Published on:

By

Whether or not a case is barred by the statute of limitations in the legal malpractice context is not a matter of science, but rather of art. Indeed, you may think the case you filed was timely and a thoughtful defense lawyer will use the facts to creatively argue that your client should have “discovered” the injury and the malpractice long before you think they might have discovered the injury. Often the statute of limitations is the only defense the lawyer has. If that defense fails, there is no defense to the case.

The Court of Appeals of Utah recently decided a case where the negligence occurred long before suit was filed, but the plaintiff successfully argued that the lawyer fraudulently concealed the cause of action. In other words, plaintiff claimed that the lawyer was negligent and then hid the evidence of the negligence so the statute of limitations would expire. The case is First Interstate Financial LLC v. Scott Savage and Savage Yeats and Waldron, P.C., No. 20180660-CA. The Plaintiff alleged that it lost a jury trial due to the negligence of the lawyer defendant. The problem for plaintiff was that the verdict occurred in 2010, which would render the case time-barred by the statute of limitations.

The court set for the pertinent facts and the statute of limitations issue as follows:

Continue reading →
Published on:

By

The opinion in Lloyd’s Syndicate 2987 v. Furman, Kornfeld & Brennan, LLP, 2020 NY Slip Op 02365 is pithy but worth considering.  Apparently the law firm advised an insurance company that it could deny coverage to a policyholder. That decision proved to be in error and the insurance company sued the law firm. Result: case dismissed.

The pertinent part of this pithy opinion is quoted here:

In this legal malpractice action, plaintiffs allege that they sustained damages when they relied on defendants’ negligent advice that they could disclaim coverage of their insured in an underlying malpractice action. In support of their motion to dismiss, defendants properly relied on documentary evidence, including the challenged disclaimer letter and the relevant policy, since their authenticity is undisputed and their contents are “essentially undeniable” (see DSA Realty Servs., LLC v Marcus & Millichap Real Estate Inc. Servs. of N.Y., Inc., 128 AD3d 587 [1st Dept 2015]; see also Kaplan v Conway & Conway, 173 AD3d 452, 453 [1st Dept 2019]; CPLR 3211[a][1]). The disclaimer letter sets forth an analysis of plaintiffs’ right to refuse coverage to their insured on two independent bases. Plaintiffs’ failure to allege with specificity or argue that one of the two bases for defendants’ advice was incorrect, requires dismissal of this legal malpractice action.

Continue reading →
Published on:

By

This is another very important and recurring issue in the legal malpractice field. Most states have a rule that provides that a criminal defendant cannot sue his former attorney unless he establishes that he is actually innocent. Texas prefers the term “exoneration.” This year the Texas Supreme Court, in Gray v. Skelton, No. 18-0386, held that a criminal defendant can sue her lawyer once her conviction is vacated. During the malpractice case, however, she must demonstrate that she was innocent.

Patricia Skelton was an attorney who was convicted of fraud for allegedly altering a will. (She apparently cut and pasted signatures from one version of the will which had been damaged by water to another version printed out of a computer) After her conviction the probate court hearing the estate case found that there was no alteration of the terms of the will. Eventually Ms. Skelton was able to get her criminal conviction vacated. She then sued her criminal defense attorney for legal malpractice. The lower courts dismissed her case, but the Texas Supreme Court reversed and reinstated the case. The opinion discusses prior Texas decisions and then provides a legal definition of “exoneration.”  The discussion is quoted below:

Under the now so-called Peeler [v. Hughes and Luce, 909 S.W. 2d 494 (Texas 1995)\ doctrine, convicts may not sue their criminal-defense attorneys for malpractice unless “they have been exonerated on direct appeal, through post-conviction relief, or otherwise.” Id. at 498. This is so, the Peeler plurality explained, because “allowing civil recovery for convicts impermissibly shifts responsibility for the crime away from the convict.” Id. Without this rule, malpractice claims brought by convicted criminals would “drastically diminish[ ] the consequences of the convicts’ criminal conduct and seriously undermine[ ] our system of criminal justice.” Id. And as the plurality also noted, permitting a convicted criminal to recover damages through a legal-malpractice claim would allow that criminal “to profit by his own fraud, or to take advantage of his own wrong, or to found a claim upon his iniquity, or to acquire property by his own crime.” Id. at 497 (quoting State ex rel. O’Blennis v. Adolf, 691 S.W.2d 498, 504 (Mo. Ct. App. 1985)).

