As any first year law student can tell you, pleadings are required simply to put the other side on notice of the general proposal of the complaint:  You injured me in tort, by doing "x".  One simply puts the other side on notice, and if they are interested [as they always are], then they ask for discover.

This blog blurb from the Scottsdale blog tells us the current story in Arizona.  His warning?  Use facts, and lots of them.

"There’s a new case out this week from Division Two, Cullen v. Koty-Leavitt Insurance, which deals with the reasonable expectations doctrine in the UIM setting. The case is not particularly fascinating from a substantive perspective, but it raises questions about potential legal malpractice exposure.

In sum, Cullen filed a UIM claim based upon the fact that his family was given the right to privately use a business vehicle. The vehicle was owned by the business, Sierrita Mining and Ranch Company, and had UIM coverage with Auto Owners. The named insured was the business, and there were no additional insureds.

Cullen was injured while riding in another vehicle and filed a UIM claim with Auto Owners. The insurer denied his UIM claim, he then filed suit and the trial court dismissed the action.

First, the Court of Appeals expressly adopted the Supreme Court’s holding in Bell Atlantic Corp. v. Twombly, the case that overruled the familiar Conley v. Gibson standard for dismissal.

This is a significant move and one wonders how the Arizona Court of Appeals, which is bound to follow the Arizona Supreme Court on such matters, saw fit to disregard the Arizona Supreme Court and unilaterally adopt the United States Supreme Court’s Twombly holding. In any event, doubt no further, the "notice pleading" landscape has changed in Arizona as follows:

"While a complaint attacked by a Rule 12(b)(6) . . . motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Instead, the complaint’s "[f]actual allegations must be enough to raise a right to relief above the speculative level."
The Court stated "when a complaint fails to recite at least the basic facts supporting a claim for relief, we cannot see how a defendant would have fair notice of the nature and basis of the claim." "

 

From NY Lawyer we get this report:

"Pillsbury Winthrop Shaw Pittman partners Paul Tummonds Jr. and Patrick Potter are the targets of a $50 million malpractice complaint filed by former client Capitol Hill Group.

According to the complaint filed on September 7 in D.C. Superior Court, the plaintiff owned property at 700 Constitution Ave. N.E., leased to a nursing home and a hospital. At issue was the number of parking spaces needed.

Initially, the city said 85. When a neighborhood group appealed, Capitol Hill Group tapped Tummonds and Potter for help. According to the complaint, the D.C. Board of Zoning Adjustment first rejected the appeal. The board reconsidered a portion of its denial, however, and eventually issued a final order requiring 177 parking spots. That was in September 2004.

And now for the rub — Capitol Hill Group claims that its counsel did not inform it of the final order until the spring of 2005. At that point, the property had too few spaces, and the group could no longer appeal. The result, according to the complaint: upwards of $50 million in losses. "

Blogs and trials have been a recent confluence.  Dr. Flee, who blogged his own trial was one [well reported by the New York Personal Injury blog of Eric Turkowitz.

Now, jurors are coming into the mix.  Law.com editor and blogger Robert J. Ambrogi suggests that the failure to root out and research these bloggers could be legal malpractice.

"As blogger Matthew Wheeler sat in a Milwaukee courthouse this week for jury duty, he amused himself with Twitter postings such as "Still sitting for jury duty crap. Hating it immensely. Plz don’t pick me, plz don’t pick me," and "More like Jury DEpreciation Month! So this is Purgatory, eh." Unfortunately for Wheeler, he did get picked for what the <i>Milwaukee Journal Sentinel</i>’s Proof and Hearsay blog describes as "the mother of all trials" — a six-week lead-paint injury case. But at least the lawyers in the courtroom knew of Wheeler’s blog and Twitter postings before he was selected. Circuit Court Judge Richard Sankovitz had decided at the outset to ask all potential jurors, "Do you blog?"

Then there is the Chicagoland blogger known only as Erin, who posted earlier this month that "somebody actually put me on a jury" and "i can’t wait to decide the lives and deaths of men tomorrow." After Robert W. Kelley wrote about her at his Florida Jury Selection Blog, she answered back with a post captioned, dear members of the florida bar: welcome to my shitty blog. Kelley said that Erin’s blog was pointed out to him by jury consultant Amy Singer, who wrote, "This blog post illustrates the necessity of online searching venire panelists for information."

These two recent examples of blogging jurors demonstrate that there is no longer any question of the need for lawyers to ask potential jurors if they are writing online, says another jury consultant, Anne Reed, writing at her blog Deliberations. The question now, she says, is not whether to ask, but how. "There are nearly countless ways a juror could be writing on line," she explains. "You need some sense of the landscape to ask about them, or you’ll get partial answers or answers you don’t understand." To that end, she offers the first in what she says will be a multipart guide for lawyers to the world of social networking.

As for Erin, her perspective on all this may be the most prescient. Acknowledging the to-do over blogging jurors, she comments:

"okay i didn’t write my thesis on psychometrics or anything (yes i did) but i bet if you dismissed every potential juror with some type of internet presence you would end up with range restriction galore. EVERYBODY UNDER THIRTY IS ON THE INTERNET. those are my peers." "

Wisconsin legal malpractice insurers have published a breakdown of legal malpractice claims.  Here, reported by Bonnie Shucha in the University of Wisconsin blog, are the most commonly sued for mistakes:

Calendaring – 23%

Failure to know or properly apply law – 14%

Planning error in choice of procedures – 13%

Inadequate discovery & investigation – 12%

Failure to obtain consent/inform client – 6%

Why calendaring?  It is the easiest to see.  Calendaring mistakes lead to dismissals for failure to appear, which is sublimely easy to comprehend and explain to a judge/jury.

