County with an interesting twist.  Facts:  Mother gets into money trouble and faces foreclosure.  Daughter helps out and negotiates a mortgage to pay off the earlier debts and prevent foreclosure.  An attorney is "assigned" by the mortage company for the mother.  Later Mom comes to believe that the terms and fees of the mortgage have been misrepresented.  She stops paying and this action endues.

After being sued, she third-parties the attorney.  Now he, as a third-party defendant moves to dismiss.

"In support of his motion to dismiss the third-party complaint pursuant to CPLR 3211(a)(1), attorney Bellini maintains that the factual allegations in the third-party complaint preclude the maintenance of a cause of action against him for breach of fiduciary duty. In this regard, Bellini purports to rely upon the allegations that: (1) it was the daughter, Elizabeth Giammarino, who was acting as the third-party plaintiff’s attorney-in-fact; (2) the third-party plaintiff did not attend the closing; and (3) attorney Bellini never spoke to the third-party plaintiff prior thereto. On the basis of this "documentary evidence," Bellini contends that any cause of action against him for breach of fiduciary duty could only run in favor of Mrs. Giammarino’s daughter, Elizabeth.

CPLR 3211(a)(1) provides that a party may move for the dismissal of one or more causes of action asserted against it on the ground of a defense founded upon documentary evidence. To succeed on such a motion, however, the documentary evidence that forms the basis of the defense must be such that it resolves all of the factual issues as a matter of law, and conclusively disposes of plaintiff’s claim (see, Scadura v. Robillard, 256 AD2d 567 [2nd Dept. 1998]). Thus, a motion to dismiss the complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, thereby conclusively establishing a defense to the action as a matter of law (see, Ruby Falls, Inc. v. Ruby Falls Partners, LLC., 39 AD3d 619 [2nd Dept. 2007]). Here, the third-party defendant has not met this burden.

The allegation that the daughter was acting under a power of attorney as her mother’s attorney-in-fact does not conclusively establish the absence of a fiduciary duty between the third-party plaintiff and counselor Bellini. Accordingly, this fact, standing alone, will not support dismissal. "