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.

Our Outside Counsel column in today’s NYLJ is on "The Defense of Collectibility in Legal Malpractice"

Here is a portion.  For the entire article, see today’s NYLJ:

The Defense of ‘Collectibility’ in Legal Malpractice

By Andrew Lavoott Bluestone
New York Law Journal
April 20, 2007

One of the many wrinkles in legal malpractice, which in some ways is a body of law unto itself, is the defense of collectibilty.

Simply put, it is the defense that even if successful, plaintiff might not have been able to collect a hypothetical judgment from the defendant. In no other field of law is plaintiff required to prove that collection can be had at the end of litigation. Pyrrhic victories are elsewhere permitted, and plaintiffs often face uncertainty of reward in other fields of law.

There is a split between departments in New York over who bears the burden of proving collectibilty or noncollectibilty. This article will describe the issue and the split.

In order to establish a prima facie case of legal malpractice, it must be shown that the defendant attorney deviated from good and accepted practice ["failed to exercise the degree of skill commonly exercised by an ordinary member of the legal community"] and that plaintiff-client sustained actual, real, measurable damages as a proximate result of the deviations by the defendant attorney.

Hinshaw writes today about a federal worker’s compensation attorney fee issue which applies to all attorney fee disputes:  block billing and 1/4 hour minimum billing, both of which led to a reduction by the court:

"Brief Summary
The Ninth Circuit reviewed the guidelines applicable to court-awarded attorney fees in ERISA litigation. Among other things, the court upheld a 20 percent reduction based on the attorney’s block billing and a 20 percent reduction based on the attorney’s use of quarter-hour minimum billing segments. On the other hand, the court held that it is appropriate for a fee award to include consideration of the attorney’s delay in receipt of fees. More generally, the court held that the appropriate hourly rate must be one that is charged, on an hourly basis, by equivalently skilled practitioners and that the time spent on various litigation-related activities must not be excessive. "

Not legal malpractice, but about legal fees.

Associate intercepts calls, moves clients around, takes away business, indicted, convicted, jailed.

Now, the litigation is about lost clients.  Here is the Appellate Decision.

the NYLJ today reports:

"The New York State Commission on Judicial Conduct voted Tuesday to curb the responsibilities of its chairman, celebrity divorce lawyer Raoul Felder.

The vote came in the wake of Friday’s "no confidence" vote in Felder because of what the commission described as the "racial, ethnic and religious invective" in "Schmucks!" a book he co-wrote with comic Jackie Mason.

Felder did not attend the meeting. The resolution, which was adopted without dissent, withdrew from Felder the authority to serve as the body’s spokesman.

In another move aimed at Felder, the commission said it is changing its prior practice of allowing any of its 11 members to sign non-public letters of caution issued to judges.

"Until further notice," the resolution states, all of the commissioners, "other than the chair," shall have the authority to sign the letters.

In an interview Wednesday, Felder disputed the commission’s factual premise, saying the past practice had been for only the commissioner to sign the letters. The body was acting, he said, out of a "hysterical" concern that he would refuse to sign the letters.

Felder agreed that the commission’s administrator, Robert Tembeckjian, should alone handle dealings with the media, and noted that he had deferred to Tembeckjian since becoming chairman last June.

Tembeckjian said Wednesday that the commission continues to examine whether it has the authority to remove Felder as chairman.

Cassandra Crottyreports in the Illinois Legal Malpractice Blog that:

"Insurer Able To Proceed With Legal Malpratice Lawsuit
An Illinois appellate court recently reversed a circuit court entry of summary judgment in favor of a lawyer and his Park Ridge law firm, holding that an insurance company can proceed with its legal malpractice lawsuit against the law firm that represented the insurer in connection with a coverage dispute. The appellate court found that the "defendants failed to meet their burden of production on their motion for summary judgment because they did not present evidence that, left unrebutted, would entitle them to judgment as a matter of law or demonstrate that the [insurer] would be unable to prove any element of its cause of action."

The case-within-a case stemmed from a car accident that occurred in 1991. The insurer, Universal Underwriters Insurance Co., had issued an insurance policy to Carriage Chevrolet Inc., a car dealership in St. Louis. Michele Heflin, a Carriage Chevrolet salesperson, was driving a car owned by the dealership when she pulled over to help a driver with a disabled vehicle on the side of the road. While Heflin was rendering assistance, another car struck and injured her. Heflin filed suit against the driver and received $25,000 – the limit of the driver’s policy. Heflin then turned to the Universal umbrella policy issued to her employer, Carriage Chevrolet, arguing that it provided under-insured motorist coverage. When Universal denied her claim, Heflin then filed a declaratory judgment suit asking the court to determine and adjudicate the rights and liabilities of the parties with respect to the umbrella policy. Universal then hired the defendants in this action, Jay Judge and his law firm, Judge & James, to defend it in the dec action. 1n 2001, after litigating the action (in court and in arbitration), the trial court entered an order requiring Universal to pay $2,975,000 plus interest, and two weeks later, Universal, through new counsel, settled Heflin’s claim for $3 million.

Universal then filed this legal malpractice suit against it’s former lawyers. In its amended complaint, Universal contended that the lawyers owed it a duty of care, which included the obligation to take timely appeals and to timely seek other remedies in the event of adverse and erroneous judgments. Additionally, Universal contended that the lawyers breached their duties by failing to raise the $1 million umbrella policy limit as a defense or limitation on damages in the arbitration proceeding"