Finally, plaintiff contends that the Orloff court erred in concluding that UNO’s operation was illegal. He argues that “[t]he court below assumed UNO was illegal, as the trial court in Orloff offhandedly so concluded[.]” According to plaintiff, “the defendants failed to disabuse [the trial court in the Orloff litigation] of the notion that UNO was `illegal,’ and to advance the conclusions to the contrary of international compliance experts, Graves, Erb and McDonald.” We disagree.
First, the facts of this case fall squarely within the invited-error doctrine. “The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.” Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996). The doctrine “is intended to `prevent [a party] from manipulating the system’ and will apply `when a [party] in some way has led the court into error’ while pursuing a tactical advantage that does not work as planned.” State v. Williams, 219 N.J. 89, 100 (2014) (quoting State v. A.R., 213 N.J. 542, 561-62 (2013)). A party “cannot beseech and request the trial court to take a certain course of action, … then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.” State v. Pontery, 19 N.J. 457, 471 (1955).
]]>If you think you may have a claim, talk to a malpractice attorney as soon as possible. Waiting too long only benefits the lawyer defendant.
Ed Clinton, Jr.
]]>If you have a question about a legal malpractice case, do not hesitate to contact us.
Ed Clinton, Jr.
]]>First, a general discussion of the case within a case requirement.
The “case within a case” requirement, also known as the “trial-within-a-trial” or “suit-within-a-suit,” is a fundamental element in a legal malpractice case. Legal malpractice occurs when an attorney fails to provide competent and diligent representation to a client, and this failure results in harm to the client. To successfully bring a legal malpractice claim, the plaintiff (the former client) generally needs to demonstrate the following elements:
]]>Legal malpractice refers to a situation in which an attorney fails to perform his duties to a client in a competent and ethical manner, resulting in harm or financial loss to the client. This harm can be due to the lawyer’s negligence, breach of fiduciary duty, or a violation of the standard of care expected from legal professionals. Here’s an overview of key aspects of legal malpractice:
1. Negligence or Breach of Duty: Legal malpractice typically involves an attorney’s failure to meet the standard of care expected in their legal profession. This may include errors in legal strategy, missed deadlines, failure to communicate with the client, or inadequate legal research.
]]>USA Lending provided an affidavit from its CEO that it instructed the law firm to seek damages and an affidavit from an expert witness, a former judge, who opinion that the request for damages would have been granted. A second expert opinion that the judgment could have been collected. The Supreme Court held that the affidavits of USA Lending created a question of fact that could not be resolved on a motion to dismiss and held that the case would be remanded for trial. The court stated:
]]>The motion to dismiss stage is not a battle of evidence; it is the clearing of an initial hurdle.[39] The Act does not select for plaintiffs certain to succeed; it screens out plaintiffs certain to fail—those who cannot support their claims with clear and specific evidence.[40] Because USA Lending adduced prima facie evidence to support its claim for legal malpractice, the court of appeals erred in ordering the case dismissed. Accordingly, we reverse the judgment of the court of appeals and remand the case to the trial court.
Plaintiff hired a lawyer to assist him in dividing a parcel of property he owned with a co-tenant. The court divided the property but because plaintiff failed to introduce evidence that he had paid the mortgage, the court awarded him less than he should have received. The amount plaintiff had paid towards the mortgage was $39,339.88. (Apparently the co-tenant had not paid any money toward the mortgage). Plaintiff sued his former lawyer for that amount and the trial court, after a trial, awarded him $39,339.88 in damages. The court entered judgment against the lawyer and the plaintiff appealed arguing that he was entitled to punitive damages.
The appellate court rejected the appeal and affirmed the judgment. There was no allegation of fraud. This was a simple oversight by the lawyer and punitive damages were not available. Illinois does not allow the recovery of punitive damages in legal malpractice cases.
]]>The underlying case was a wrongful death case against a drug treatment facility. The alleged legal malpractice was the alleged failure to serve the complaint in the underlying wrongful death case. However, plaintiff failed to include sufficient allegations to show that she would have won the underlying case against the treatment facility.
The key discussion in the opinion appears here:
]]>5/13-214.3(d) provides that: When the injury caused by the act or omission does not occur until the death of the person for whom the professional services were rendered, the action may be commenced within 2 years after the date of the person’s death unless letters of office are issued or the person’s will is admitted to probate within that 2 year period, in which case the action must be commenced within the time for filing claims against the estate or a petition contesting the validity of the will of the deceased person, whichever is later, as provided in the Probate Act of 1975. An action may not be commenced in any event more than 6 years after the date the professional services were performed.
For this reason, in inheritance disputes lawyers will often open an estate and start the claims period running. That leaves the aggrieved party six months to file any claims against the lawyers who drafted the estate plan. Dalessandro v. Quinn-Dalessandro, 2023 IL App (1st) 211119 is one such case. The adult children of the decedent filed a claim against their step-mother within the six month period, but they did not file against the lawyers who drafted the estate planning documents that disinherited them until after the six month period had expired. The provision in the statute is a trap for the unwary practitioner who incorrectly believes he has two years to file a malpractice lawsuit. Nope. He only has six months to file such a claim.
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