Aggressive Advocates For Your Rights

February 2012 Archives

Say What You Mean, and Mean What You Say

As this blog has often mentioned, the attorney-client relationship is one of, if not the most important factor in moving forward with legal malpractice actions. Capitol Surgical Supplies, Inc. v. Casale, 86 Fed. Appx. 506 (3rd Cir. 2004) builds on this theme by clarifying when an attorney who does not form an explicit attorney-client relationship may still be held responsible for malpractice. The most important piece of the decision is that when working with an attorney; make sure to discuss the scope of the relationship. If an attorney does not sign an explicit agreement, or take actions which would place you in a clear attorney-client relationship, then if something goes awry, the client will have no repercussions.

One of Pennsylvania's Smallest Classes

Imagine your parent passes away, and you are an inheritor under the will. There is one problem, the attorney who drafted your parent's will did something wrong. Can you recover for their malpractice in Pennsylvania? This is the situation encountered in Hess v. Fox Rothschild, LLP, 925 A.2d 798 (Pa. Super. 2007). There are two major points the case provides. The first point is more of a procedural matter stating that when you appeal a judgment, the statement for matters complained of on appeal must be reasonably specific or the matters will be considered waived, and appeal denied. The attorney malpractice point which is important is that there are certain situations where a third party who does not have an attorney-client relationship may recover in a will situation.

Methods of Proving Malpractice

In legal malpractice cases, plaintiffs often use the "case-within-a-case" method to prove their claims. This theory requires a plaintiff to show they would have been successful in the underlying action if not for the attorney's negligence. For many years in New Jersey, courts viewed it as the sole method for proving legal malpractice. In Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343 (N.J. 2004), the court recognized that "case-within-a-case" is not the exclusive avenue for proving legal malpractice cases. It is one of several methods.

Legal Malpractice and the Wallet

Given this month's column involves a Pennsylvania and New Jersey case involving damages awards, this is a good opportunity to discuss the role damages play in malpractice actions. Gravers v. Lanfrit, A-3205-10T1, 2012 WL 331763 (N.J. Super. App. Ct. 2012), is a good example of the roles damages play in New Jersey cases. The most important point that can be gleaned from the above case is that if damages are initially too speculative, a Judge may declare the damages claimed too speculative, and require a plaintiff to pinpoint a more exact number.

Monthly Column: Are Attorney's Fees Consequential Damages In Legal Malpractice Actions?

In reading The Legal's reporting in First Judicial District of Pennsylvania v. Rotwitt, et al., Phila. C.P. October term; 2011, No. 4286, it appears plaintiff-FJD additionally seeks attorney's fees secondary to its legal malpractice claim arising from the Philadelphia family court construction project litigation. Said differently, as reported, this, in part, legal malpractice action seeks its related attorney's fees: both regarding incurred by FJD in the underlying action as well as to be incurred in prosecuting this action.

Where there's a will, there's not always a way.

Taffaro v. Connell (A-4928-09T2, 2011 WL 4502077 (N.J. Super. App. Div. 2011) is a case involving a family member who felt spurned, and a will. The case further outlines the attorney-client relationship, and what will suffice to provide the basis for a legal malpractice claim.

Arbitration Eligible

Goodwin v. Donahue Hagan Klein Newsome & O'Donnell (A-3476-10T2, 2011 WL 6845888 (N.J. Super. App. Div. 2011)) is a super settlement case. It is a New Jersey case which aims to set the boundaries of what sort of actions rise to the level of legal malpractice. The attorney relationship revolves around a divorce action filed by the plaintiff Matthew Goodwin against the defendant Edward O'Donnell, a member of the firm named in the case.

Talk the Talk and Walk the Walk

Tietjen v. Mazawey is a key New Jersey case in reminding legal malpractice practitioners that expert truly means expert. It is not enough to simply have another attorney certify that an attorney's conduct deviated from the typical standards of care. What is necessary from the expert is a detailed report, which supports the expert's conclusion.

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