The City of New York, the Health & Hosptials Corporation, individual hospitals.  The ownership and place of service of a summons and complaint, as well as a notice of medical malpractice have long been a trap for the unwary.

NOTE:  The New York Law Journal reports that "starting April 30, 2007 service of process and notice of claims must be filed in Room 650 at 346 Broadway at the new HHC Office of Legal Affairs Medical Litigation Unit."

Don’t serve the notice or the summons in the wrong place!

Here is a Florida case whcih discusses the obligation between attorneys on a fee split, and the difference between an attorney split and a fee owed by the client.  Here, attorney 1 referred the case to attorney 2, and was then terminated.  Result?  Attorney 2 owes a specific percentage to Attorney 1.

"An appellate court has ruled that two Miami lawyers should split a contingency fee award based on their written fee agreement — even though one lawyer was fired by the client on the advice of the other lawyer before the case was won.

A 4th District Court of Appeal panel unanimously ruled April 2 that Scott Jay, who referred a legal malpractice case to Warren Trazenfeld, is entitled to 25 percent of the $218,000 fee Trazenfeld won as part of a $485,000 judgment in Broward Circuit Court in 2003.

Trazenfeld had argued that Jay was not entitled to any fees because he thought that when his client terminated Jay, the fee agreement was voided. Jay’s only claim, he said, was based on quantum meruit, meaning that payment should be based on the reasonable value of services provided. But Jay was not even entitled to that, Trazenfeld said, because Jay had not kept complete time records of his work.

Broward Circuit Judge Robert Lance Andrews agreed with Trazenfeld. But the 4th DCA panel rejected that argument. First, it said case precedent holds that the quantum meruit rule was inapplicable because it applies to the client’s obligation, not to co-counsel’s obligation.

"The written fee agreement provides that co-counsel are jointly owed the fee," the panel wrote. "And because the contract did not specify otherwise, the division of the fee would ordinarily be equal."

The panel also rejected Trazenfeld’s argument about the time records.

"Here, where the fee agreement effectually makes the division, it would serve no purpose to keep such records to establish the share of each," the panel wrote. "In this kind of joint representation, counsel may recognize from the beginning of their undertaking that the amount of time spent by either will not control the division. … As long as such a division is not unreasonable and does not violate the regulatory rules of the Florida Bar, there is no good reason why courts should resort to time records to divide the fee."

Read this:

"After a Preston Hollow, Texas, neighbor complained that his son’s pet donkey was a loud nuisance, Dallas lawyer C. Gregory Shamoun brought the donkey, known as Buddy, into a courtroom on Wednesday to attempt to prove to a jury that the burro’s not. When the suit went to trial on Wednesday, Buddy was the first witness.

Although Buddy clearly couldn’t testify, Shamoun says he wanted the jury to see that Buddy is his 7-year-old son’s well-behaved pet.

Cantrell’s attorney, Chandler, confirms that Buddy wasn’t noisy in the courtroom.

"The donkey did behave. It was a nice donkey, as donkeys go, I suppose," says Chandler, of Chandler & Chandler in Dallas.

Seider says he allowed Buddy to appear in court as a witness, because Cantrell had pleaded in his counterclaim that Buddy was a nuisance.

"He behaved perfectly. They led him in, and the jury observed him for a minute or two, and then he went peaceably away," Seider says, adding that Shamoun assured him that if Buddy made a mess in the courtroom, he would clean it up. "

Here is a legal malpractice case in which it is alleged that defendant attorney spoke with the upcoming judge at at coctail party, and was told that the judge would let plaintiff have only 5 days of trial.  As a result, it is alleged that plaintiff settled the case rather than try it in so short a period?

Unthinkable?  "Four years after Cox Smith Matthews settled a suit on behalf of plaintiff Total Clean LLC for $4.5 million, the firm is defending itself in a case brought by its former client. Total Clean, a family business established to operate a truck wash, has sued the San Antonio-based firm and one of its shareholders in Bexar County, Texas’ 37th District Court. At a mediation held five days before the trial, McElhaney allegedly told Nami family members "that they had to settle the case because they could not effectively go to trial with the five-day trial limitation," according to the petition. "Believing McElhaney that the federal judge would permit Total Clean to put on only a small part of its case, and therefore essentially prevent it from effectively putting on its case, the family agreed to settle. … "

"We are alleging that the lawyer [McElhaney] told the client that the judge said he would only permit a very short trial and that is why [the client] settled," says Smoot. "My client is adamant. He [Bobby Nami] would not have settled except for the fact that he was told he would only have a five-day trial."

If you think that this is a unique case, take a look at Totura v. Sullivan Papain Block now before the AD2, AD No. 2006-3886  fully briefed.  The allegation there is that the attorney told his client the judge spoke at a bar meeting and told him to settle or face dismissal at trial.

