Legal Malpractice Law Review

Legal Malpractice Law Review

Research, resources & expertise in the law governing lawyers

Category Archives: Defenses

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PA: One Giant Step for Legal Mal Plaintiffs in Pennsylvania

Posted in Attorneys Fees, Commercial, Damages, Defenses, Pennsylvania
Coleman v. Duane Morris, LLP (Superior Court of PA–Nov. 13, 2012) Underlying Matter: PA stock sale agreement to avoid personal tax liability; alleged breach of retainer contract claim for legal malpractice. Facts: Plaintiffs held ownership interests in two companies, BCA Management Inc. and BCA Professional Services, Inc. By 2006, the companies owed over $2 million… Continue Reading

MS: Admitting Liability by Default–Not Answering Request to Admit

Posted in Defenses, Mississippi
Byrd v. Bowie, 992 So.2d 1202 (Miss. Ct. App. 2008) MS: Underlying medical malpractice claim Student Contributor: Laura Stein Facts: After attorney-Byrd failed to timely designate a medical expert, in the Bowie’s wrongful death/medical malpractice action, the trial court granted summary judgment for the defendants (against his clients). On appeal, Mississippi Supreme Court affirmed. Clients… Continue Reading

7th Cir. No harm, no malpractice, even if the underlying settlement is “coerced”.

Posted in Damages, Defenses, Federal, Labor & Employent, Litigation, Torts/Personal Injury, Wisconsin
McKnight v. Dean, 270 F. 3d 513 Underlying legal malpractice action Student Contributor: Clem Durham Facts: A dispute then arose between McKnight and Gingras, the lawyer who had handled the case in the district court, concerning attorneys’ fees. This dispute led Gingras to sue McKnight in a Wisconsin state court. One of McKnight’s defenses in… Continue Reading

AL: Timely filing for prison inmates

Posted in Alabama, Criminal Law, Defenses, Litigation
Aaron v. Mansell, 854 So.2d.96 (2003). AL: Underlying criminal case Student Contributor: Farah Shahidpour Facts:  Client hired Attorney. Client, now acting pro se, sues Attorney for legal malpractice and slander. Attorney filed an answer and denied both of Client’s allegations. Attorney cross-filed for summary judgment. Client filed a request for oral argument for evidentiary hearing, a… Continue Reading

NY: Selection of Expert Protected by Professional Judgment Defense

Posted in Defenses, Expert Witnesses, New York
Healy v. Finz & Finz PC, 2011 NY Slip Op 1616, App. Div. 2nd Dept., 2011.  Facts: The plaintiffs retained the defendant law firm to represent them in the underlying medical malpractice action, in which they alleged that the doctors should have delivered plaintiffs’ surviving babies immediately after learning that one of the three fetuses had… Continue Reading

CA: “Anti-SLAPP” Statute No Defense in Legal Malpractice Actions

Posted in California, Defenses
Masten v. MIller, King & James, LLP, California Court of Appeals, Fourth District, January 21, 2011 Facts: Plaintiff sued Defendant attorneys for malpractice in connection with an underlying medical malpractice matter.  Defendants, in turn, filed a crossclaim against Plaintiff for alleged negligence and intentional misrepresentation during the course of the underlying action which led to… Continue Reading

MI: Limits of the Attorney Judgment Rule

Posted in Defenses, Disengagement, Michigan, Standard of Care
Bush v. Goren, Michigan Court of Appeals, February 1, 2011.  Facts: In 2005, Plaintiffs consulted the defendant attorneys with respect to a medical malpractice claim related to a cardiac surgery completed on August 24, 2004 to evaluate the safety of a new vascular closure device.  After obtaining opinions of various cardiologists and vascular surgeons, the… Continue Reading

NV: Dismissal for Double Recovery

Posted in Damages, Defenses, Nevada
Elyousef v. O’Reilly & Ferrario, LLC, Supreme Court of Nevada, November 18, 2010 Facts:  Homayouni entered into a transaction with his law firm’s client, Elyousef, to acquire interest in Nevada Oil and Land Development ("NOLD").  Perceiving this as a conflict of interest, Homayouni’s firm opposed the transaction.  Homayouni left the firm to complete the transaction. … Continue Reading

NY: No Damage? No Recovery.

