This case from SDNY illustrates two points:  the first is that dog bite cases really do require a history of a first bite, or proof that the dog in question was really really dangerous.  The second is that an attorney ignors a notice to admit at his peril.  Here, the attorney was reminded in writing and during a magistrate judges telephone conference.

"Because Plaintiffs did not respond to Defendant’s Request to Admit, dated September 13, 2005, Plaintiffs have admitted the Facts stated in the Request.

Federal Rule of Civil Procedure 36 permits a party to serve on another party a written request to admit any relevant fact. Fed. R. Civ. P. 36(a). The fact is deemed admitted unless, within thirty days of service of the request, the party to whom the request is directed serves a written answer or objection. Id. Any matter thus admitted is conclusively established, unless the court on motion permits withdrawal or amendment of the admission. Id. 36(b). Plaintiffs never answered or objected to Defendant’s Request to Admit, and they never moved to withdraw or amend their admission.

Plaintiffs’ attorney gave two reasons for the failure to respond: (1) a malfunctioning e-mail system and (2) a paralegal’s mistaken belief that the response to Defendant’s Local Rule 56.1 Statement was the response to the Request to Admit. (Park Aff. ¶¶49-50.) Neither explanation is persuasive. The condition of counsel’s e-mail system is not relevant, because the Request to Admit was served by overnight mail. (See Flanagan Reply Aff. ¶4.) Regardless of any confusion on the part of Plaintiffs’ counsel’s staff, Defendant’s counsel directly reminded Plaintiffs’ counsel about the Request to Admit by letter, and also did so in passing during a telephone conference with the chambers of Magistrate Judge Maas.2 (See id., Ex. A; id., Ex. B, at 4.)

"New York law holds the owner of a domestic animal strictly liable for injuries caused by the animal if the owner knew or should have known of the animal’s "vicious propensities." Collier v. Zambito, 807 N.E.2d 254, 257 (N.Y. 2004). An animal has vicious propensities if it is disposed to endanger the safety of people or property. Id. at 256 (citing Dickson v. McCoy, 39 N.Y. 400, 403 (1868)). Knowledge of a dog’s vicious propensities can be established by proof that the owner knew the dog had bitten someone in the past or that the dog had been known to growl, snap, or bare its teeth.

Morris Eisen was one of the most celebrated personal injury attorneys in NY.  His Woolworth Building offices buzzed, usually starting around 5:30 a.m., while firm attorneys and outsiders who were trying a case for Eisen that day would gather for breakfast and a pep talk.

All that ended with his downfall, which started when NYC officials proved that Eisen people actually improved a pot hole to make a case better.  He went to jail, the firm disbanded, and everything came to an end.  However, there was a huge inventory of personal injury cases, which were referred out to others.

Now, years after he went to jail and came back, the litigation over legal fees continues.,

"A lawsuit initiated by former personal-injury attorney Morris J. Eisen against a law firm that allegedly failed to pay him for work he performed on cases he referred to it when he was disbarred will go forward following a Manhattan judge’s denial of the firm’s motion to dismiss.

Mr. Eisen was disbarred in 1992 by the Appellate Division, First Department, based on his conviction the preceding year for racketeering.

At his criminal trial, prosecutors presented evidence that Mr. Eisen and six co-defendants won multi-million dollar verdicts by fabricating evidence and bribing witnesses. They smashed a car with a sledgehammer to increase the apparent damage, enlarged a pot hole with a pick ax to exaggerate its danger and used shrunken images of rulers to make potholes appear deeper, prosecutors claimed. A co-conspirator allegedly paid a witness to proffer the same testimony regarding two different car accidents, one of which occurred while the witness was in jail for possession of stolen property.

Mr. Eisen was sentenced to 57 months in prison and was released after serving three years. He was disbarred in January 1992.

Following his release, Mr. Eisen initiated a series of suits against firms he claimed wrongfully withheld his share of the legal fees on cases he referred to them.

In the present suit, Landau v. Shapiro, Uchman & Myers, 600510/07, Mr. Eisen claimed that Shapiro, Uchman & Meyers failed to compensate him for cases resolved both before and after his disbarment. "

We often remark that it is more difficult to settle a case with an uninsured attorney than with an insurance company, and that taking money from an attorney’s pocket is complicated indeed.  Read through this NJ appellate case, which documents the time and legal fees spent trying to wrangle the last $ 800 from a $ 50,000 settlement, and you will agree with the Appellate court that this was a "procedural morass."

"William Ainsworth sued Richard Abrahamsen in legal malpractice for paying all settlement proceeds from a civil action to Dr. Jon DeMatteis, one partner in a car wash business, and none to Ainsworth, the other partner. Abrahamsen previously represented DeMatteis and his wife, Karen, in several transactions prior to the purchase of the car wash with Ainsworth. Both DeMatteis and Ainsworth filed suit a year after to rescind the transaction with the prior owner based on claimed misrepresentation of revenue and a tainted well. The lawsuit generated complicated legal activity including a foreclosure action and was further complicated by divorce proceedings between DeMatteis and his wife, who was also Ainsworth’s sister.

