Our experience is that an Erbs palsy case is kind of hard to lose.  Most are settled, and the few that are not, generally have a good defense.  Here is a midwest juror’s take on a lost Erbs palsy case.

"The first notice got lost, so when I got the warning noting my failure to report to jury duty three months ago, I quickly called and rescheduled to report on Feb. 5. "A day off. Yeah!" I thought.
Lucky me, I had a low number. After being picked and kicked off the jury for a rape trial, I was called up again a second time for a malpractice lawsuit. I had to sit for two hours that day, and one hour the next before the entire 14-member jury was completed. It seemed so many people had an excuse. Who knows whether they were legitimate or not.

For nine days, the 14 of us, eight men and six women of all ages and walks of life, sat listening to opposing viewpoints. It was like I was back in biology class. I took notes to remember the key points of each witness.

Several OB/GYN doctors, a neurologist and an orthopedic surgeon taught us all about the techniques to deliver a child with a shoulder dystocia, and treatment of brachial plexus (Erb’s palsy) injuries.

Basically, two physicians were accused of using inappropriate procedures to deliver a child after he was delivered to the head and got stuck. Three others were being sued for failure to conduct a last-minute ultrasound to determine birth weight and offer the woman a C-section since, the plaintiff’s attorney argued, there were signs that she would deliver a large baby – he was 10 pounds, 6 ounces at birth – and since she had other risk factors for dystocia.

The methods and procedures were drilled into our heads, over and over again. The standard of care expected of doctors delivering a child in 1998 were drilled into our heads. We saw diagrams, were given demonstrations, and heard testimony from experts paid $5,000 a day to testify.

It was dry, technical stuff but a bit interesting. The Worcester Superior courtroom was cold, and steaming hot in our waiting room. At times, bored from hearing the same thing, I stared at the ceiling, counted the molding, and glanced at the portraits of judges on the walls.

The trial had its emotional parts, like when the mother, in the last stages of pregnancy with her third child, took the stand. The woman, a native of Ghana, seemed to have a hard time understanding some questions.

Something told me she didn’t like being in court. She told us how she has to brush her son’s teeth, tie his shoes, and feed him. She told us how her boy, now 8 and with limited use of his right arm, is often teased by schoolmates. She said since he was born, she could not hold a job since she had to spend so much time caring for him.

Early into her testimony, she closed her eyes, started sniffing and broke down in tears. It was real. I had to look away. I had to try my best to block out the emotions, to not let it cloud my opinion.

The medical records, common sense, my experiences raising a child with limited use of one hand, the fact that the woman was not diabetic and other inconsistencies in the case were the keys that persuaded me to side with the entire jury. In less than 20 minutes of deliberation, we decided that the five doctors were innocent of negligence.

I felt good that we did the right thing, and bad that one side had to lose, that the plaintiffs left the court probably feeling they were wronged once again. I agreed with one juror who wondered whether the now divorced couple’s situation would have turned out differently if they were wealthier, and could have afforded a private doctor.

As a juror, I didn’t see this as one side telling the truth and the other a lie, but figured it was all about perception. Two people could honestly look at the same event and disagree as to what happened. That’s what I learned during jury duty.

Here is a [subscription] case from the NYLJ.  Would the attorney, if permitted to act as a private DA be granted the same insulation from legal malpractice as a real DA?

"Matter of Sedore v. Epstein, 2672/06
Decided: January 23, 2007

DUTCHESS COUNTY
Supreme Court

James W. Hill, Sr. Asst. Public Defendant

Dutchess County Public Defender’s Office

Bridge Rahill Steller, Chief Asst. District Attorney

District Attorney’s Office of Dutchess County

Justice Brands
Click here to see Judicial Profile

DECISION, ORDER & JUDGEMENT

The petitioner challenges the delegation of prosecution of charges against her of harassment in the second degree by the District Attorney’s Office. The District Attorney’s Office points to People v. Soddano, 86 NY2d 727 [1995] for its holding that the District Attorney may delegate the prosecution of "petty crimes or offenses" to private attorneys. However, it was a State Trooper who did the prosecuting of a speeding violation of the Vehicle and Traffic Law, not an individual complainant’s private attorney’s prosecution of a harassment charge.

