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North Carolina Finds Negligence Where Lawyer Fails to Move For A Directed Verdict

Legal Malpractice Case From North Carolina

Royster v. McNamara, 723 SE 2d 122 – NC: Court of Appeals 2012 – Google Scholar.

This is a legal malpractice case arising out of a litigation matter.  The plaintiff, Royster, was a defendant in the underlying case, a fraud case.

Legal malpractice in the litigation context is often difficult to decipher.  The court deciding the legal malpractice case must determine (a) if the lawyer was negligent; and (b) if the negligence caused the bad outcome.  That means sorting out what happened in the underlying case – whether there was an error and whether the error caused the harm.

In the underlying case, Royster and other defendants were sued for fraud.  The fraud related to the sale of a used Saturn automobile.  The plaintiff claimed that the defendants had engaged in deceptive practices by replacing certain parts of the car, with parts from another vehicle.

Royster’s defense was that he had no involvement with the sale and had no contact with the plaintiff.

In such a situation, the typical practice would be to wait until the plaintiff finished her case and then move for a directed verdict.  The directed verdict motion would be argued before the judge.  The lawyer would argue that there was no evidence against his client and that there was no basis for the jury to award a verdict against him.

Royster’s attorney did not move for a directed verdict at the close of the plaintiff’s case.  The jury then returned a verdict against Royster and the other defendants.  Royster sued for legal malpractice, but the trial court granted summary judgment for the defendant.

Royster appealed and the North Carolina Court of Appeals ruled in his favor.

The Court explains: “At the hearing on Defendant’s summary judgment motion, Plaintiff submitted the transcript of the underlying trial for the trial court’s consideration. A careful reading of the transcript indicates that Defendant failed to move for a directed verdict on Plaintiff’s behalf. In addition, the investigating officer testified that he had not had “any dealings” with Plaintiff, that he did not “know of anything” that Plaintiff had done in connection with the sale or purchase of Ms. Greene’s vehicle, that Plaintiff’s name did not appear on any of the documentation concerning Ms. Greene’s vehicle, that Plaintiff had nothing to do with the sale of Ms. Greene’s vehicle, and that he did not have any information suggesting that Plaintiff had any personal involvement in the sale of two other vehicles which were also under investigation. As a result, we hold that the record reveals the presence of a genuine issue of material fact concerning the extent to which Plaintiff is entitled to recover damages from Defendant based upon his failure to seek a directed verdict concerning the fraud claim that Ms. Greene had asserted against Plaintiff, so that the trial court erred by granting summary judgment in Defendant’s favor.”

Comment: this is a rare case where the litigation error was made by a defense attorney.  The case is instructive because it lays out in some detail how Royster proved that his lawyer had erred.

Edward X. Clinton, Jr.