Aggressive Advocates For Your Rights

Conciseness is Still Key: How Being Too Wordy Leads to Malpractice

"A Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent to no Concise Statement at all." Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa. Super. 2001). Had the attorneys ... 

"A Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent to no Concise Statement at all." Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa. Super. 2001).

Had the attorneys being sued in Epstein v. Saul Ewing remembered that, a lot of judicial resources could have been spared as well as a lot of headaches for both sides. Alan B. Epstein, Esquire and Spector Gadon & Rosen lost a rather heart wrenching case because their attorneys, Saul Ewing, LLP failed to be concise enough for the court and ultimately, by trying to plead too much, cost their clients what should have been a straight forward case.

In 1987, shortly after her birth, Tara M. was adjudicated dependent, and the Philadelphia Department of Human Services ("DHS") was given custody of the child and placed her in foster care. In 1991, Nancy Kanter, Esquire was appointed as child advocate or guardianad litem for Tara M. In February 1996, then nine-year-old Tara M. was hospitalized; it was subsequently revealed that Tara M. had been sexually and physically abused by her pre-adoptive foster family. On March 6, 1996, Ms. Kanter was re-appointed as guardian ad litem for Tara M., and on March 19, 1996, Ms. Kanter received the additional appointment of guardian of the child's estate.

Ms. Kanter concluded that Tara M. had meritorious causes of action against various entities and could recover damages for the injuries that she sustained while in foster care. Ms. Kanter met with attorney Alan P. Epstein and referred him the case. At that time, Mr. Epstein was a member of the law firm of Jablon, Epstein, Wolf & Drucker, P.C. ("Jablon").

Ms. Kanter, in her capacity as guardian of the estate and guardian ad litem of Tara M., agreed to a fee arrangement with Mr. Epstein and Jablon, whereby they would receive one-third of any recovery on behalf of Tara M. The written retainer agreement entered into between Ms. Kanter as guardian of Tara M. and Mr. Esptein and Jablon failed to indicate the existence of any arrangement that Ms. Kanter would receive a portion of the attorneys' fees earned by Mr. Epstein and Jablon.

Mr. Epstein and Jablon then instituted a federal civil rights action (the "Tara M. litigation") against the City of Philadelphia and others who negligently contributed to the events leading to Tara M.'s injuries. Ms. Kanter, in her capacity as guardian of the estate and guardian ad litem of Tara M., was the named plaintiff in that federal action.

Ms. Kanter was thereafter joined as a third-party defendant because she had been Tara M.'s guardian ad litem during the period when the abuse was perpetrated upon the child. During the course of the Tara M. litigation, Jablon merged with Spector

In 2001, a $4,310,000 settlement was reached in the Tara M. litigation against all defendants; Ms. Kanter's professional liability insurance carrier contributed to this settlement amount on Ms. Kanter's behalf.

The federal court approved the settlement and awarded Epstein and Spector Gadon & Rosen (SGR) $1,293,000 in attorneys' fees. Ms. Kanter then demanded one-third of that fee, which Epstein and SGR refused to pay, asserting that they had never agreed to pay Ms. Kanter a one-third referral fee. Epstein and SGR also asserted that Ms. Kanter was legally precluded from receiving such a fee based upon her status as guardian of the estate and guardian ad litem of Tara M. when the federal action was initiated.

Ms. Kanter then instituted a case against Epstein and SGR, asserting claims for breach of contract and conversion and seeking punitive damages. In that action, Ms. Kanter sought $430,569, which constituted one-third of the attorneys' fees of $1,293,000.

Epstein and SGR countered that Mr. Epstein never agreed to pay Ms. Kanter a referral fee and that Ms. Kanter had an impermissible conflict of interest legally precluding her from recovering a referral fee. Epstein and SGR sought to have Ms. Kanter's one-third referral fee request dismissed based upon the conflict-of-interest defense. That motion was denied, but the trial court did permit evidence and argument to be submitted to the jury on the question of whether Ms. Kanter had a conflict of interest that prevented her from recovering her requested one-third referral fee.

The trial court ordered Epstein and SGR to file "concise statements of the issues to be raised on appeal". However, in total, Epstein and SGR identified 104 issues in their 15 page Statements. Furthermore, many of the issues identified by each of the Defendants also included multiple sub-issues.

The applicable rule is:

The statement of the questions involved must state the question or questions in the briefest and most general terms, without names, dates, amounts or particulars of any kind. It should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby. Pa.R.A.P. 2116(a).

Obviously, the court ruled against them, saying "The Defendants breached their duty of fair dealing with this Court when they: . . . entered snap judgments after agreeing in open court [and in writing] to an extension of Rule 227.4; . . . and when they filed 1925(b) Statements that raised substantially more issues than they will be permitted to address on appeal because of the limitations set forth in [the rules]" Trial Court Opinion, 2/26/04, at 84-85 (emphasis in original, footnote omitted). Because of this, a legal malpractice claim commenced.

During the legal malpractice case against Saul Ewing, the parties agreed that the issue of whether Epstein and SGR would have obtained appellate relief in the previous case was a question of law. Additionally, they consented to submit to a reviewing court the question of whether Epstein and SGR would have prevailed in this Court as to any issues.

If was finally concluded that if Court had reached the merits, it would have ultimately, as a matter of law, ruled in favor of Epstein and SGR on all important points. What this means for clients is that more is not always better. This case shows that sometimes oversight of your attorney is necessary, to make sure that they are not too long winded, and sometimes need to reign in their legal writings. If not, they too may be faced with a malpractice case.

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