Petitioner is represented by the Public Defender, James Hill. Petitioner wanted Mr. Hill to represent her in her cross-complaint against the complainant, Jonathan Dallar. However, Mr. Hill is not authorized to do so but only to represent indigent defendants on criminal charges. The petitioner states she cannot afford to retain counsel and has been unable to find counsel to represent her pro bono. At an appearance before respondent, Harold D. Epstein, as Town Justice, the petitioner’s cross-complaint was dismissed.

These proceedings all arise following a board meeting held July 18, 2005 at the Locust Grove Condominium Complex in Fishkill, New York. An incident occurred involving the petitioner, Jonathan Dallar, and Heidi Braun, as a result of which the police were called. Petitioner was charged with two counts of harassment in the second degree based on the complaints by Mr. Dallar and Ms. Braun. Mr. Dallar was charged with one count of harassment in the second degree (dismissed as hereinabove referenced) based upon the complaint of the petitioner. According to Mr. Hill’s affirmation, the District Attorney’s Office advised at an appearance before Justice Epstein that due to the fact that the charges were all non-criminal violations not classified as domestic violence cases, per the policy of the Dutchess County District Attorney’s Office, it would not be prosecuted. The District Attorney’s Office authorized private counsel to prosecute the complaints on behalf of Mr. Dallar and Ms. Braun. All matters were set for trial on January 11, 2006. The matter could not be resolved, and was adjourned ultimately without date pending the determination of this petition. Petitioner objects to the attorneys, D. James O’Neil, and Adam Kirk, being designated by the Dutchess County District Attorney’s Office to prosecute the complaints of Mr. Dallar and Ms. Braun, respectively, on the basis that they are private practitioners involved in the general practice of law, who were retained by the complainant, who are not employees of the Dutchess County District Attorney, and are not duly appointed to represent the people of the State of New York. Petitioner’s counsel argues that County Law Section 700 (1) provides that the District Attorney shall conduct prosecutions for all crimes and offenses including harassment in the second degree. County Law Section 701 provides a mechanism for the appointment of a special prosecutor in certain circumstances which the petitioner and her counsel state are inapplicable here. Petitioner’s counsel points to People v. Zimmer, 51 NY2d 390 [1980] and the Code of Profession Responsibility, Ethical Cannon 7-13, providing that a District Attorney’s primary obligation is to the public and that the defendant as a member of the public, is entitled to a full measure of fairness such that his mission is not so much to convict as it is to achieve a just result. Counsel argues that this is not so of a private attorney retained to prosecute a criminal defendant. It is upon this that petitioner bases her argument that the absence of a "neutral prosecutor" in this case violates her due process rights.

In answer, the District Attorney’s Office states it has a long standing policy of not assigning Assistant District Attorneys to prosecute violations of local laws, considered "petty" offenses. In 1963, the New York Court of Appeals found that although County Law Section 700 (1) does not mandate the physical presence at every criminal hearing in the County of the District Attorney or his deputy, it means at least that the District Attorney must carry the responsibility and set up a system whereby he knows of all the criminal prosecutions in his county and either appears in person or by Assistant or consents to appearance on his behalf by other public officers or private attorneys. (Citing People v. Van Sickler, 13 NY2d 61). The petitioner argues that the District Attorney has not carried out this responsibility. Further, in the Van Sickler matter, the complaining witness prosecuted on her own behalf, and in the cases cited in that opinion, it was the Deputy Sheriff, Village Attorney, Town Attorney or Corporate Counsel, that prosecuted. At bar, there is no claim other than that the counsel are being paid by the complainants. If a defendant has no right to choose the prosecutor, why should a complainant? This court finds a great distinction between pro se representation, representation by a District Attorney or other public servant on behalf of the People and prosecution by a lawyer hired by the complainant versus an indigent defendant. That is not justice, but an abuse of the judicial system.

