The Court of Claims is the only court in which New York State may be sued, and of course, only New York State may be sued in the Court of Claims.  It is often said that the Court of Claims is a statutory court with special rules.  One of the rules was that a specific amount had to be stated in a complaint, and the failure to do so was jurisdictional.

Claimants [not plaintiffs] lost their rights based upon this small defect.  Now, the law has changed. Today’sNYLJ article reports:

"Suits being brought in the Court of Claims need no longer specify how much in damages the plaintiffs are seeking in actions for personal injury, medical, dental or podiatric malpratice or wrongful death, under legislation signed into law by Governor Eliot Spitzer.

The governor wrote in an approval message that the new statute is in response to the ruling in Kolnacki v. State of New York, 8 NY3d 277 (2007) in which the Court of Appeals, ever the stickler for adhering to court filing procedures, dismissed a Court of Claims action because it failed to have a completed ad damnum clause (NYLJ, March 23, 2007)."

The governor also signed a bill that allows judges to ignore, or allow to be corrected, harmless errors made in court papers at the commencement of actions.

Law Com reports a further spin off of the QualComm litigation problems. 

"It’s something no lawyer wants to get — a ruling from a federal magistrate saying, essentially: “come on down to court and explain to us why you don’t think you should be sanctioned for your behavior.” But that’s what lawyers at Day Casebeer Madrid & Batchelder, based in Cupertino, Calif., received earlier this week from San Diego federal magistrate Barbara Major.

The ruling was essentially a follow-up to a separate ruling made last week by San Diego federal judge Rudi Brewster. Judge Brewster held that wireless giant Qualcomm and its trial counsel, which included lawyers from Day Casebeer, committed “gross litigation misconduct” by withholding crucial evidence in a patent dispute brought by Broadcom. He ordered Qualcomm to pay legal fees to Broadcom, which could amount to $10 million.

Earlier this week, Qualcomm general counsel Lou Lupin resigned in the wake of the situation. Now the spotlight is swinging to the wireless company’s outside counsel, who have been requested to appear in court on Aug. 29 to explain themselves. "

Law blog reports this story of an attorney who saved a life.

"This past weekend, a Lerach Coughlin lawyer, Paul Geller (pictured, left), a name partner at the firm and head of its Boca Raton, Fla., office, saved a pregnant woman and her small schnauzer, Midnight Duke, from two attacking pitbulls"

"We caught up with Geller this morning, who recounted the tale. Geller was driving his 8-year old son home from a soccer practice last Saturday evening when, on a residential street in Delray Beach, he saw two pit bulls attacking a woman walking her dog. He pulled his car over and, after explaining to his son what he was about to do — “don’t try this at home” — he exited the car and ran to the melee. “The woman was on the ground and one of the pit bulls was on top of her,” he recalls. “Blood was everywhere.”

Geller says he was nervous — “the adrenaline was flowing” — but he had something going for him that the rest of us might not — he’s an expert in jujitsu, chronicled in this recent article from Boca Life. (Note to Hollywood writers looking for quirky-lawyer details for your next screenplay: Geller practices jujitsu in a room in Lerach Coughlin’s offices.)

“My instinct was that I should kick the dog that was attacking,” he says. “So that’s what I did.” Geller says he barked a few loud commands at the startled dog, at which point it and its colleague ran back toward the yard from which they’d come. Geller helped the woman and a badly wounded Midnight Duke into his car and saw them to safety. The aftermath — the woman, who suffered a bite to the face, and her baby are fine, as is Midnight Duke, who had to undergo a lengthy surgical procedure. Geller, who calls himself a dog-lover, says he isn’t sure what became of the pit bulls."

Times for notice of motion and cross-motion changed in July.  We reported it, and here is an article from the NYLJ by Howard Shafer which gives a comprehensive outline.

"The New York State Legislature passed an act amending New York Civil Practice Law and Rules R. 2214(b) and 2215.1 These recent amendments to the New York CPLR, effective July 3, 2007, make significant changes to the notice requirements for making and responding to motions cross-motions.

Notices of motion are usually served by mail. In the case of ordinary mail, five days are tacked onto CPLR R. 2214(b)’s requirement that the movant must give at least eight days notice of the motion, thus making the notice period 13 days.5 One day is tacked on where overnight mail service is used, making the notice period nine days.6

For example, if today is Aug. 1 and the motion papers are to be mailed today, the earliest day for which the hearing can be set if service is to be via ordinary mail is Aug. 14. If service is to be via overnight mail, the earliest day for which the hearing can be set is Aug. 10.

