Mylan Laboratories Inc., Mylan Pharmaceuticals Inc. and UDL Laboratories Inc. v. Eliot G. Disner,  is a just reported, newly filed legal malpractice case in West Virginia.  The Claim, as reported by The West Virginia Record is:

"Mylan claims Disner and co-defendants committed legal malpractice as an advisor to Mylan on antitrust law. They claim his malpractice involved not fully investigating and or researching issues involving an exclusive supply agreement Mylan entered into with Profarmaco/GYMA; allowing Mylan to endanger itself regarding antitrust issues by entering into discussions with SST/FIS about a similar exclusive arrangement; and by, one an FTC investigation was launched, offering no advise on dealing with the risks involved but by instead underselling the FTC’s ability to seek damages. Mylan claims these actions resulted in millions of dollars in damages and legal fees.

Kilpatrick Stockton LLP report that a Cornell Law School study shows very interesting results for appeals.  There is a much greater reversal rate for trials than one might expect.

"Two Cornell Law School professors recently examined civil appeals in the state-court systems. See Theodore Eisenberg & Michael Heise, Plaintiphobia in State Court? An Empirical Study of State Court Trials on Appeal, Cornell Legal Studies Research Paper No. 07-006 (May 2007). Their study used data from 46 of the nation’s 75 most populous counties and included jurisdictions in California, Florida, Georgia, Illinois, Massachusetts, Michigan, North Carolina, New Jersey, New York, Ohio, Pennsylvania, Texas, and Virginia. The study looked at 8038 jury or bench trials and the resulting 549 appeals that were litigated to conclusion on appeal. (Because the study focused on trial verdicts, cases that were disposed of in other ways, e.g., pretrial motion, were not included.)

The principal conclusions of the study – some of which are surprising and counterintuitive to appellate practitioners – include the following:

Of the 8038 trial cases, only 965 (12%) led to an appeal. And of the 965 appeals taken, only 549 (57%) proceeded to decision in the appellate courts; the rest were terminated during the appellate process (e.g., settled or became moot). Of the 965 cases in which an appeal was commenced, only 24 reached the state’s highest court.
The percentage of trial judgments appealed varied considerably by the subject matter of the case. For example, appeals occurred in 30% of employment-contract cases, 26% of products-liability cases, and 18% of fraud cases.
Defendants that lost at trial were slightly more likely to appeal than plaintiffs that lost – 13% vs. 11%. The losing party was a bit more likely to appeal from a bench trial than a jury trial – 15% vs. 11%.
Appellate courts reversed the trial verdict in 32% of the appeals. The reversal rate varies greatly by state – for example, it was 13% in Georgia and 56% in New Jersey. The overall reversal rate also significantly depends on the type of case – it was 32% in fraud cases and 33% in products-liability cases, but 50% in employment-contract cases.
Notably, as between appeals taken by defendants and those by plaintiffs, the results were “starkly asymmetric” (Study at 13) in favor of defendants. In fact, defendants’ appeals were much more likely to be successful than were plaintiffs’ – 42% vs. 22%.
For example, defendants prevailed in 62% of their appeals in employment-contract cases, while plaintiffs won 39% of their appeals. In fraud appeals, the numbers were 39% and 15%, respectively.
Likewise, notwithstanding the appellate deference usually accorded to jury verdicts, appellate courts were more likely to reverse jury verdicts than bench verdicts – 34% vs. 28%.
Accordingly, the study “suggests an appeals court tilt favoring defendants, especially defendants that lost in a jury trial.” Study at 13 (emphasis added"

Missing a court date is a common motif in legal malpractice.  Daniel Wise of the NYLJ reports that the Kings and Queens Civil Courts calendars are now online, that the balance of the NYC civil courts will soon follow, as well as many upstate City courts.

"The court system expanded its Web site yesterday to include information on cases in some lower courts. With the launch of the "WebCivil Local" section of the Web site, case history and other information is now available for matters in the Brooklyn and Queens branches of the New York City Civil Court and the Auburn City Court. A feature on the expanded site will permit attorneys to generate calendars of all cases pending in local courts that have been incorporated in to the system. Information on Civil Court cases in Bronx and Staten Island will be available in the fall. The Civil Court in New York County, which has a computer system that is more difficult to convert to Internet use, will be put online sometime later as will the state’s remaining 60 city courts and two District Courts, both of which are on Long Island. WebCivil can be reached through the E-Courts link on the court system’s Web site, www.nycourts.gov."

A unique New Jersey obligation in legal malpractice is akin to a NY medical malpractice certification of merit.  In NJ, plaintiff must file a certificate that the case has merit.  Surely it is simply a formality?  As this case demonstrates, it is not.,

"We have reviewed plaintiff’s contentions in light of the record and applicable law. We find her arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A). We agree with Judge Alcazar that plaintiff was required to provide an Affidavit of Merit in this case and failed to do so. We note that, to this day, plaintiff has never provided a certification from an expert stating what specific information would be needed to assess the merits of her claim. In that regard, plaintiff’s only specific request for such information came in the form of a letter to defendants in response to their summary judgment motion. In addition, we agree that plaintiff’s complaint clearly lacks substantive merit. See Puder v. Buechel, 183 N.J. 428 (2005). "

Hinshaw reports this case in which the claim is that witnesses were inadequately prepared, and thus suffered damage. 