The District Attorney’s Office argues that petitioner is seeking prohibition to review a claim that she is about to be improperly tried on violation charges and therefore is raising an issue in a pending criminal case which may not be reviewed in an Article 78 proceeding, and argues that petitioner’s remedy if convicted would be to appeal. The District Attorney’s Office argues that a private attorney appointed by the District Attorney’s Office must abide by the same standards as a public prosecutor. This is impossible, at bar, where those prosecutors have been privately paid and retained by the complainants. Further, although petitioner alleges that her complaint was unfairly dismissed, the District Attorney’s Office offers no explanation for this nor as to how such a determination was made which is particularly troublesome given that all three complainants gave information and supporting depositions to the responding police at or about the same time, following the July 18, 2005 incident, and in the same form, and where the basis for such dismissal cannot be ascertained from the papers before this court.

As argued in the reply affirmation of James Hill, Esq., of the Dutchess County Public Defender’s Office, the petitioner does not seek mandamus or prohibition against the Dutchess County District Attorney. Counsel argues that allowing this proceeding to go forward would constitute an abuse of authority by the Town of Fishkill which is an issue properly before this court upon review in an Article 78 proceeding. This court agrees.

There is an inherent conflict and ethical dilemma for a privately retained attorney to prosecute on behalf of the District Attorney’s Office based upon which this court finds it would be an abuse of discretion and in excess of lawful procedure to allow the prosecution to go forward in such manner. Accordingly, it is hereby

ORDERED that the petition is granted to the extent that the respondent, Hon. Harold D. Epstein, as Town Justice of the Town of Fishkill, Dutchess County, New York, shall not proceed in the Matter of the People v. Sedore if prosecution is not by the District Attorney, or an Assistant District Attorney.

The foregoing constitutes the decision, order and judgment of this court.

Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof. "

In NJ, as in NY, a criminal defendant may not sue his attorney for legal malpractice absent a showing of "innocence", which in NY generally means a vacatur of the conviction or some post-conviction reversal.  Here is another NJ failure.

"Having fully considered these arguments, we affirm the Law Division’s order granting defendants summary judgment, substantially for the reasons set forth in Judge Mary C. Jacobson’s well-reasoned letter opinion dated August 31, 2004, including, but not limited to the judge’s reliance upon Alampi v. Russo, 345 N.J. Super. 360, 368 (App. Div. 2001) (denying recovery in a legal malpractice case arising out of a guilty plea that was not vacated or reversed in the criminal appellate process); see also Heck v. Humphrey, 512 U.S. 477, 486, 114 S. Ct. 2364, 2372, 129 L. Ed.2d 383, 393-94 (1994).

This NC case illustrates the problems with determining when a statute of limitations starts to run.  Is it on the date of  bad advice, the date of the settlement, the date of the release, or later?  The North Carolina Appellate Blog writes:

"COA: Despite Signed Certified Mail Return Receipt, Service Validity Issues
In In the Matter of K.N., the COA yesterday vacated an order terminating a mother’s parental rights. Importantly for a party bringing any type of suit, the COA did so despite a certified mail return receipt that had been signed, and seemingly without proof as to improper service.

Civil Procedure Rule 4 allows for a presumption of proper service where process was signed for by the named party’s agent or a person who resides in his or her home. Here, the COA found the presumption of proper service rebutted by: 1) the discrepancy between an address the mother gave the trial court and the address to which the certified mail was directed; 2) the mother’s failure to appear at the proceeding; and 3) the lack of information about who the person who signed for the certified mail was.

The COA essentially held that the mother’s procedural due process rights to notice and a hearing (here the hearing was only 20 mins. and the mother had not been represented by counsel) had been violated. The COA therefore vacated the order terminating the mother’s parental rights.

Notably, the Court suggested that "issues" as to valid service may suffice to invalidate an order. The COA did not indicate, for example, that evidence existed demonstrating that the person who had accepted service for the mother was unauthorized to do so. (Carpenter v. Agee suggests that that’s the kind of evidence needed to overcome the presumption of proper service resulting from a return receipt and affidavit of service. 171 N.C.App. 98, 613 S.E.2d 735 (2005)). Nor did the COA indicate (or the appellant affirmatively state in her brief) that the address to which the summons had been sent was actually wrong.