Continue reading →
Published on:

By

One defense in a legal malpractice case is that the lawyer exercised judgment (usually at trial) and, therefore, he should not be liable for legal malpractice.

One way to explain this is to make an analogy to the role of a baseball manager. In my example, the manager’s team is leading 5-4 and there are two outs and two runners on base. The manager elects to intentionally walk the other team’s clean up hitter, Jones. He elects to have his pitcher pitch to the next hitter in the line up. Unfortunately, that hitter hits a home run (a grand slam) and four runs cross the plate. The angry fan (or newspaper columnist) says “He should not have intentionally walked Jones to pitch to Brown. If he had only done that, we would have won the game.” This is a classic case of a judgment call gone wrong. The manager made a decision after carefully weighing the odds and it turned out poorly. That is not baseball malpractice and it isn’t legal malpractice either if the lawyer elects not to call the criminal defendant to the stand or elects not to call an expert witness who will only support the State’s theory of the evidence. The key inquiry is whether or not the lawyer actually weighed the possible outcomes before he made his decision. In other words, was it a judgment call, or just a blunder?

In Schaeffer v. Thompson, No. 2180834 (Court of Civil Appeals of Alabama, February 20, 2020), the plaintiff claimed that the lawyer committed malpractice in the underlying case. Plaintiff obtained testimony by an expert witness that the lawyer’s work did not meet the standard of care.

Continue reading →
Published on:

By

In Moreton Binn v. Muchnick, Golieb and Golieb, P.C. 2020 NY Slip Op 02020, the plaintiffs sued their lawyers for allegedly poor advice causing them to lose majority control of a series of corporations they owned. The court rejected the claims for a variety of reasons. First, some claims were dismissed because the lead plaintiff clearly consented to the transaction. Second, additional claims were dismissed because the plaintiffs engaged successor counsel to advise them on the 2016 transaction.  The relevant portion of the opinion states:

Plaintiffs allege that their long-time attorneys, defendants John Golieb, Esq. and Muchnick, Golieb & Golieb, P.C. (together, the Golieb defendants), gave poor advice in connection with a series of transactions in 2014, 2015 and 2016, resulting in the loss of plaintiffs’ majority interest and dilution of their interest in their airport spa business, XpresSpa Holdings, LLC (XpresSpa), as well as other damages. The motion court correctly concluded that documentary evidence, including emails and transaction documents, rendered it “essentially undeniable” that plaintiffs were advised of and/or otherwise understood the terms of the transactions they entered into in 2014 and 2015, as well as their alternative options, if any (see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432 [1st Dept 2014] [internal quotation marks omitted]). Those documents “conclusively establish[] a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 [1994]; see CPLR 3211[a][1]).

The court correctly concluded that plaintiffs failed to establish that the Golieb defendants were the proximate cause of any damages in connection with the 2016 vote on the merger of XpresSpa and its acquisition by Form Holdings Corp. Documents show that plaintiff Moreton Binn voted in favor of the merger “under protest,” that he felt “frozen. . . out” of the merger negotiations, and that he received inadequate information from Form Holdings — factors outside of the Golieb defendants’ control. Moreover, in connection with their execution of the Joinder Agreement relating to the merger, plaintiffs retained separate counsel to represent them and the minority shareholders in evaluating the voluminous merger and acquisition documents by reviewing the documents and summarizing their terms for the minority shareholders. Thus, separate counsel was an intervening and superseding cause of any damages (see Boye v Rubin & Bailin, LLP, 152 AD3d 1, 10 [1st Dept 2017]).

Continue reading →
Published on:

By

The case, Herren v. Armenta, No. 1-CA-CV-18-0381 (Arizona Court of Appeals January 14, 2020) is a legal malpractice case where Herren lost her underlying case, a business dispute. As we shall see, despite evidence of negligence she also lost the legal malpractice case.

