Here is a report of a Texas case which raises a novel argument:  In a bench trial is it necessary to present expert evidence of legal malpractice?  The argument is that evidence of a deviation from good and accepted practice must be shown to a jury, whose knoweldge generaly is insufficient for them to decide without expert testimony.  A judge who is finding the facts is in  a different situation, and it is often said that expert testmony on legal issues may not be presented to a judge. 

As an example, in a legal malpractice case arising from a non-filed appeal, it is the court’s decision, not a jury’s whether there would have been a different outcome.  Expert testimony on that aspect of the case is not permitted.

Is this the same argument?  In Texas, the answer was no.  "In Abdelhak v. Farney, plaintiff brought claims of legal malpractice and violations of the Texas Deceptive Trade Practices Act against his former trial attorney. No. 04-07-00121-CV, 2007 WL 4180133, at *1 (Tex. App.—San Antonio Nov. 28, 2007, no pet. h.) (mem. op.). Plaintiff alleged the defendant lawyer committed malpractice by failing to call certain witnesses, elicit certain testimony, and thoroughly conduct a cross-examination, but plaintiff failed to designate an expert witness prior to the designation deadline. Plaintiff sought leave to make a late designation and argued that his claims did not require expert testimony, but the trial court granted summary judgment. The San Antonio court affirmed. Id. at *4-5.

It is well-established that expert testimony is required to prove causation in legal malpractice cases arising from alleged trial errors because "the wisdom and consequences of these kinds of tactical choices" are beyond the knowledge of most jurors. Id. at *4 (quoting Alexander v. Turtur & Assocs., 146 S.W.3d 113, 119-20 (Tex 2004)). But this case had been set for a bench trial. The plaintiff argued that expert testimony should not be required in bench trials, because the lawyer’s negligence and the result of that negligence should be more obvious to a judge with legal training and experience. Noting that plaintiff had not provided any authority to support this argument, and observing that such a distinction would require a subjective determination of the particular trier of fact’s knowledge, the San Antonio court declined to modify the expert testimony requirement in the case of bench trials. "

It’s not possible to predict how an appellate court will decide summary judgment motions.  All know the standard.  Interpretation of the arguments varies from panel to panel.

Here is a recently decided legal malpractice summary judgment and appeal . Hamilton Duffy-Duncan, Plaintiff-Respondent, v Berns & Castro, et al., Defendants-Appellants.

2235, 27619/03 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2007 NY Slip Op 9493; 

The salient facts are a slip and fall on a patch of ice on an elevated outdoor subway platform.  The attorney failed to serve a timely notice of claim.  Here, the AD determined that defendants had not demonstrated that a storm condition would have provided a defense, or that  the TA might have defended on the issue of notice.  "The lack of discovery" here was held against the attorneys, not the plaintiff.  This is not always the case.

Reed Smith had a nice relationship with the Bair Foundation, a smaller religeous entity.  They represented the foundation for a while, and did so amicably.  However, when the foundation became a defendant in a discrimination law suit, and Reed Smith defended, the bill for legal services rose from an estimated $ 50,000 to $ 1 Million.  Now the foundation sues and says that  Biglaw is not for smaller companies or entities.

"The high demands on partners in global law firms to increase profits, the client said, ultimately led to its claims of professional negligence against Reed Smith. The religious nonprofit alleged it was excessively charged for its legal representation in a routine employment discrimination case, according to the complaint in The Bair Foundation v. Reed Smith.

And the nonprofit’s attorney said he thinks these large firms shouldn’t represent the smaller organizations.

The Bair Foundation, described in the complaint as a Christian charitable foundation devoted to foster care for children, sued Reed Smith in Lawrence County Common Pleas Court in Pennsylvania after it was allegedly charged nearly $1 million in legal fees and costs in defense of the suit.

This story is becoming news.  In a legal malpractice litigation,  involving the Town of Manalapan, NJ suing over a land deal by a former public official, a blogger is now being pursued for information coming onto the blog site.  Like the Flea case [read Eric Turkowitz’s series of articles in   this new case has far greater considerations.

"The Electronic Frontier Foundation (EFF) asked a Superior Court judge in New Jersey today to preserve the free speech rights of an anonymous blogger facing legal threats from local government officials.

The blogger, writing as "daTruthSquad" on a site hosted on Google’s Blogspot service, has criticized a controversial lawsuit filed by the township of Manalapan, as well as the officials who decided to pursue the case. The township subpoenaed Google for "daTruthSquad’s" identity — as well as for any emails, blog drafts, and other information Google has about the blogger — claiming that the defendant in the case is actually writing the posts. The defendant, however, has already sworn under penalty of perjury that he is not "daTruthSquad."