Will future defendants for whom someone else signs when process is delivered be able to overturn adverse judgments by providing discrepant addresses, failing to appear, and leaving unanswered whether the person who signed for service was actually unauthorized? Plaintiffs and petitioners may want to think about these risks in determining whether their proof of service is sufficient.

We are scratching our head over this case.  A 10-2 verdict?  Double Dipping?  Defendants who drop out of the story?

"In Baker Botts, et al. v. Kenneth F. Cailloux, as Next Friend of Kathleen C. Cailloux, the 4th Court of Appeals in San Antonio reversed a 2005 trial court judgment ordering Baker Botts and Wells Fargo Bank Texas N.A. to pay $71 million in damages to their former estate-planning client Kathleen C. Cailloux, a wealthy widow in Kerrville.

In an opinion written by Justice Catherine Stone, the three-justice panel reversed the judgment against Baker Botts and Wells Fargo on the ground that nothing in the record proved that Baker Botts or Wells Fargo breached a fiduciary duty that caused Cailloux to disclaim her right to the estate of her late husband, Floyd Cailloux. The appeals court rendered a take-nothing judgment in favor of the firm and the bank.

In 1995, a jury in 198th District Judge Emil Karl Prohl’s court in Kerrville had found that Kathleen Cailloux would have received $65.5 million in trust if she had not disclaimed her right to Floyd’s estate. However, the jury also found the woman had no lost-income damages or economic-loss damages as a result of executing the disclaimer. Prohl ordered Baker Botts and Wells Fargo, the executor of Floyd’s estate, to pay $71 million in damages to fund a trust for Kathleen Cailloux.

However, in its opinion, the 4th Court found Prohl abused his discretion by creating an "equitable trust" to hold the millions of dollars he ordered Baker Botts and Wells Fargo to pay.

"We are further troubled by the "equitable trust’ fashioned by the trial court because it essentially places Kathleen in a better position than she previously occupied," Stone wrote in the 11-page opinion, in which Chief Justice Alma Lopez and Justice Karen Angelini joined.

The litigation stems from estate planning Baker Botts did for Cailloux and her husband, a founder of Keystone International. According to a lawyer for Kathleen and for her son Kenneth Cailloux, Austin’s Richard Harrison, Kathleen and Floyd were worth about $130 million. Kenneth is his mother’s legal guardian, because Kathleen is incapacitated by Alzheimer’s disease.

The plaintiffs alleged in the sixth amended petition that the defendants conspired to convince her, right after Floyd Cailloux’s death in 1997, to disclaim her rights to her husband’s estate and to transfer more than $60 million to the Cailloux Foundation — ostensibly to save more than $30 million in taxes — without informing her of other estate-planning options.

According to the 4th Court’s opinion, more than six years after Kathleen disclaimed her husband’s estate, her son Kenneth, as her next friend, sued Baker Botts and Wells Fargo for, among other things, breach of fiduciary duty relative to Kathleen’s execution of the disclaimer.

The defendants denied all of the allegations.

In February 2005, a jury in Prohl’s court, by a 10-2 vote, found Baker Botts breached its fiduciary duty to Kathleen Cailloux by failing to disclose "all important information" when doing estate-planning work for Cailloux following the death of her husband in January 1997. The jury, however, found Baker Botts did not breach its fiduciary duty in three other areas: by failing to act with the utmost loyalty toward Cailloux, by participating in transactions that were not fair and equitable to Cailloux, or by failing to act in the utmost good faith and to exercise the most scrupulous honesty toward the widow.

The jury also found Wells Fargo breached its fiduciary duty to Kathleen Cailloux and found that former bank official William Goertz, who also served on the board of the Floyd A. Cailloux and Kathleen C. Cailloux Foundation, individually participated in that breach. Goertz settled before trial.

