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)."

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. . . . "