"Bloggers, as well as everyone else, have a First Amendment right to speak anonymously," said EFF Staff Attorney Matt Zimmerman. "Litigants don’t get a blank check to pry into the private lives of critics when they say things the litigants don’t like. The fact that it is the government trying to abuse the discovery process makes this attempted invasion of privacy all the more repugnant."

In a motion to quash the subpoena filed today, EFF asked the court to block the township’s attempt to uncover the identity of "daTruthSquad" and allow the blogger to continue to write about this or any other issue without being forced to identity him or herself. "

We’re republishing a blog blurb that unfortunately did not have a link to the original case.  From what we can piece together, here is what happened.  Plaintiff undergoes back surgery and emerges blind in one eye and damaged in the other.  Plaintiff hires med mal attorney who sues on the theory of drug incompatibility.  Attorney loses case for lack of expert.

Plaintiff then sues attorney, arguing that this was a positioning case, and as he was lying on his stomach for hours, his eyes were physically not drug damaged,  Plaintiff wins $ 750,000 verdict.  Interestingly, the doctor gets in the act and sues attorney too.  He succeeds with an $ 80,000 settlement.  Question: how does the doctor successfully sue the attorney?

In NY a convicted criminal defendant may not successfully sue his criminal defense attorney…unless he is exonerated.  That, or a reversal of the conviction [the ability to demonstrate "innocence"] is necessary.  In Wisconsin, the rule is in flux.  Here is a case which discusses, without deciding, when the statute starts to run: on the date of the mistake or on the date of the exoneration.  Instead, Wisconsin borrows the Pennsylvania statute of limiations, and dismisses the case.

STATE OF WISCONSIN
IN COURT OF APPEALS
DISTRICT II
Thomas P. Jasin,  v. Michael Best & Friedrich LLP,

"PER CURIAM. Thomas P. Jasin appeals from an order dismissing his legal malpractice action against Michael Best & Friedrich (MBF). The issue is whether the cause of action is time barred under the applicable statutes of limitation. Without addressing whether Wisconsin would adopt an exoneration or two-track rule in determining when a criminal malpractice action accrues, we affirm the order of the circuit court based on the application of Pennsylvania law. " "In Pennsylvania, periods of limitation in a criminal malpractice action begin to run at the time the attorney-client relationship is terminated. Bailey v. Tucker, 621 A.2d 108, 116 (1993). Although Pennsylvania makes actual innocence an element of proof for recovery, it does not make exoneration a prerequisite to the accrual of the malpractice action and the limitation period may expire before the defendant has obtained postconviction relief. Id. at 115 n.12, 13. Jasin’s claims are time-barred under Pennsylvania law. Because we borrow Pennsylvania law regarding limitations, we need not address whether Wisconsin would adopt the exoneration or two-track rule of accrual"

When you start out reading this story, it cleaves to the age old complaint:  Lawyers are less polite, and more business oriented than in the past.  It’s no longer a profession, its a business.  The shocker comes at the end of this particular story:  biglaw litigating lawyer calls Federal Judge anti-catholic !

"Manhattan federal judge has delivered a lengthy manifesto against declining civility in the legal profession in the course of sanctioning law firm Dorsey & Whitney and two of its partners.

Southern District Judge Harold Baer opened his 129-page decision with a discussion of how "naked competition and singular economic focus of the marketplace have begun to infiltrate the practice of law, subordinating the high standards of service, collegiality and professionalism as a result."
"But the lawyer targeted by the judge struck back hard.

"It is hard to take seriously Judge Baer’s alleged concern for professional courtesy when he continues to treat women litigators like second class citizens in his court room, requires attorneys to physically oversee the return of documents in another country within a matter of hours when they are overseas on their anniversary, and sets depositions on Sunday mornings," said Ms. Peters in an e-mail.

"Indeed, when a Catholic lawyer asks for the opportunity to attend church before the Sunday deposition, he mocked the attorney for Catholic observance," she said. "

In New York there is no recognizable discovery rule for the statute of limitations.  For the most part, the statute starts to run on the day of the mistake, although it may be tolled for continuous representation, or fraud [which does not consist of merely hiding the malpractice], but in Delaware there is a specific rule.

Here is a case which discusses the rule and its application. Boerger v. Heiman, Superior Court of the State of Delaware.