Sidewalk trip and fall cases have special problems associated with them.  As municipalities grew tired of being sued, they enacted strict notice rules, which, along with the General Municipal Law filing procedures, made for a maze.

Here is an example [from Newsbriefs of the NYLJ] of a case in which the town required plaintffs to file their notice in a special place, and then attempted to defend saying that the plaintiff followed the towns rule!

"In a case of first impression, a Brooklyn appeals panel has ruled that a municipality is estopped from claiming a lack-of-notice defense in sidewalk trip-and-fall cases if its employee instructs a member of the public to provide notice of a condition to the wrong department but the notice is nonetheless received by the department responsible for the record-keeping, inspection and repair of sidewalks. In a case involving a plaintiff who fell when her shoe allegedly was caught on an "uneven slab of sidewalk," the Town of Huntington denied receipt of prior written notice of the defect. Supreme Court Justice Gary J. Weber of Suffolk County (See Profile) denied the town’s cross motion for summary judgment. Last week, in a 13-page opinion by Justice Mark C. Dillon (See Profile), the Appellate Division, Second Department, affirmed. "The Town, having instructed [a complainant] to send his written notice . . . to the director of the [Department of Engineering Services], cannot now be permitted to use that instruction as a shield against liability," Justice Dillon wrote. "To do so would result in an injustice to any claimant where there has been compliance with a clear directive, from a Town agent employed by the municipal department that maintains sidewalk complaint records, to file written notice of a dangerous sidewalk condition with someone other than the statutory designee." Gorman v. Town of Huntington, 06-05584, will be published Thursday

When a person who has a personal injury case files bankruptcy, they, in essence, give up that asset to the Trustee in Bankruptcy.  If the recovery is greater than the creditor’s claims, then the plaintiff may get some money.  If not, then the entire proceeds go to the creditors.

Going along with this, the trustee in bankruptcy becomes the plaintiff.  Personal injury attorneys must play by bankruptcy rules, and, for example, must be permitted to represent the trustee by court order, any settlements are subject to court order, as are all fees, regardless of the retainer agreement.

Here is a case in which the personal injury attorney was ousted for simply not following the rules. "In April 2004, Ms. Smith filed for bankruptcy. She had debts of $14,000 and a single potential asset: a personal injury claim based on a sledding accident in which she was blinded in one eye. According to the circuit, "all parties agree that if the personal injury claim is successfully prosecuted, recovery would likely far exceed creditors’ claims against Smith."

Ms. Smith retained Mr. Schwartz for the personal injury case with the initial approval of bankruptcy trustee Robert Geltzer. But the trustee later slammed Mr. Schwartz for naming Ms. Smith, and not Mr. Geltzer, as plaintiff in the action and then stalling for more than nine months to change the caption in the case while he brought in another lawyer without court approval.

The filing of the personal injury action under Ms. Smith’s name, the circuit said in Schwartz v. Geltzer, 06-4450-bk and 06-5323-bk, "was the first in a litany of errors that, when viewed together, reflect at best a lack of understanding of the bankruptcy process and at worst an effort to circumvent its requirements."

Here is a story from Texas about a legal malpractice [or is it?] case in which the insurer asks the court to determine that it owes no defense.  The reason is not the usual "no notice’ or "fraud in the application."  In this particular instance, the insurance company believes that the behavior complained of is not legal malpractice, but some other variant of uncovered wrong.

"A Kansas-based insurance company wants a declaration that it does not owe a defense to Fort Worth firm Cotten Schmidt in a separate suit filed against the firm. In Westport Insurance Corp. v. Cotten Schmidt LLP, et al., filed on Nov. 2 in U.S. District Court for the Northern District of Texas, Westport Insurance Corp. alleges that a legal malpractice policy that it issued to Cotten Schmidt does not cover a suit brought by Empire Equipment International Inc. and Robert Russell on Sept. 4, 2007, in Tarrant County district court against Cotton Schmidt alleging wrongful levy, execution and sale, and conversion. Cotten Schmidt and two of the firm’s partners, Westport’s suit alleges, "are not alleged to have committed those wrongful acts in the rendition of legal services. . . . "

Arising in the nature of inadvertant attorney client privilege, the question of meta data was recently discussed by Hinshaw:

"The D.C. Bar Association Legal Ethics Committee concluded that when a lawyer has actual knowledge that an adversary has inadvertently provided metadata in an electronic document, the lawyer should not review the metadata without contacting the sending lawyer and abiding by the sender’s instruction. This gives the sender the opportunity to determine if the metadata includes work product or confidential information of the sender’s client. In all other circumstances, however, the receiving lawyer is free to review the metadata contained in electronic files provided by an adversary"

Here is an interesting tidbit on fake lawyers, and the problems created by them. 