This case falls in the "just can”t explain it" category.

Attorney represents plaintiff and obviously had problems.  Client sues attorney in legal malpractice, and attorney defaults on trial.  He then defaults on inquest of which he had notice.  He then fails to do anything about a settled judgment.

Only after entry of judgment does he try to vacate.  His efforts unsuccesful.  "After the defendant failed to appear on the scheduled trial date, he was notified that the case would be placed on the calendar one week later for an inquest on damages. Moreover, after the defendant’s efforts to vacate his defaults proved unsuccessful, he was given notice, on or about April 13, 2004, that judgment would be entered against him on or after May 1, 2004. Under these circumstances, the defendant has no grounds to complain of lack of notice pursuant to CPLR 3215(g)(1).

Finally, the court properly determined that the judgment was not entered in violation of 22 NYCRR 202.48(a) (see Funk v Barry, 89 NY2d 364). "

Here is a reported case in which the case against defendant was dismissed after openings.  This occurrence is rare, rare, rare.  Worse yet, plaintiff suffered complete dismissal at the end of plaintiff’s case.  What was counsel doing and thinking??

"Plaintiff’s opening statement failed to make out a prima facie case of negligence against the driver of the car involved in the alleged accident. Therefore, there could have been no finding of liability against the car’s owner, defendant Diaz, since any liability on his part would have been derivative of the driver’s (Vehicle and Traffic Law § 388[1]). Accordingly, the court properly dismissed the action as against Diaz immediately after opening statements (see Giroux v Snedecor, 178 AD2d 802 [1991]).

The complaint against the City was properly dismissed at the close of evidence. Even if the City created the bump to which plaintiff attributes the accident in which he was injured, there was no competent evidence that the bump was hazardous at the time of its creation (see Bielecki v City of New York, 14 AD3d 301 [2005]). The trial court properly precluded the testimony of plaintiff’s expert, since there was no showing that the proposed testimony would clarify an issue [*2]involving professional or technical knowledge beyond the ken of the typical juror (see GMAC Commercial Credit v Mitchell-B.J. Ltd., 272 AD2d 51 [2000]).

Plaintiff in this personal injury action litigated it correctly right up to trial.  However, it then fell completely apart.  Trial attorney hired about a week prior to trial, and was not exactly ready.  Request for an adjournment denied, case dismissed.  The decision places the fault squarely with plaintiff’s attorney.  Is this Legal Malpractice?

"Whether to grant an adjournment is a matter within the discretion of the trial court (see Matter of Steven B., 6 NY3d 888, 889 [2006]). Although there is no indication of delay by plaintiff in the litigation of this matter until the day of trial, it remains that neither plaintiff’s counsel of record nor plaintiff’s newly retained trial counsel provided the court or the defense with advance notice of plaintiff’s purported inability to proceed to trial on the appointed date, and instead, submitted, on the day of the scheduled trial, an affidavit of engagement that admittedly contained misstatements of fact. Not only did plaintiff’s counsel of record act contrary to the mandate of 22 NYCRR § 202.31 by retaining outside trial counsel fewer than 10 days before the trial was to begin, but the attorney retained was clearly not prepared to try the matter on the scheduled date. In view of counsel’s noncompliance with 22 NYCRR § 202.31 and the trial attorney’s false representations to the court, we cannot say that the trial court improvidently exercised its discretion in denying plaintiff an adjournment and, when plaintiff refused to proceed, dismissing the action for failure to prosecute"

This case illustrates two things:  real estate leases in commercial transactions can have great consequences, and, a contract cause of action for legal malpractice can succeed hugely.

"A lawyer who is now with Montgomery McCracken Walker & Rhoads was hit with a legal malpractice verdict of more than $6.6 million in a suit brought against her and her former firm by a corporate real estate client that said her poor drafting of a lease agreement sparked a lawsuit in California that cost $4 million to settle.

In his verdict from a nonjury trial, Judge Mark I. Bernstein of Philadelphia’s Commerce Court ruled that attorney Karen Senser and Segre & Senser must reimburse Crown Cork & Seal the $4 million it paid to settle the California suit, as well as more than $972,000 in attorney fees and $1.6 million in interest.

Bernstein’s one-page ruling included no discussion of the case, but simply announced his verdict and damages awards totaling $6,643,054.

Crown had initially filed suit against both Senser and her partner, Nina Segre, as well as Montgomery McCracken. But in pretrial rulings, 1st Judicial District President Judge C. Darnell Jones II dismissed Segre from the suit and ruled that all claims against Montgomery McCracken were barred on statute of limitations grounds. Jones also dismissed all claims of breach of fiduciary duty and negligence-based malpractice claims.

As a result, the case went to trial only on a contract-based malpractice claim against Senser and her former firm.