In the underlying matter, Herren hired Armenta to defend a lawsuit by Tonto Supply over a gravel-mining contract. The defense did not go well as we can see from this quote:

¶4 Tonto Supply then filed a multi-claim lawsuit against Herren, and Herren hired Arizona-licensed Holden and her firm to assist with the lawsuit. After Appellees filed an answer and counterclaims on Herren’s behalf, Tonto Supply filed five motions for partial summary judgment on various claims and counterclaims and sent Herren a request for admission of 25 factual matters. Appellees did not respond to the request for admissions and failed to timely respond to the partial summary judgment motions. Appellees were late responding to four of the motions, even after obtaining an extension following the initial deadline, and Appellees neglected to respond at all to one of the motions.

Continue reading →
Published on:

By

It is extremely rare for a plaintiff to succeed in a legal malpractice case without obtaining an expert witness to testify as to the appropriate standard of care. Plaintiffs who attempt to prevail without an expert usually see their case dismissed on a summary judgment motion by the Defendant. However, in Cannon v. Poliquin, No. K19C-03-023-CLS (Delaware Superior Court) the court held that no expert testimony was required. The court then denied the defendant’s motion for summary judgment.

The court noted that there were two causes of action in the complaint: (a) legal malpractice and (b) fraudulent inducement. (The opinion does not describe the factual allegations so we don’t know what actually occurred). However, the court noted that because the case would be tried in a bench trial (no jury) there was no need for an expert witness.  This is an unusual assertion and one that I have not seen before. The explanation:

Plaintiffs contend that an attorney is not required for their legal malpractice claim because it is based on intentional or reckless conduct. Without reaching the issue of whether or not an expert witness must testify in cases alleging intentional or reckless conduct, the Court finds that an expert witness is not required in this specific case. Under Delaware’s Uniform Rules of Evidence, a witness is qualified as an expert witness if that witness’s “scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue.”[6] This case is a bench trial; thus, the Court is the trier of fact. It is unnecessary for an expert witness to provide testimony on the appropriate standard of care for an attorney because the Court knows the applicable standard of care. Accordingly, an expert witness’s “specialized knowledge” will not help the trier of fact determine the appropriate standard of care for an attorney. Because an expert witness is not required for Plaintiffs’ claim, Defendant has failed to show that he is entitled to judgment as a matter of law on Plaintiffs’ claim for legal malpractice.

Continue reading →
Published on:

By

Generally, in Illinois, the successful plaintiff in a legal malpractice action can recover from the lawyer the same damages that he could recover in the underlying case. So, in a personal injury case, the plaintiff can recover (a) economic damages, such as medical bills and lost wages and (b) pain and suffering damages. If a lawyer causes the plaintiff to lose a valid claim, the plaintiff should be able to recover the same damages from the lawyer.  In Webster Bank v. Pierce & Associates, P.C., 16-cv2522, (2-19-2020) the district court held that a plaintiff bank can recover prejudgment interest in a legal malpractice claim against its former lawyer.

The underlying case was a collection action on a promissory note. The opinion does not describe the act of legal malpractice. The defendant law firm filed a motion in limine to bar the bank from seeking pre-judgment interest. The court denied the motion because the bank (had it been successful in the underlying case) could have obtained the same prejudgment interest.  The pertinent discussion follows:

Here, Webster alleges Pierce’s malpractice in a suit-on-note claim against Kristen Jasinski caused its damage. According to Webster, had Pierce been successful in the underlying suit-on-note claim, Webster would have been entitled to a judgment in the amount of the principle of the note plus interest from the date of Jasinski’s default to the date of judgment under the terms of Jasinski’s loan agreement or the Illinois Interest Act, 815 ILCS 205/2. (Dkt. 182, Ex. 1, p. 3) (finance charge calculated by applying the periodic interest rate to the Daily Balance of the loan); 815 ILCS 205/2 (“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any … promissory note … In the absence of an agreement between the creditor and debtor governing interest charges, upon 30 days’ written notice to the debtor, an assignee or agent of the creditor may charge and collect interest as provided in this Section on behalf of a creditor.”). Webster asserts that the

Continue reading →
Contact Information
111 W Washington St, #1437
Chicago, IL 60602 Phone: 312.357.1515

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2015 – 2025, The Clinton Law Firm
JUSTIA Law Firm Blog Design