"The Problem of Barring Phony Lawyers from Practice

With so many bona fide lawyers struggling to obtain a job or attract clients, it’s hard to believe that some people not only manage to impersonate real lawyers, but find real business and jobs as well. As this article from the Stamford Advocate (11/2/07) describes, phony lawyers are a growing problem in Connecticut, with the bar handling fifty fake cases per year. In Connecticut, most of the fake lawyer cases involve "notarios" who purport to offer legal assistance in immigration cases. But there are other cases, such as that of Brian Valery, a paralegal who duped his employer Anderson, Kill & Olick into believing that he’d gone to law school and passed the bar while working at the firm.

Most incredible, there’s also the case of Howard Seidler, who has posed as a lawyer in courts around the country by using the name of a real lawyer, Howard Webber. Seidler sought admission by motion to the Connecticut bar, using another fake attorney by the name of Jermaine Johnson to sponsor him. The application contained several red flags; Seidler did not file an affidavit under oath and he and Johnson submitted the same bar number. But even though Seidler’s application slipped through, his performance gave him away. During voir dire for a DUI case, Seidler asked potential jurors questions such as whether they liked animals, whether they could "envision the coffee table in front of them" or describe a house that they might see if, hypothetically, they were in a forest and came to a clearing. Finding this line of questioning a little odd, the prosecutor checked Seidler’s background (who was using the name Webber) after the trial (the client was convicted after eight minutes) and discovered the fraud.

Seidler’s case is now in the hands of the criminal justice system and not the bar — he’s being prosecuted for fraud. As for Seidler’s client, he’ll get a new trial, and investigators will try to recoup the $18,000 that the client spent for Seidler’s service. In the meantime, Connecticut lawmakers are proposing legislation that would make unauthorized practice of law a felony punishable by at least a year in jail. Currently, the charge is a misdemeanor and according to bar officials, no one in Connecticut has ever been jailed for phony lawyering.

So the next time you’re up against an incompetent lawyer, don’t just laugh it off. Why not check the bar records — most are readily available on line — and make sure that your opponent is licensed to practice law?

Posted by Carolyn Elefant

They lost the huge legal malpractice case, he may be horse of the year.  It’s astudy in contrasts.  Plaintiffs may be tne new owners of the Preakness and the Breeders Cup Stakes Winner .

"A state judge has given the plaintiffs, in a lawsuit against three lawyers, the right to claim part ownership of the 3-year-old colt who has earned more than $5.1 million on the track.

Judge William Wehr said the plaintiffs can make the claim through Midnight Cry Stables, the company used by attorneys Shirley Cunningham Jr. and William Gallion to buy the horse for $57,000.

Cunningham and Gallion own a 20 percent stake in Preakness Stakes winner Curlin, who won the Classic on Saturday under Midnight Cry Stables’ blue and black colors. Curlin was third in the Kentucky Derby and second in the Belmont Stakes. and is likely to voted Horse of the Year.

The attorney for the 400-plus plaintiffs said the horse is now for sale, which prompted the move to claim Cunningham and Gallion’s assets. Angela Ford, the lawyer who represents the plaintiffs, said there have been discussions about both a private sale and a public auction of Curlin, but no decisions had been made as of Friday morning.

"I wouldn’t want to speculate on what he’s worth," Ford said.

Wehr’s order, issued late Thursday, comes in a case against Cunningham, Gallion and Lexington lawyer Melbourne Mills Jr. over the handling of a $200 million settlement in litigation over the diet drug fen-phen. Mills is not involved in the ownership of Curlin.

Wehr previously ruled that the attorneys bilked their clients of funds from the settlement and owe at least $42 million. Cunningham, Gallion and Mills are currently jailed in northern Kentucky awaiting a federal trial on charges of wire fraud stemming from the fen-phen settlement. They have pleaded not guilty."

This is really a horrible story.  Solo Attorney has a longtime office manager/secretary who uses the position to steal a lot of money from a client estate.  Secretary pleads guilty to crime.  Attorney left holding the bag.  Insurance company says it has no coverage for conversion. 

Q:  was it legal malpractice to allow the secretary such access/no oversight?

An often asked question in legal malpractice is: "what was the standard of good representation?  The following question is whether the attorney met that standard.  In trolling through the literature on this and other questions we ran across this interesting tidbit:  In West Virginia courts permit payment to jury researchers for indigent clients.  We have not heard of this before.

If this is the standard for criminal representation, is anything less for other defendants, criminal and civil, a deviation?

"Due diligence. Preparation. Undoubtedly, this is the most important responsibility that counsel owes to his or her client.

Inadequate representation due to poor preparation nearly always results in a negative outcome. Worst case scenario is the conviction of a criminal client who is innocent. But consider that the State of West Virginia provides public monies for trial research for indigent clients who are being represented by the Public Defender’s Office. Our firm has conducted multiple change of venue surveys for clients of the Public Defender’s office that were funded by taxpayer dollars. In each case, the judge approved the expenditure because the indigent client is entitled-the same as everyone else-to adequate representation. And trial research, like a court-appointed attorney, is considered essential to providing this adequate representation. "