New York newspapers don”t generally inform the public about civil trials.  The Madison Record regularly reports on civil cases, and from them we get this story:

"Brad Lakin didn’t know that a federal judge in Oklahoma entered default judgment of about $4 million against his firm until he read about it in a newspaper, according to Gail Renshaw of the Lakin firm.

Renshaw moved June 6 to stay collection proceedings on the Oklahoma judgment in U.S. District Court at East St. Louis.

In April the Oklahoma court awarded $3,752,601.80 to former Lakin client Stephen Williams.

Williams claimed that James Gibson, an investor the Lakins recommended, stole most of the proceeds of his injury settlement.

On May 29, Williams asked the court in East St. Louis to examine Brad Lakin about his assets on an expedited basis.

According to Renshaw, Lakin read about the judgment May 30.

She did not identify the source, writing that he read it in "a local Southern Illinois newspaper."

The Madison County Record reported the judgment on its website that day. "

While not strictly legal malpractice, this case deals with arbitration of professional fees and accounting malpractice.  The kicker?  It involvs the E-Street Band drummer. 

"Gursey’s retainer agreement contained an arbitration provision that provided for mandatory arbitration of “[a]ny controversy, claim, or dispute relating to . . . unpaid fees for professional services.” Further, the arbitration clause provided that:

if Kathlynn should have any claims of professional malpractice against Gursey, she must raise such claims as a defense to Gursey’s arbitration action for unpaid fees
the only way that Kathlynn can bring an action in court against Gursey for accounting malpractice is if she (i) prevails in the arbitration (i.e., the arbitrator determines that Kathlynn does not owe Gursey any money), and (ii) the arbitrator does not limit Kathlynn’s relief to the amount of Gursey’s contended fees
if, however, the arbitrator determines that Kathlynn does not owe Gursey any money for its services, but that her malpractice claim does not exceed Gursey’s contended fees, Kathlynn “will be prevented from bringing the same contention in any separate civil action.”
In 2002, Kathlynn’s attorney negotiated a marital settlement agreement in which she gave up the rights to certain cash and virtually all of Danny’s E Street Band royalties. Kathlynn later believed that the settlement was extremely unfavorable and that Gursey was partly to blame. She refused to pay Gursey for its services.

In June 2003, Gursey initiated an arbitration proceeding against Kathlynn for unpaid fees. Kathlynn did not oppose the arbitration or raise a counter-claim for accounting malpractice. In July 2003, the arbitrator awarded Gursey over $29,000.

On February 10, 2005, Kathlynn filed a professional negligence complaint in California state court against Gursey alleging that due to Gursey’s malpractice, Kathlynn failed to receive any portion of significant assets in the marital settlement. Gursey filed a demurrer – California’s equivalent of a motion to dismiss – asserting that Kathlynn’s malpractice claim was barred by the doctrines of waiver and res judicata. Among other things, Gursey argued that the arbitration clause obligated Kathlynn to raise the malpractice claim during the arbitration, and her failure to do so effectively waived her malpractice claim. The trial court sustained the demurrer.

On appeal, Kathlynn argued that even if the arbitration provision required her to assert her malpractice claim in connection with the arbitration, such a requirement is unconscionable. The appellate court rejected this argument for two reasons. First, Kathlynn waived the right to argue “unconscionability” because she failed to do so during the arbitration. Second, even assuming that the arbitration provision was procedurally unconscionable (i.e., a contract of adhesion), Kathlynn also failed to show that the provision is substantively unconscionable (i.e., overly harsh or one-sided). Under California law, both types of unconscionability must be established to invalidate a contract.

The appellate court did not believe that Gursey’s arbitration clause was substantively unconscionable, because the arbitration agreement only required Kathlynn to arbitrate Gursey’s claim for unpaid fees. If such arbitration took place, Kathlynn was further obligated to assert any related malpractice claims as a defense/offset to Gursey’s claim for unpaid fees. The court believed that these requirements, by themselves, are not unconscionable. In reaching this conclusion, the court stated: “It is important to note, however, that the arbitration provision did not attempt to impose a monetary ceiling on a potential malpractice recovery; plaintiff did not contract away her right to receive a malpractice award exceeding her accountancy fees.”

We have all been faced with a motion that is not so well written or supported.  This case,Root v Brotmann, 2007 NY Slip Op 05353 ,Decided on June 19, 2007 ,Appellate Division, First Department  illustrates the principal that its not right to file deficient papers, and then try to paper over the holes with a reply.

