Billy Blanks Loses More Than Body Fat

In 2005, Tae Bo creator Billy Blanks won a $30 million legal malpractice verdict against Seyfarth Shaw based on allegations that the firm failed to file court papers on time in the right venue.  Earlier this week, a California appellate court found that the damage instructions were improper and sent the case back to the trial court, wiping out the huge legal malpractice verdict.  Fortunately for Blanks, the finding of malpractice appears to still stand.

A plaintiff always likes going to a jury and not asking whether the plaintiff is owed something, but only asking how much.

Posted on: February 25, 2009 | Tagged

Texas Two Step – Tort Reform Style

texas two stepMy friend Steve Lombardi, a personal injury lawyer in Des Moines, had a great post today in his Injuryboard blog.  In the post, Steve looks at a Texas medical malpractice case where the plaintiff’s claim was devestated by the tort reform era cap on non-economic damages.  I can’t do the post justice so I just encourage all of you to read Steve’s post, Stepping On The Little Guy; Dallas Worker Loses All Four Limbs And Is Awarded $177 Million; Well, Almost, But Not Quite.

The sad thing is that the business and insurance lobbies aren’t done.  Despite sweeping tort reform measures in 1995 and 2003, big business and insurance are over at the new legislative session asking for more.

And their not happy just trying to beat down the little guy at the Capitol.  Now, the Central Texas branch of Citizens Against Lawsuit Abuse (an inappropriately named group if ever there was one) is sponsoring a television commercial featuring Rick Perry that is blatantly designed to influence the Central Texas jury pool.  You can see the commercial at the CALA site.

Fortunately, there are a few people out there fighting for the little guy.  One of the best groups out there is Texas Watch.  Anyone interested in the justice system ought to pay attention to Dennis and the guys over there.

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Two New Legal Malpractice Opinions Show The Importance Of The Case Within A Case

In the last two weeks, Texas appellate courts have decided two legal malpractice cases on behalf of the attorneys because the client couldn’t prove that he would have prevailed in the underlying case.

Last Friday, in Hackett v. Littlepage & Booth, 2009 Tex. App. Lexis 1166 (Tex. App. – Austin, Feb. 20, 2009), the Court upheld summary judgment in favor of the defendant lawyers.  Hackett hired Littlepage & Booth to file claims against Celebrex alleging that Celebrex caused one of his medical conditions.  That suit was eventually dismissed, and Hackett filed suit against the firm for not suing the two physicians that prescribed the Celebrex.

In the legal malpractice claim, Hackett retained a physician expert that offered opinions that Celebrex caused his condition and that the physicians should not have prescribed the drug.  Littlepage & Booth challenged the expert’s testimony as unreliable, arguing that there were no epidemiological studies to support the link between Celebrex and Hackett’s condition.    The trial court (Judge Stephen Yelenosky here in Travis County) granted the motion.  Once the expert was deemed unreliable, Hackett didn’t have any evidence to support the case within a case, and the court granted the law firm’s motion for summary judgment.

The Austin Court of Appeals upheld both rulings, and Hackett lost because he could not prevail on the case within a case.  There was also an interesting issue regarding Deceptive Trade Practices Act claims in the legal malpractice context, but I think I’ll save that discussion for a later post.

A similar result was reached in Simon v. Miller & Associates, PLLC, 2009 Tex. App. LEXIS 989 (Tex. App. – Houston [14th Dist.], Feb. 12, 2009).  Simon filed a small claims suit against his apartment complex, and the judge told him that he had sued the wrong defendants.  Simon then hired the law firm to pursue the claim, but the law firm never amended to add the correct parties.  The firm then withdrew from representing Simon shortly before the trial.  Simon’s claim was eventually dismissed because he had the wrong parties.

After the dismissal, Simon filed suit against the law firm pro se (meaning he was acting as his own attorney).  At trial, all of the parties agreed that the firm breached its duty and was negligent.  However, the trial court heard the evidence, decided that Simon would not have won his suit, and ruled for the defendant.  That finding was upheld by the Court of Appeals.

Both of these cases help demonstrate that the most fruitful defense in many legal malpractice cases is the challenge to causation.  In many suits, there is no question that the defendant breached its duty to the client, but the defendant is able to make some hay as a defense by arguing causation.

This often produces a weird dynamic in cases against plaintiff’s lawyers, particularly when they had the underlying case on a contingent basis.  The defendant lawyer is essentially arguing that the claim that he was pursuing in the underlying case, even if he agreed to do it on a contingent basis, was a frivolous claim.  These defenses can lead to some fun depositions for the legal malpractice plaintiff’s lawyer.

Posted on: February 22, 2009 | Tagged

Because they’re an insurance company…

I just got off the phone with a defendant in a car wreck case.  We had served him with a suit a few days ago, and he’s been leaving harassing messages at off hours claiming he didn’t own a car and was out of town on the date of the wreck.  The messages also threatened he was going to call the state bar, the attorney general, local television stations and whomever else he could think of.  But he wouldn’t leave a number to call back.

