William Gwire, a San Francisco Attorney writes in Law.Com about some of his legal malpractice cases in this article.

"The landscape for litigating attorneys has changed dramatically over the 33 years that I’ve been in practice. Cases are more complex, stakes are higher, and competition is more intense. Judges and opposing counsel are less accommodating and the rules and procedures that line the litigation process like a gauntlet are more complicated than ever. Clients, big and small, are also more demanding and more willing to seek redress for mistakes they perceive their attorneys have made.

But the nature of malpractice claims has also changed, with differences that often depend on the size of the firm. Interestingly, big firms and small firms, including solo practitioners, make different kinds of mistakes. While there are many types of errors that can lead to malpractice claims, this article focuses on just a few that I’ve seen emerging.

LARGE-FIRM MISTAKES

Complex and high-stakes litigation has placed a premium on experienced litigators, resulting in increased demand for large-firm partners with marquee names. Nothing draws in business and clients with litigation matters like a reputation for success in the courtroom. But because partners with star-power litigation credentials are in such demand, they run the risk of taking on too much work and stretching themselves too thin when it comes to handling their caseloads.

SMALL-FIRM MISTAKES

While small law firms make mistakes that usually don’t add up to dollar damages as big as the ones made by larger firms, the resulting damage to both the client and the small firm or solo practitioner can be much more devastating. That is because the firm’s client — whether an individual or a small business — may be financially unable to withstand a bad result, and the damages arising out of the malpractice may exceed the firm’s insurance coverage (assuming there is any), exposing the individual partner or partners to personal liability.

While mistakes in small firms can occur in a lot of ways, there is one in particular that appears to be more prevalent today. Surprisingly, it is not the classic missed-statute type of malpractice, although that certainly still happens. The advent of sophisticated and inexpensive computerized calendaring programs seems to have eliminated many of those types of errors.

Rather, I’ve noticed that small firms and solo practitioners are often taking on work that they don’t know how to handle. Unlike the situation at large firms, where experienced lawyers run the risk of stretching themselves too thin, the problem with small offices is lack of experience in a particular field. The law has become so complex and fields of practice so specialized that a solo practitioner or small firm simply can’t do it all or even some of it. I am both amused and shocked when I see Web sites by solo practitioners or small firms that announce their specialties in family law, personal injury, probate, criminal law, intellectual property, real estate, construction litigation, securities, immigration and medical malpractice. You think I’m kidding? Spend an hour surfing the Internet for lawyers and you’ll understand what I’m talking about. "

Here is a case from the Madison St.Claire Record, detailing a legal malpractice case arising from claims in a Worker’s Compensation matter. "Frank Krausz filed a legal malpractice suit against Ann Dalton and Hammond, Shinners, Turcotte, Larrew & Young in Madison County Circuit Court Nov. 27, alleging they botched his workers’ compensation claim.

According to Krausz, he was employed by Lanter Company and was injured at work on Aug. 21, 2001. He sustained injuries to his neck and shoulder while trying to close a jammed trailer door.

He claims that on Nov. 30, 2001, he retained the defendants by a written contract to represent his claim against Lanter.

Krausz claims the defendants filed an application for benefits with the Illinois Industrial Commission on March 12, 2002, and because of their actions his claim was denied.

Krausz claims the defendants negligently allowed his claim to get above the "red line" and be dismissed for want of prosecution, failed to make a timely application to reinstate the case after learning of the dismissal and failed to notify him of their actions until a year went by and his case was permanently barred. "

DLA Piper is Biglaw to the N th degree.  Here is a story about this international law firm’s international legal malpractice case.  "DLA Piper is facing a negligence claim from a property consultancy company relating to advice it gave to Northern Rock on fraudulent property transactions.

The claim, brought by property company Gerald Eve last month (25 October), seeks a contribution to the £1.6m settlement the company paid to Northern Rock over alleged negligence by both DLA Piper and Gerald Eve on three property transactions.

The original claim pursued by Northern Rock against the company and firm was for negligent advice which failed to prevent an alleged fraud by a third party in property deals where the bank advanced a total of £6.75m for 15 flats in Paddington.

As a result of the alleged negligence, Northern Rock claimed it suffered a loss of £2.1m.

Gerald Eve settled Northern Rock’s claim against it in September for £1.6m. However, DLA Piper failed to put forward anything towards it, causing the property surveyors to lodge a claim against the firm for a contribution towards the settlement fee.

Mayer Brown professional indemnity partner Jim Oulton is advising Gerald Eve, while Barlow Lyde & Gilbert has been instructed to represent DLA Piper "

This law firm is the subject of a billboard advertising campaign. 

"A former client of Damon & Morey LLP is publicly airing complaints about the law firm.

The charges can be found on a Web site, in e-mails, on a since-removed Niagara Falls Boulevard billboard and in flyers being passed out around town.

Daniel Elia alleges that the Buffalo-based law firm is guilty of legal malpractice because it did not disclose a conflict of interest when Damon & Morey represented both him, as a debtor, and one of his creditors in a Chapter 11 bankruptcy case. The former owner of the now-defunct D.A. Elia Construction Corp. in Niagara Falls also claims that the firm charged him "unreasonable" legal fees.

"We think this type of conduct is not good for our community and not good for the integrity of the legal system," said Elia, who has outlined his grievances on the Web site www.damon-moreymisconduct.com.

Damon & Morey’s managing partner, Peter Marlette, said the courts found the conflicts of interest to be "insignificant." "

In this California Case, the court discusses the minimum showing of economic loss necessary. "A dentist being sued for dental malpractice has alleged none of the economic losses usually associated with claims for the breach of an insurance contract, bad faith or legal malpractice, a California appeals panel held Nov. 19, finding that a trial court properly sustained an insurer’s demurrers without leave to amend "

On a totally different issue, this case makes facinating reading.  Plaintiff, a dentist is sued for dental malpractice.  His insurer hires attorney firm 1 to whom he objects.  One of the bases is that their expert worked for the patient-plaintiff’s attorneys previously.  He complains to the carrier and they replace the attorneys with firm 2.  Firm 2 previously defended firm 1 in legal malpractice and the dentist complains… and on it goes.  The dentist eventually wins the dental malpractice case.  Read the decision.

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?