Tort and Contract are alternative explanations of differing duties.  In tort, the duty arises simply from the agreement to perform, and then failing to heed the standard of care, with damages.  In contract, the dury arises from an agreement to perform certain specific tasks.  As an example, the agreement to prosecute an appeal.  when that does not get done, there is both a tort and a contract cause of action.  Here is an article discussing these principals in an Arizona context.

This [and the last?] century seem to be overwhelmingly linked with social changes and legal process.  Law suits have proliferated, there are more lawyers then ever, social change may happen more because of a docket than any other reason.  Here is an example:  the lemon law.  Previously caveat emptor, this simple social protective device has morphed into an industry.

Here is another take on a case we reported yesterday.  A spurious legal malpractice counterclaim and the aftermath.

 

These attorneys, all former Ohrenstein & Brown lawyers, were tenants of the WTC,   The firm received a big WTC payout.  Who were partners, who were not?  That is the question in this case. 

The common link is that these attorneys all do legal malpractice defense work. 

"In a lawsuit filed last year in Manhattan Supreme Court, former Ohrenstein & Brown partners Annmarie D’Amour, John R. Sachs and Philip Touitou charged that five other partners conspired to keep almost $4 million of the insurance money – a huge windfall for the small firm – for themselves, shutting out the firm’s other members (NYLJ, Apr. 28, 2006).

The suit alleges they did this by declaring themselves equity partners and the others non-equity, distinctions the plaintiffs claim had not existed at the firm prior to the arrival of the insurance payout. But the five partners targeted in the suit maintain Ohrenstein & Brown had long operated as a two-tier partnership in which they were the only equity partners and the only ones entitled to the money. The five partners are Manfred Ohrenstein, the former Democratic leader in the state senate; Michael Brown; Christopher Hitchcock; Geoffrey W. Heineman and Abraham Havkins.

Speaking of Sordid settlement techniques, as in the last post, here isa "sharp dealing" estate matter where an attorney was named as executor:

A New Jersey attorney and his client, who last May escaped conviction on charges they unduly pressured an elderly widow to name them as executor and beneficiary of her multimillion dollar estate, now are trying to avoid punitive damages.

A New Jersey appeals court ruled last December that although Ronald Casale and his client, Dr. Ronald Sollitto, could not be forced to pay attorney fees to the beneficiary they effectively disinherited, a jury could still assess punitive damages against them.

Last week, Casale and a lawyer for Sollitto argued to the state Supreme Court that to allow such a remedy would clog the courts and drastically alter the law of trusts and estates.

The case, In the Matter of the Estate of Madeline Stockdale, A-121-06, stems from a challenge to a 2000 will drafted by Casale that named Sollitto, his friend and longtime client, as the chief beneficiary of Madeline Stockdale’s estate and Casale the sole executor. The challenger was the Spring Lake First Aid Squad, which under an earlier will would have received most of the estate.

Casale drafted the later will for Stockdale, a nonagenarian, while she was in a rehabilitation facility recovering from a hip fracture. It was executed on Jan. 3, 2000, a day before she had throat surgery.

The same day, Stockdale also signed a real estate contract — drawn up by Spring Lake, N.J., solo Thomas Foley on instructions from Sollitto — by which she agreed to sell Sollitto her Spring Lake home for $1.3 million. The contract required only a $1,000 initial deposit, followed by a second deposit of $56,000, with Stockdale taking back a purchase money mortgage for the rest. The will drafted by Casale excused Sollitto’s obligation to pay off the mortgage, since as residuary beneficiary the money would go to him anyway.

Settle a big case?  Do it on your own?  Have a little help from inside insurance company employees?  Here is a story of sordid settlement techniques:

"A Texas lawyer indicted for allegedly paying two former employees of The Hartford Financial Services Group Inc. insurance settlement kickbacks has accused the employees of extorting $3 million from him.

Todd Hoeffner, 42, made the accusation in response to a malpractice lawsuit filed against him by his clients. The lawyer accused the two employees of The Hartford of forcing him to pay them $3 million from fees he earned representing 1,000 victims of silicosis. The insurer’s employees threatened to block settlements of the cases if he didn’t pay the bribes, he alleged.

"Employees of The Hartford held hostage the legal rights of Hoeffner and his clients in a plan calculated to enrich themselves," Chris Flood, his lawyer, wrote in papers filed Monday in federal court in Corpus Christi, Texas.

In June, Hoeffner was, himself, charged with bribing two former Hartford claims handlers, Rachel Rossow, 41, of Redding, and John Prestage, 36, of Newington. The three planned to share attorney’s fees obtained from more than $34 million in settlements for Hoeffner’s clients, the government alleged. His clients were exposed to lung-destroying silica dust in their jobs as sandblasters and foundry workers.

Hoeffner, Rossow and Prestage have been charged with conspiracy, mail fraud, wire fraud, conspiracy to commit money laundering and money laundering. "