He finally called during business hours, and I talked to him.  He “remembered” that he had been in a wreck when he ran a red light, but he said he was fully covered legally.  I asked what that meant.  He said he had a valid driver’s license and full insurance.   And then he asked, “You mean the insurance company didn’t pay?”  “No.”  “Well, why would they do that?” he asked.  And I replied with the truth, “Because they’re an insurance company.”

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Penn. Judges Bribed To Send Kids To Prison?

I’m not sure I’ve ever seen a more appalling story about the judicial system.

The Associated Press is reporting that two Pennsylvania judges have been charged with accepting millions of dollars in bribes to send teenagers to two privately run youth detention centers.  And for petty crimes too.  The story mentions one young girl sent to prison for lampooning her assistant principal on the girl’s MySpace page.

I’m not sure there’s anything I need to add.  Just unbelievable.

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An Example of Why Legal Malpractice Claims Are So Expensive

I often have the misfortune of having to explain to prospective clients that even though their previous attorneys had acted in a way that is almost unthinkable, I can’t help them because they weren’t hurt enough.  I have to explain that legal malpractice cases are expensive and that the damages have to be significant to justify the expense.

Today’s Lodi, California newspaper has an article on a legal malpractice case that serves as a perfect example of what I tell potential clients.   From late 1996 to early 2004, attorney Michael Donovan represented the city of Lodi in a lawsuit over groundwater contamination.  After criticism from the judge overseeing the case, the city fired Donovan and hired another lawyer.  The city eventually settled with all the parties.

After the firing, the city sued Donovan for legal malpractice.  Donovan, though paid over $14 million by the city, countersued saying that the city still owed him fees.  Donovan claimed he was owed millions more, a percentage of all the settlements, and interest.

The case settled with the city agreeing to pay Donovan an additional $1 million.  The primary motivating factor was the potential cost of the litigation.  Through the settlement, the city had spent $2.5 million on the case and expected to spend an additional $1 million for the planned six week trial and another $1 million for a potential appeal.  The city noted that the city’s attorneys took more than forty depositions in the case and would have to call numerous experts to talk about the underlying claim.

Admittedly, this is an extreme case.  The underlying case involved complicated issues and more than 100 parties.  But the same principles apply.  It’s a tough row to hoe having to hire experts to prove up any underlying case and then also having to hire attorney experts to prove up the legal malpractice claims.  But despite all the reasons and rationales, it doesn’t make it any easier to tell clients that have been wronged that you can’t help them.

Posted on: February 10, 2009 | Tagged

I’m Going Back To School

spu faculty badgeOver sixty percent of the lawyers in the U.S. practice in solo or small firms, but U.S. law schools don’t do anything to help students actually practice law. Sure, schools teach us the law and how to think like lawyers, but they don’t teach how to be lawyers. A lot of people in the legal community have griped about this, but few have done anything about it. Until now.

Susan Cartier Liebel has finally done something about it. Susan has a passion for helping lawyers open their own law firms. She has been a tireless advocate for solo lawyers by authoring one of the most popular legal blogs in the country, consulted with lawyers for years, and even taught a “how to practice law course” at the Quinnipiac University School of Law. But now she’s going a step further by establishing Solo Practice University.

Solo Practice University is a web-based “school” with faculty from around the country that will teach lawyers numerous practical aspects of how to run a law practice.  It will look at everything from administrative issues to instruction on specific practice areas that her students might be interested in. Although the doors don’t open until March, Solo Practice University is garnering a lot of buzz. For example, Solo Practice University was recently the subject of a profile in LawyersUSA magazine.

And I’m very happy that I’m doing my small part. I’m excited that Solo Practice University has asked me to teach a class on legal malpractice litigation. The class will focus on the basics of legal malpractice claims and how to prosecute and defend claims.  I don’t really know what the end product will look like because I hope to take a lot of direction from the students, but I am looking forward to getting started.

I’ll keep everyone posted as we get closer.


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An Unusual Criminal Proceeding With A Question About Eye Witness Testimony

We have a weird criminal proceeding occurring here in Travis County. In 1986, 26 year old Timothy Cole was convicted of rape by a Lubbock County jury and sentenced to 25 years in prison. Cole maintained his innocence throughout the trial. In 1995, another prisoner confessed to the crime, but no one really took notice until 1999, when Cole died in prison. At that time, the state called the victim and informed her that Cole had died from complications from asthma. She told the officials she was surprised because her attacker was smoking throughout the attack. And yet nothing happened.

In 2007, authorities finally began listening to Jerry Wayne Johnson, the inmate that had confessed to the crime, and last year DNA testing, under the guidance of Barry Scheck’s Innocence Project, confirmed that Johnson was the attacker. While the DNA test was satisfying, Cole’s family wanted his name cleared.  Unfortunately, Lubbock County refused to do anything about it so in stepped Travis County District Judge Charlie Baird.