Rule= no new arguments on reply.

This report of proceedings in the Qualcomm case is the exception to the rule of making no admission absent a gun to the head.  At stake are attorney fees in a huge patent case.

"“Lawyers can make mistakes,” said Bill Boggs, Qualcomm’s new lead attorney in the case.
He explained how the San Diego company had failed to turn over 46,610 documents, totaling 332,101 pages, to Broadcom in the pretrial discovery phase and how Qualcomm had introduced misstatements of fact into the trial.

“It’s not intentional,” he said. Later, Boggs said, “Mistakes were made. Documents should have been produced.” Irvine-based chipmaker Broadcom won the case by convincing a jury during a three-week January trial in San Diego federal court that it had not infringed on two of Qualcomm’s video compression patents.

Ordinarily, Broadcom would be responsible for paying its own attorneys’ fees – which likely run in the millions of dollars. But Broadcom lead attorney William Lee argued yesterday that the case was “exceptional,” a legal term that means a patent-infringement case was prosecuted in bad faith, with gross negligence or with misconduct, and therefore Broadcom was entitled to have Qualcomm pay the Broadcom attorneys.

“This is not, as Qualcomm has said, an innocent oversight, a common mistake or everyday litigation occurrence,” Lee said. "

Perhaps Qualcomm believes a small admission now will save big $$ later.

We recently reported on a federal deposition sanction case in which the attorney was sanctioned.  Here in Cameron Industries v. Mother Work plaintiff’s attorney skirts ever so close to sanctions.  He helps out, answers questions for his client, and clariies endlessly.  No sanction, however.

"If an attorney concludes that a deposition "is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass or oppress," application can be made to the court for relief. Fed.R.Civ. P. 30(d) (4). In order to ensure that this remedy will provide relief in an effective and practical manner, I invited counsel in this case, as I do in all cases in which I supervise discovery, to call my chambers for a ruling if they have a dispute at a deposition that they cannot resolve.

As any practitioner unfortunately knows, adherence to the foregoing rules rarely occurs.1

The conduct of plaintiff’s counsel here was plainly inconsistent with the foregoing rules. The excerpts quoted above demonstrate that plaintiff’s counsel volunteered information to the witness, made unnecessary, unjustified and unprofessional remarks concerning defendant’s counsel, made unnecessary and suggestive speaking objections, improperly posed his own questions during defendant’s direct examination instead of conducting cross-examination, contradicted the witness’s testimony and issued instructions to the witness not to answer questions on the grounds of irrelevance. Plaintiff’s counsel claims in his opposition to defendant’s motion that his interruptions were necessary to insure an accurate record. This response, however, overlooks what should be obvious. The Federal Rules of Civil Procedure provide two mechanisms to correct or clarify deposition testimony, namely cross-examination and through submission to the witness for review. Fed.R.Civ.P. 30 (e). Since the Rules establish the procedures to be used to clarify or correct testimony, neither counsel nor the court are simply not free to ignore them and create new procedures based on personal preference.

Although plaintiff’s counsel’s conduct was improper and unbecoming, it does not, however, follow that an award of sanctions is appropriate. Under 28 U.S.C. §1927, an award of sanctions is appropriate when the offending attorney "essentially destroys a deposition through excessive groundless objections or lengthy personal attacks on his or her adversary." Am. Fun & Toy Creators, Inc. v. Gemmy Indus., Inc., 96 Civ. 799 (AGS) (JCF), 1997 WL 482518 at *8 (S.D.N.Y. Aug. 21, 1997); accord Sicurelli v. Jeneric/Pentron, Inc., 03 CV 4934 (SLT) (KAM), 2005 WL 3591701 at *3 (E.D.N.Y. Dec. 30, 2005), report & recommendation adopted by, 2006 WL 681212 (E.D.N.Y. Mar. 14, 2006); Morales v. Zondo, Inc., 204 F.R.D. 50, 54 (S.D.N.Y. 2001). Fed.R.Civ.P. 30(d) (3) provides that an award of sanctions is appropriate "[i]f the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent."

I have reviewed the transcripts of the Waldman and Khayyam depositions in their entirety. Although some of the conduct of plaintiff’s counsel is indefensible, his conduct cannot accurately be described as destroying either deposition or as frustrating the fair examination of the deponents."