Posted in But for-Proximate Cause, Damages, Defenses, New York, Real Estate
Vlahakis v.Mendelson & Associates, 54 A.D.3d 670, 863 N.Y.S.2d 479 (App. Div. 2d Dep’t 2008). NY: Underlying bankruptcy proceeding Student contributor: Nicole Milone Facts: John Vlahakis retained Mendelson & Associates to advise him in his bankruptcy proceeding. The attorneys assured their client that he would not have to pay the arrears he owed on his… Continue Reading

PA: Collectibility of Damages: Defendant’s Burden

Posted in Damages, Defenses, Pennsylvania, Proximate Cause, Torts/Personal Injury
Kituskie v. Corbman, 452 Pa.Super. 467, 682 A.2d 378 (Pa. Super. Ct. 1996) PA Underlying Representation: Personal Injury Lawsuit Student Contributor: John Anzalone Facts: Plaintiff sued Defendant Attorney and his law firm for failing to file a personal injury action within the statute of limitations. Plaintiff prevailed below after the judge excluded evidence of the… Continue Reading

Law of the Case Doctrine: Not Always a Viable Defense

Posted in Defenses, Federal
Speeney v. Powers, et al., United States Court of Appeals, Third Circuit, March 11, 2010 Facts: Appellants were alleged victims of harassment by a university professor. The university retained a law firm to represent it in connection with the professor’s de-tenure hearing and to defend the university in a lawsuit instituted by the professor. Appellants… Continue Reading

CA: Public Interest Firms Not Immune From Suit

Posted in California, Criminal Law, Defenses
Black v. California Appellate Project, Court of Appeals of California, Second District, Division Four, June 4, 2010 (Unpublished). Facts: Plaintiff was convicted of first degree burglary, and based on his prior criminal history, was sentenced to 38 years to life.  Plaintiff appealed and the appellate court affirmed his conviction.  Shortly thereafter, Black filed an action for… Continue Reading

NY: Collateral Estoppel in Legal Malpractice Suit

Posted in Defenses, Litigation, New York, Torts/Personal Injury
Pollicino v. Roemer & Featherstonhaugh, 277 A.D.2d 666; 716 N.Y.S.2d 416 (3rd Dept. 2000) NY Underlying Personal Injury Action; Notice of Claim vs. municipality Student Contributor: Natalie Resto Facts: Plaintiff retained defendant law firm to represent him in a personal injury action against the New York City Transit Authority when he lost sight in his eye… Continue Reading

NY: Blown Statute? No prob. Argue No Proximate Cause!

Posted in Defenses, New York, Proximate Cause
Erdman v. Dell 50 A.D.3d 627, 854 N.Y.S.2d 755 N.Y.A.D. 2 Dept., 2008. NY Undelrying personal injury; worksite accident; scaffolding Student Contributor: Ryan O’Donnell Facts: Client filed a legal malpractice suit against attorney arising out of the attorney’s representation of client in an underlying NY Labor Law  § 240 (1) action. Plaintiff was injured while working… Continue Reading

Defenses: Collateral Estoppel on Ineffective Assistance of Counsel

Posted in Criminal Law, Defenses, Federal, New Jersey
Alevras v. Tacopina, 399 F.Supp.2d 567, (N.J. 2005);  NJ Underlying criminal action. Student Contributor: Colleen Gaedcke Facts: The plaintiff was prosecuted and indicted on various counts of criminal violations in federal criminal court. He was appointed counsel but later retained the defendants to represent him. With the advice of his attorneys the plaintiff accepted an… Continue Reading

NJ Defenses to Legal Malpractice: Statute of Limitations

Posted in Defenses, Litigation, New Jersey, Real Estate, Statute of Limitations
Ellison v. Schenck, Price, Smith & King, 654 A.2d 1024 (N.J.Super.A.D. 1995) NJ: Underlying Real Estate and Litigation Student Contributor: John J. Anzalone Facts: Plaintiff’s entered into a lease for developing cemetery grounds. Defendant represented both Plaintiff and the Cemetery. The Defendant also represented the plaintiff in negotiating the terms of the sublease of leased… Continue Reading

Non-Collectibility of Judgment: Affirmative Defense to Legal Malpractice Action

Posted in Defenses, Litigation, New Jersey, Statute of Limitations, Substantial Factor-Proximate Cause
Albee Associates v. Orloff, Lowenbach, Stifelman and Siegel, P.A., 317 N.J.Super. 211 (App. Div. 1999) NJ Underlying Civil Litigation Student Contributor:  Joshua D. Aronson Facts: Defendant attorneys were hired by the plaintiffs to represent them in a civil fraud action. An entry of default was granted in favor of the plaintiffs. Following the entry of default,… Continue Reading