Judge Baird is one of the more progressive judges we have. For example, Judge Baird has personally recruited businesses asking them to help give criminal defendants better jobs. He’s also set up a parenting program that offers Saturday parenting classes to some of his probationers, even going the extra step of paying for the program out of campaign funds and attending the weekend sessions with the participants. (To read more about him, you can check out articles from the Austin Chronicle and the Austin American Statesman.)

Judge Baird is conducting a two day hearing to clear Cole’s name. Judge Baird contends that the Texas Constitution requires courts to remedy a wrong they have caused (for a different viewpoint, see Paul Kennedy’s post “Is Innocence a Bar to Execution?”). At the end of the hearing today, Timothy Cole is likely to become the first Texan to be posthumously cleared of a crime.

But it also struck me that Cole’s conviction is a great example of the dangers of eyewitness testimony. Cole was convicted primarily on the identification of the victim, who picked Cole out of a “lineup” (I use that term loosely; she was apparently given a color photo of Cole and black and white photos of other potential perpetrators.).

For years, experts have been concerned about the reliability of eye witnesses (a famous study on the issue that looked at eye witnesses’ reliability in recall information regarding car wrecks was published way back in 1978). And during yesterday’s hearing, attorneys from the Innocence Project called as an expert witness, Mike Ware, a Dallas County prosecutor. As you may know, Dallas County has seen 19 people exonerated through DNA testing in the last couple of years, and Ware said that all but one of those cases involved a mistaken identification.

It’s known that eye-witness testimony is a problem, and yet it still remains the holy grail in the courtroom. What are we as lawyers supposed to do about that? I don’t really have any answers, just a lot of questions.

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Lawyers – Avoid the Unintended Client

Part of my standard spiel to lawyers on “how to avoid malpractice claims” is for the lawyer to take steps to avoid becoming the unintended lawyer.  Any time there are multiple potential parties who think they may rely on the attorney’s advice, the attorney needs to clarify in writing who the attorney does and does not represent. This problem can occur in any number of fact patterns, but I tell lawyers that one of the most common fact patterns is when an attorney represents a corporate entity in litigation, and employees of the entity are being deposed and think the lawyer represents them individually.

If you don’t do what I recommend, then you may end up with a case like Bergthold v. Winstead Sechrest & Minick, a case decided by the Ft. Worth Court of Appeals last week.

Bergthold was an employee of Southwestern Bell Yellow Pages. SWB was sued by its employee, Bingham, and Winstead was hired to defend SWB. During Bingham’s lawsuit, Bergthold was cooperating with Bingham and his attorneys, meeting with Bingham’s attorneys to discuss the facts in the lawsuit and to discuss the possibility that Bergthold might file his own suit against SWB.

During the course of the Bingham suit, Bergthold and several other SWB employees were deposed. Mr. Bergthold spoke to a Winstead attorney a couple of times before the deposition, but Bergthold continued to cooperate with Bingham, even having private conferences with Bingham’s lawyer during breaks in the depo. When Bergthold was asked during his depo about his meetings with Bingham’s lawyer, Bingham’s lawyer objected based on attorney-client privilege.

At the depo, Bergthold brought several confidential SWB documents that the Winstead attorney did not know about it. After the depo, the Winstead attorney told Bergthold that Bergthold could be in trouble for bringing the docs. Sure enough, Bergthold was later fired.

Bergthold filed suit against Winstead, contending that in his two or three conversations with the Winstead attorney, the Winstead attorney told Bergthold that the attorney represented SWB and its employees. Bergthold made two arguments in his suit: (1) Winstead was his attorney and was negligent for failing to tell him not to produce the documents; or (2) Winstead was negligent for not advising him that Winstead was not acting as his lawyers. The trial court granted Winstead’s summary judgment, and the case went to the Fort Worth court of appeals.

At the Court of Appeals, all three judges on the panel concluded that there was no attorney-client relationship, but the court was split 2-1 on whether Winstead was negligent for failing to inform Bergthold that there was no attorney-client relationship.  Had the Winstead lawyer sent Bergthold a simple form letter saying “I represent the company, and I’m not representing you” the case would have been a slam dunk.  Instead, even with Bergthold cooperating with the opposing party and relying on the advice from the other side, one appellate judge still thought Berthold was entitled to pursue his claim.

This case should serve as a cautionary tale for all of us.   As I said, this is a fairly common fact pattern, and Winstead should have had simple forms clarifying its role.  But because it didn’t, it was involved in costly and protected litigation.

It should also serve as a warning that even the best of us can be victims of legal malpractice claims.  Winstead is a very good firm (I have several friends in the local office), and they know better.  But even the best lawyers can get in trouble when not following routine advice.

Posted on: February 5, 2009 | Tagged

Schuelke Law maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke

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