The facts of thiscase are sad. DR. GARY SAFIER, Plaintiff v.  WALDER, SONDAK & BROGAN, P.C.,
JUSTIN WALDER, ESQ. and JOHN BROGAN, ESQ., and AMBROSIO, KYREAKAKIS & DI LORENZO, 

Doctor knowingly prescribes narcotics to a wealthy addict for years, and nets a hue of money for doing so.  Another doctor turns him in, and he ends up working his way into a diversion program.  His attorneys save the doctor’s license, and then sue for their unpaid fees.

Doctor resists, sues for legal malpractice and for a number of interesting reasons, loses. One reason for losing is his repeated habit of not paying lawyers and experts.  When the fee arbitration goes sour, he sues his next set of attorneys.  Not only does he lose there, but he is assessed $ 36,000 in sanctions, which is eventually washed away.

"As a final matter in this regard, we reject Dr. Safier’s position that, as "malpractice" defendants, the Ambrosio firm bore the burden of establishing the reasonable nature of the Walder defendants’ bill. This position would be correct if the dispute were directly with the Walder defendants. Cohen, supra, 146 N.J. at 156. However, this was not such a dispute, but rather, a malpractice action against attorneys whose services did not encompass the work that was the subject of the disputed bill. Dr. Safier has offered no precedent that would suggest the customary burdens of proof applicable to a legal malpractice action would be reversed in this double-tiered malpractice suit, simply because excessive billing was claimed in the underlying matter. "

Quinn Emanuel reports this case:  In a federal legal malpractice and section 1983 case, plaintiff’s attorney asked deposition questions of defendant which were intended to harass.  Defendant’s attorney told his client not to answer, and ran afoul of the 7th circuit.  They said he should have walked out and moved for a protective order.

"During a deposition, plaintiff ’s counsel asked a witness whether he had ever been “ordered to obtain psychiatric counseling or anger-management therapy.” The lawyer also asked whether the witness had ever engaged in homosexual conduct or been in any type of “homosexual clique with any other defendants” in the action. Id. at 468. The attorney defending the deposition instructed the witness not to answer on the basis that the questions were designed to harass. Id. Plaintiff then moved for sanctions based on the refusal to answer questions.

The district court concluded that “everyone had behaved badly and that, because [plaintiff ’s counsel] was the greater offender, no sanctions would be appropriate.” The district judge added that under the circumstances it was “ludicrous” for plaintiff to argue that “lawyers may not instruct witnesses not to answer.” Id. at 469.

The Seventh Circuit agreed that the questions were, undoubtedly, designed to harass, that plaintiff ’s counsel made no effort to establish how the lines of questioning could lead to admissible evidence, that the witness “would have been entitled to stalk out of the room,” and that his lawyer “could have called off the deposition and applied for a protective order (plus sanctions).” Id. at 468. The court, nonetheless, censured the deponent’s attorney for conduct unbecoming a member of the bar. As the Seventh Circuit explained, when there is harassment, “[c]ounsel for the witness may halt the deposition and apply for a protective order” pursuant to Federal Rule of Civil Procedure 30(d)(4). But he “must not instruct the witness to remain silent.” Id. at 467-68. Instead, “[a] person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4).” Id. The Seventh Circuit made clear that this bright line rule applies no matter how outrageous or harassing the line of questioning. "

We have often thought that plaintiff”s litigation is a high level gamble.  Meeting the client, evaluating the case, gathering the materials, bringing the action and engaging the opposition are the similar to sitting down at a poker table.

Here is a case to the nth power.  Casino patron walks in, slips on a nasty substance, possibly vomit, tries to get up and slips again, sues, loses, and loses again. 

"The plaintiff was walking through the lobby of the Trump Taj Mahal Casino Resort in Atlantic City when she slipped on a substance that she identified as vomit. Plaintiff did not see any substance on the floor prior to her fall. She further alleged that after she fell, a woman dressed in a blazer and holding a walkie-talkie, whom she believed to be a security guard, came over and told her to get up. When she tried to get up unassisted, she allegedly fell again in the vomit. Plaintiff and other family members left the casino, and plaintiff later received treatment at an emergency room facility.

Plaintiff subsequently retained the defendant law firm to represent her in an action against the casino. The law firm wrote a few letters demanding a settlement and requesting insurance information. No offer of settlement was made, and the statute of limitations expired before a lawsuit was filed. The plaintiff then commenced an action against the defendant law firm for legal malpractice for failing to file her lawsuit and failing to investigate the claim and protect her interests "