The jury assessed 25 percent of the responsibility for the injury to Cailloux, another 25 percent against Baker Botts and 25 percent each against Wells Fargo and Goertz.

For the breaches of fiduciary duty, the jury found Kathleen Cailloux should be compensated with $65.5 million — the value she would have received in trust had she not agreed to disclaim her rights to the money.

Prohl signed a judgment in April 2005 ordering Baker Botts and Wells Fargo to pay $71 million into a new trust, the Kathleen C. Cailloux Equitable Trust. He ruled Kathleen Cailloux can use the interest from the trust and can withdraw up to 5 percent of the principal yearly.

While the jury returned a $65.5 million verdict, Prohl added $5.6 million in prejudgment interest, plus court costs and postjudgment interest.

Baker Botts and Wells Fargo appealed the judgment, claiming, among other things, that there was insufficient evidence to support the jury’s findings that their alleged breaches of fiduciary duty proximately caused Kathleen Cailloux damage, and the trial court had no power to create an equitable trust.

Ken Cailloux, Kathleen Cailloux’s son, also appealed the judgment, alleging there was insufficient evidence to support the jury’s finding that his mother is entitled to nothing for lost income.

The 4th Court panel reversed the trial court’s judgment to the extent that it imposes a $65.5 million equitable trust on Baker Botts and Wells Fargo, and rendered a take-nothing judgment in their favor, but it affirmed the trial court’s judgment in connection with Kathleen Cailloux’s claim for lost income.

Bernstein v. State of New York, 06 Civ. 5681
Decided: February 6, 2007

"Disciplinary proceedings were instituted against Bernstein by the Grievance Committee for the Second and Eleventh Judicial Districts. The petition contained three charges of professional misconduct, including a charge that Bernstein "converted clients [sic] funds that were entrusted to him as a fiduciary, in violation of Code of Professional Responsibility DR 9-102(a) and DR 1-102 (a)(3) and (7) (22 NYCRR 1200.46 [a]; 1200.3 [a] , )." The Appellate Division, Second Department, ordered that the matter be referred to a Special Referee for a hearing and report. Following a hearing, the Special Referee sustained all of the charges. The Grievance Committee then moved to confirm the Special Referee’s Report, a motion that Bernstein opposed. In its decision confirming the Special Referee’s Report, the Second Department made the following findings:

On or about July 1, 1999, Dr. Alexander Hollander, a dentist, was arrested pursuant to a 36-count criminal indictment charging him with grand larceny in the third degree (two counts), scheme to defraud in the first degree, offering a false instrument for filing in the first degree (27 counts), falsifying business records in the first degree (three counts), and perjury in the first degree (three counts). The respondent [Bernstein] represented Dr. Hollander at his arraignment, and bail was set at $50,000. Also on July 1, 1999, the respondent received $4,400 in cash on behalf of Dr. Hollander for bail. The respondent failed to apply those funds towards Dr. Hollander’s bail and failed to return the money to Dr. Hollander or his representative upon demand. Instead, he converted the $4,400 to his own use and benefit.

The Second Department sustained the charge of conversion and ordered that "pursuant to Judiciary Law §90, effective immediately, the respondent, Joshua Bernstein, is disbarred, and his name is stricken from the roll of attorneys."

The Court of Appeals dismissed Bernstein’s appeal of his disbarment. Bernstein then made "a combined motion in the Appellate Division for reargument and, in the event of affirmance, for leave to appeal. Same were summarily denied, without Opinion." Bernstein also made "an appeal ‘as of right’ to the Court of Appeals" which was "dismissed on the basis that no criterium [sic] for an ‘as of right’ appeal was met."