The legal malpractice filed by Ainsworth against Abrahamsen was settled and the complaint dismissed in 2001. The stipulation of settlement required Abrahamsen to make an initial payment of $5,000 to Ainsworth followed by periodic payments starting on June 10, 2001, of $800 per month for forty-six months with a final payment of $700 on April 10, 2005. The stipulation further provided that $2500 of the settlement was to be paid to Karen DeMatteis for her legal fees in the matter. William Gold, Esq. represented Ainsworth, and his firm, Bendit Weinstock, P.A., served as escrow agent for all parties "

"The issue on appeal illustrates the procedural morass created by overlapping motions and cross-motions filed with respect to an amount constituting approximately one-tenth of the settlement. "

We ran across this doctor’s web site, and were intrigued by the assertion that medical malpractice insurance is doubling or tripling annually.  This assertion seems impossible.  Can it be?

"There is a legal malpractice crisis in California. Jury awards are skyrocketing, and and lawyers’ rates for malpractice insurance (which they are required to carry) are doubling and tripling almost annually.

The above paragraph is complete bullshit. The only way it comes close to the truth is if you replace the word "legal" with "medical" and "lawyers" with "doctors."

The doctor goes on to say that in California attorneys may be required to disclose whether they have malpractice insurance or not. 

Whether styled as "lost punitive damages". "punitive damages" or otherwise, there are no awards in legal malpractice when the attorney "failed" to obtain punitive damages in the underlying case.  Here is a breathless, somewhat confused account of a California case.

"A legal malpractice plaintiff could not avoid the retroactive application of caselaw limiting its recovery simply because its former counsel had failed to inform it about the ruling, the Fourth District Court of Appeal ruled Friday.

Div. One affirmed San Diego Superior Court Judge Jeffrey B. Barton’s grant of summary judgment against the ex-client of San Diego-based firm Procopio, Cory, Hargreaves & Savitch. In its legal malpractice suit, the former client, Expansion Pointe Properties Limited Partnership, alleged that Procopio’s negligent representation of it in a 1998 breach of contract action had resulted in the dismissal of its punitive damages claim.

Barton properly ruled that under the 2003 California Supreme Court decision of Ferguson v. Lieff, Cabraser, Heimann & Bernstein, 30 Cal.4th 1037, Pointe was barred from recovering lost punitive damages as compensatory damages in its malpractice action against the firm, Div. One said. "

Defendants blogging prior to and during their medical malpractice cases {Flea) and now, jurors blogging during a murder trial.  Attorneys need to be aware of, and ask questions about blogs.

So, it occurs to us:  will it ever be legal malpractice not to ask parties about blogs, not to question jurors about blogs, not to do discovery about blogs??

Keep tuned.

Privity is the relationship between professional and client.  Here in this case, Dinerstein v Anchin, Block & Anchin, LLP , 2007 NY Slip Op 05143 Decided on June 12, 2007 Appellate Division, First Department , the court discusses the outside limits of privity.  For these accountants, the court holds that it was reasonable to expect plaintiff to rely upon their accounting.  So…they are kept in the case.

"Although plaintiff, a stockholder and director of Medi-Bill, was not a party to the engagement letters by which Medi-Bill retained defendant to audit its financial statements, his relationship with defendant sufficiently approached privity to sustain his accounting malpractice claim as against defendant’s contention that the claim must fail for lack of contractual privity (see Credit Alliance Corp. v Arthur Anderson & Co., 65 NY2d 536 [1985]). Defendant admits it knew that its audit reports, which were addressed to "the Stockholders and Directors of Medi-Bill," were to be used by Medi-Bill’s stockholder and directors for the particular purpose of "managing and overseeing" Medi-Bill’s business, but denies knowing that plaintiff would be extending a full personal guaranty for Medi-Bill’s outstanding loan to the bank."

There are conflicting rules in the 4 departments of New York.  In legal malpractice, it is plaintiff’s obligation to demonstrate that a hypothetical judgment could be collected in a legal malpractice case in the 2d, 3d and 4th departments.  In the First Department, it is an affirmitive defense for defendant to prove.

Here is a procedural case  from the 4th Department on the issue. Williams v Kublick
2007 NY Slip Op 04932 Decided on June 8, 2007 Appellate Division, Fourth Department .

"We conclude that Supreme Court erred in granting defendants’ motion, and we therefore modify the order accordingly. In granting the motion, the court determined, inter alia, that defendants established as a matter of law that plaintiff is unable to prove that defendants’ [*2]negligence is a proximate cause of plaintiff’s damages (see Robbins v Harris Beach & Wilcox, 291 AD2d 797, 798). That was error."

"A necessary element of a cause of action for legal malpractice is the collectibility of the damages in the underlying action (see McKenna v Forsyth & Forsyth, 280 AD2d 79, 82-83, lv denied 96 NY2d 720; cf. Lindenman v Kreitzer, 7 AD3d 830, 835). Here, regardless of whether the value of the property was improperly considered by the experts, we conclude that the otherwise conflicting opinions of the experts concerning the value of the assets of the joint venture precluded the court from determining as a matter of law that defendants established that plaintiff is unable to prove that he could collect damages in the underlying lawsuits (see generally Simmons v State Farm Mut. Auto. Ins. Co., 16 AD3d 1117; Herzog v Schroeder, 9 AD3d 669, 670)."