CPLR R. 2214(b) further requires that answering affidavits be served at least two days before the motion is noticed to be heard. Using the previous example, the other side must now serve its answering papers by placing it in the mail on Aug. 12. CPLR 2103(b)’s tacking-on of days does not apply to answering papers."

In this New Jersey Case , DIANNE VIGLIONE v.CHRISTINE FARRINGTON, ESQ.,  we find the NJ Supreme Court discussing the emotional and cerebral aspects of matrimonial litigation, and giving the plaintiff a little breathing room in bringing this legal malpractice case.  Does this portend a different rule for matrimonial legal malpractice cases in NJ?

Great emotional pain and stress are attached to contested matrimonial proceedings, where "the client’s desires may be influenced in large measure by the advice the lawyer provides[.]" Ziegelheim v. Apollo, 128 N.J. 250, 261 (1992). An economically dependent spouse relies on his or her matrimonial attorney to lead the way through the litigation labyrinth to the path of future economic security. Nothing in this record suggests that plaintiff knew or should have known that defendant had taken her off-course. While plaintiff expressed disappointment with the final divorce settlement, she had no reason to know that defendant’s advice regarding the resolution of the alimony and equitable distribution issues upon the termination of her long-term marriage, were significantly flawed.

Plaintiff’s acceptance of defendant’s expertise, supporting her lack of knowledge that malpractice had occurred, was accentuated by plaintiff’s execution of a post-judgment retainer agreement with defendant one month following the divorce settlement. Had plaintiff possessed the knowledge that legal malpractice occurred, she would likely not have engaged defendant to provide new legal services.

Also, we do not agree that plaintiff’s conversation with Ruitenberg prior to signing the PSA provided sufficient notice of the "facts essential to the malpractice claim," Vastano, supra, 178 N.J. at 236 (quoting Grunwald, supra, 131 N.J. at 494), such that her cause of action accrued. Ruitenberg, an accountant, is unqualified to give legal advice. Further, the record reveals Ruitenberg also told plaintiff "you have to listen to your attorney." And plaintiff did just that by accepting the PSA. Her actions are not only understandable, but were reasonable, under the totality of the circumstances. Giving plaintiff the benefit of the discovery rule, we conclude her cause of action was not barred by the six-year statute of limitations, N.J.S.A. 2A:14-1, when her malpractice complaint was filed.

The motion judge’s tangential comments regarding the defenses of waiver and estoppel raise fact-sensitive issues, which cannot properly be determined in a motion for summary judgment. The specific representations by Corcoran, as well as any assertions by plaintiff in the post-judgment hearing before Judge Humphreys, need to be further examined.

Finally, we determine the motion judge must again review her discretionary denial of plaintiff’s application to amend her complaint to add an additional cause of action for malpractice based on defendant’s alleged violation of RPC 1.4, 1.7, and 1.8. Because the motion judge’s conclusion was bottomed on the dismissal of the complaint as barred by the statute of limitations, which decision we have reversed, consideration of plaintiff’s request must be made and fairly evaluated in the light of our disposition. "

Here is a comprehensive and well written case from NJ which discusses when a statute of limitations starts to run there.  NJ, unlike NY has a "discovery" statute of limitations. DIANNE VIGLIONE v. CHRISTINE FARRINGTON, ESQ.,

"A legal malpractice action is based on negligence. Grunwald v. Bronkesh, 131 N.J. 483, 492 (1993). A cause of action for malpractice usually "accrues when an attorney’s breach of professional duty proximately causes a plaintiff’s damages." Ibid. This occurs when a plaintiff "detrimentally relies on the negligent advice of an attorney." Id. at 495. The timeliness of a complaint for legal malpractice is governed by N.J.S.A. 2A:14-1; McGrogan v. Till, 167 N.J. 414, 417 (2001). The statute requires that a legal malpractice action commence within six years from the accrual of the cause of action. Id. at 424-26; Grunwald, supra, 131 N.J. at 499.

While the above formulation may seem to provide a bright-line rule, the Court has recognized "the unfairness of an inflexible application of the statute of limitations when a client would not reasonably be aware of ‘the underlying factual basis for a cause of action.’" Vastano v. Algeier, 178 N.J. 230, 236 (2003) (quoting Grunwald, supra, 131 N.J. at 492-93). To protect such uninformed clients, the Court has adopted a discovery rule in situations where the injury is "not readily ascertainable." Ibid. On this point, the Court has explained:

Without the discovery rule, the limitations period would run from the occurrence of the negligent act. Therefore, a scoundrel would have an incentive to conceal material facts from or to misrepresent those facts to the client so that a malpractice claim would be time-barred. Applying the discovery rule to legal-malpractice actions will remove the incentive to deceive and thus will preserve the fiduciary duty of full disclosure. [Grunwald, supra, 131 N.J. at 494.]