"A Georgia appellate court recently rejected a claim by clients of a law firm that their lawyers were liable to them for certain adverse consequences stemming from the lawyers’ allegedly insufficiently preparing them to testify as witnesses in an underlying action. In that underlying lawsuit, plaintiffs/clients were held liable to a former business associate/shareholder for fraud, which included an unauthorized merger of the jointly owned business. Plaintiffs subsequently filed their lawsuit against the lawyers. The court held that the law firm could not be liable for punitive damages imposed on the clients. But it found a question of fact as to whether the firm’s failure to call an expert witness was an informed judgment call. After remanding the case, the court reviewed another summary judgment for the law firm, this time concerning trial preparation, and a denial of a motion concerning negligent preparation of merger documents.

One plaintiff contended that she had not been prepared for being called first, as an adverse witness. Consequently, she further alleged, she was frustrated and “was presented as an angry, upset woman.” The other plaintiff contended that lack of preparation made him “look like a fool.” Plaintiffs’ expert witness testified that with proper preparation, plaintiffs, would have not looked so evasive and would have presented better to the jury.

In upholding summary judgment for the lawyers, the court held that the adverse effect on demeanor was not sufficient to withstand summary judgment. The court stated:

We find this generalized expert testimony insufficient to raise an issue of fact on whether appellants would have prevailed in the underlying litigation if they had been prepared differently for trial. . . . There is no evidence that the Pauls failed to give testimony that they would have given if they had been better prepared, or that such evidence would have changed the outcome of the trial. . . . "

Jenkins & Gilcrist, subject of more than a few blog blurbs, is in the news again.

"A former client of Jenkens & Gilchrist sued the Dallas-based firm in federal court in New York on June 8 alleging malpractice and breach of contract in connection with the firm’s work on a reverse merger in 2004.

The former client alleges in Tactica International Inc., et al. v Jenkens & Gilchrist that Jenkens’ negligence on the merger caused its stock price to drop and ultimately led to financial difficulties that forced it to file bankruptcy.

The complaint was filed in the U.S. District Court for the Southern District of New York by Tactica International, a New York distributor of personal care products; the Tactica Creditor Trust; Joseph E. Myers, the creditor trustee; and IGIA Inc., a New York company related to Tactica.

The plaintiffs seek a minimum of $10 million on the malpractice cause of action and a minimum of $10 million for breach of contract from Jenkens. "

But Jenkens, once a 600-lawyer firm, closed its doors on March 31, five days after its leaders signed a nonprosecution cooperation agreement with the U.S. Attorney’s Office for the Southern District of New York to resolve alleged criminal tax violations linked to the firm’s former Chicago-based tax-shelter practice.

The rule is that an attorney may not do business with a client, may not accept loans or give loans.  There are exceptions, and with enough disclosure the transaction may not result in suspension, but in this particular story:

"A prominent Rochester personal-injury attorney has been suspended for 18 months for a series of disciplinary violations centering primarily on the 200-plus loans he made via intermediaries to his own clients.

A unanimous Appellate Division, Fourth Department, panel found that James J. Moran made more than 200 loans totaling more than $700,000. The panel said that the loans through third parties for non-litigation-related expenses did not "directly" violate the Code of Professional Responsibility, but that Mr. Moran’s actions nonetheless "circumvented" the code, which in itself is a violation.

According to the ruling, Mr. Moran conceded that he knew his conduct violated disciplinary rules, but "he stated that he provided the financial assistance so that his clients would not be required to borrow funds from lending companies at exorbitant rates of interest."

" The committee also claimed that Mr. Moran violated the disciplinary code by posting on his firm’s Web site information about a confidential disciplinary investigation of a rival personal-injury firm, and by failing to include a required disclaimer when referring to himself as a trial specialist on his Web site.

This blurb from Hinshaw raises more questions than it answers.  Read it and try to decipher:

"A federal district court has held that absent reliance by the client of a lawyer, the lawyer’s apparent partner was not liable to the client in a legal malpractice action against the lawyer for the cost of litigation arising out of the lawyer’s allegedly negligent amendment of a trust. The issue before the court concerned whether the apparent partner, who was the lawyer’s father and whose name was on the lawyer’s letterhead, was an apparent partner of the lawyer. The court acknowledged that a partnership by estoppel might be created in such a situation under Wisconsin’s version of the Uniform Partnership Act. It consequently found that the issue was whether the required extension of credit or a change in position was met. The court held that the apparent existence of the partnership, alone, did not establish that those requirements were met without evidence of involvement of the lawyer’s father in the representation. "