In his opposition to the motion to confirm the Referee’s Report, Bernstein argued that he had a right to a retaining lien on the $4,400 that was to be used for Dr. Hollander’s bail "pursuant to an express oral retainer agreement made in open Court between the Plaintiff and said client at the latter’s arraignment therein, in the presence of the prosecutor thereon, upon which retainer agreement, with respect to fees to be paid to the Plaintiff, the client defaulted." Bernstein also "brought to the Appellate Division’s attention the fact that a provision in the Lawyer’s Code of Professional Responsibility explicitly provides that it is NOT a violation thereof for an attorney to act pursuant to a ‘recognized lien’." However, the Second Department concluded that "[t]he respondent presented no mitigating circumstances at the hearing," and that "the fact remains that [Bernstein] allowed his client to remain in prison while he converted to his own use money that was supposed to be used for bail."

Bernstein’s allegations of due process violations, and his position that the Rooker-Feldman doctrine does not bar this Court’s exercise of subject matter jurisdiction, are both based on his conclusion that the New York State court proceedings did not constitute "judicial proceedings" and, as such, could neither legally deprive him of his property by disbarment, nor present an obstacle to this Court’s exercise of jurisdiction. "

He tried in Supreme Court, at the Appellate Division level and now in Federal Court.  Attorney is sanctioned losing at all levels.

"Plaintiff is suing the Appellate Division of the Supreme Court, Second Judicial Department ("Appellate Division"); Appellate Division justices Gail Prudenti, David Ritter, Frank Santucci, and Robert Schmidt, in their individual capacities; and, finally, also in his individual capacity, James E. Pelzer, the Clerk of the Appellate Division.

Plaintiff was admitted to practice law before the courts of the State of New York on December 20, 1950, and was subsequently admitted to practice before the United States District Courts of the Southern and Eastern Districts of New York.

This case arises from two court sanctions against Plaintiff which, coupled with several other disciplinary violations, resulted in the suspension of his license to practice law. First, on September 14, 1999, the Westchester County Supreme Court issued a sanction order directing Plaintiff to pay $4,500 by October 1, 1999 to the Lawyers’ Fund for Client Protection for the State of New York for violating pretrial discovery orders and engaging in frivolous motion practice. Caiola v. AllCity Ins. Co., Nos. 1333/96, 8095/99, 2002 WL 1448855, *1 (N.Y. Sup. June 10, 2002). Second, on July 10, 2001, the Westchester Supreme Court directed Plaintiff to pay $3,500 by July 30, 2001 to the Client Protection Fund for once more engaging in frivolous motion practice. Id. at *2.

Plaintiff did not comply with these sanctions, and the trial court found him guilty of criminal contempt. Id. at *19-20. This order subsequently was overturned by the Appellate Division because Plaintiff was not personally served with notice of the proceeding. Caiola v. Allcity Ins. Co., 305 A.D. 2d 350, 351, 758 N.Y.S. 2d 683, 685 (App. Div. 2d Dep’t 2003). On July 22, 2003, the Westchester Supreme Court judge denied Plaintiff’s motion to dismiss the criminal contempt proceeding against him. Caiola v. Allcity Ins. Co., 7 A.D. 3d 557, 557, 776 N.Y.S. 2d 504, 2004 N.Y. Slip Op. 03756 (App. Div. 2d Dep’t 2004). The Appellate Division affirmed, holding that his argument that the Westchester Supreme Court "did not have the power to commence the criminal contempt proceeding against him sua sponte" was "without merit." Id. "

Here is a story about a Physician with 110 medical malpractice cases pending against him.  He just lost his third legal malpractice case against his attorneys

"The U.S. District Court in Charleston dismissed two lawsuits on Tuesday that Dr. John A. King, whose name is now Christopher Wallace Martin, filed against lawyers who represented him. The court previously dismissed a third lawsuit King had filed.

Today, King has 110 pending medical malpractice lawsuits filed against him in Putnam County Circuit Court related to surgeries he performed at Putnam General Hospital in Hurricane.

Last fall, King generated two more medical malpractice suits while treating patients at clinics near Birmingham, Ala. King filed all three lawsuits against his former West Virginia lawyers on Feb. 20, 2006, seeking “compensatory damages for legal malpractice.” At the time, King said he was living in Florida.

Each suit alleges the West Virginia lawyers King hired after Putnam General Hospital suspended his privileges on June 5, 2003, did not represent him effectively. "