The Court concluded that the statute of limitation period for a legal malpractice claim, in these circumstances, does not run until "the client suffers actual damage and discovers, or through the use of reasonable diligence should discover, the facts essential to the malpractice claim." Vastano, supra, 178 N.J. at 236 (quoting Grunwald, supra, 131 N.J. at 494).

"The linchpin of the discovery rule is the unfairness of barring claims of unknowing parties." Caravaggio v. D’Agostini, 166 N.J. 237, 245 (2001) (quoting Mancuso v. Neckles, 163 N.J. 26, 29 (2000). Thus, "[i]n applying the discovery rule, a court must determine when the plaintiff became aware of the underlying factual basis for the legal-malpractice action." Olds v. Donnelly, 150 N.J. 424, 437 (1997). "

In a different but related case, Anthony Lin of the NYLJ goes on to tell about "top private equity firm Thomas H. Lee has sued Mayer, Brown, Rowe & Maw for $245 million for allegedly misrepresenting the financial shape of commodities brokerage Refco prior to Lee’s acquisition of a controlling interest. Seward & Kissel is also a defendant in a $200 million lawsuit brought by institutional investors who lost money when one of the law firm’s hedge fund clients went under.

There are a number of reasons investment fund clients may be more willing to bite the hand that lawyers them when things go wrong. For one thing, there is almost always a lot of money on the line, and given the nature of their business, investment fund principals experience losses in a more visceral way than, say, corporate executives.

"It’s up close and personal," said Leslie D. Corwin, a partner at Greenberg Traurig specializing in business disputes involving law firms. When fund principals’ expectations of making massive amounts of money are thwarted, he said, they cast around for people to blame.

Law firms are more in the line of fire because they play a much bigger role at investment funds than they do for corporate clients. Even though funds may control companies with large in-house legal departments, they sometimes lack even a general counsel themselves. They therefore develop unusually close relationships with outside lawyers, and feelings can be unusually hard when things do not go well.

"Hedge funds are oftentimes run as if they are small businesses, so every decision matters a lot more to the proprietor," said Barry Barbash, head of the funds practice at Willkie Farr & Gallagher. "The client relationships are more intense and can become more confrontational."

But, from another perspective, Scott Greenfield sees this downturn in mortgages as a new vista for white collar [and potentially, white shoe] criminal defense attorneys.

For a while, a million dollar or a multi-million dollar case was a big number.  Imagine, not just several hundred thousands!  Now, Anthony Lin of the New York Law Journal reports that Akin Gump has been sued by a hedge fund client for $ 4 Billion.  Will we be seeing larger than life numbers like this in failed real estate and mortgage  transactions, failed hedge funds, failed REIT transactions in this new economic downturn? 

"Like most hedge fund managers, James McBride and Kevin Larson expected to make a tidy sum. By the fall of 2003, they seemed well on their way. The series of Veras funds they had launched less than two years before had already attracted around $1 billion in investments.

But then regulators, including then-New York state Attorney General Eliot Spitzer and the Securities and Exchange Commission, came after the Veras funds for "late trading," the illegal purchasing of mutual fund shares after the 4 p.m. market close. Veras wound up paying more than $36 million in penalties before shutting down. McBride and Larson each paid $750,000 and were barred from the industry.

But the ex-fund managers are still out for big money, this time from the law firm they claim advised them that late trading was legal. In February, the former hedge fund managers filed suit against Akin Gump Strauss Hauer & Feld in Manhattan Supreme Court.

Their damages claim? A whopping $4.4 billion, not including punitive damages.

Akin Gump has denounced the suit.

"The allegations of wrongdoing in Veras’ Complaint are without merit. At all times, Akin Gump acted ethically and in its client’s best interests," said firm spokeswoman Kristen White. "Akin Gump is forcefully defending this case, and we are confident we will prevail."

The suit illustrates the risks law firms face as they try to reap the rewards of representing private investment funds, including hedge funds and private equity funds. Such funds generate high legal bills for firms, but they are apt to strike back hard when they feel lawyers have led them astray."