Thursday Attorney Malpractice Update 3/13/08
Posted: March 13th, 2008
By: Andrew Bluestone, Esq.
Category: Attorney Malpractice, The News Beat

NEW JERSEY TRAP 

NJ has some traps for the unwary in legal malpractice, and this case showcases several of them. In CELESTE GUIA PINTO, v.MCGOVERN, PROVOST & COLRICK, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION DOCKET NO. A-3186-06T53186-06T5 we see the Puder rule on settlements, the rule on certificates of merit, and an application of the Sheridan v. Sheridan rule on reporting fraud.
Points of interest:  mother, an immigrant, accumulates a significant estate, including 5 properties.  She wants to reward son, and asks him to get an attorney to draw up a will which will give him some of the funds and part of some of the properties.  She signs what eventually turns out to be deeds making them joint owners of all the properties.

SPECIALISTS and GENERALISTS

Attorneys are generalists, no attorneys are specialists, no they can handle anything?  The profession is of two minds on this question.  Any attorney, duly admitted, etc. may offer opinion evidence on the behavior of another attorney, and any attorney might simply step up to the counsel table and give an appearance.  Once that happens, the trial is on.

However,  it's quite obvious that experience is not only nice, it's a necessity. Here is an article about defending the DUI case.  Somewhat long, and a little argumentative, it makes a very good point.  Is the person writing this article more likely to obtain a solid professional result, or will the friendly generalist do better for the criminal defendant?
"Almost every attorney is at one time or another confronted with a client, friend, or family member charged with drunk driving. Because accused drunk drivers are immediately charged with a crime, drunk-driving cases represent the single largest category of criminal infractions of all reported cases, with about 200,000 more cases processed each year than all theft and larceny offenses combined. Even attorneys who do not generally handle criminal matters are routinely asked how an accused person should proceed in a drunk-driving case. In the 1960s, driving under the influence of alcohol was considered a minor offense, leading to modest fines; in the 1990s, it is considered the most serious misdemeanor offense. In several states, repeat offenders are considered felons."

DROPPING THE “F” BOMB AT A DEPOSITION

Depositions in New York used to be a variant of the Wild West rodeo.  Bucking broncos, trying to stay up on the horse, pick your metaphor.  New attorneys soon learned the usual tricks, "I'll take that under advisement", "I direct the witness not to answer" and all that.  With Administrative orders things have changed here.  Ever have a really really bad deposition experience?

A gross example of bad deposition behavior is found here  Of interest is the fact that attorney Ziccardi is being sanctioned along with his client.  We won't repeat the vulgarities here, but read the entire story for a look at a bad situation.

"A federal judge has levied sanctions of more than $29,000 on a lawyer and his client after finding that a deposition was a "spectacular failure" because of the client's constant use of vulgar language and insults and dodging or refusing to answer questions, and his lawyer's failure to rein him in. 

In his 44-page opinion in GMAC Bank v. HTFC Corp., U.S. District Judge Eduardo C. Robreno found that Aaron Wider, the CEO of HTFC, engaged in "hostile, uncivil, and vulgar conduct, which persisted throughout the nearly 12 hours of deposition testimony." 

Robreno noted that Wider used the "F word" or variations of it 73 times during the deposition and that the video shows that his lawyer, Joseph R. Ziccardi of Chicago, at one point "snickered" at his client's conduct.
"In the final section of the opinion, Robreno explained why Ziccardi, too, must be sanctioned for Wider's misconduct. 

"Throughout the deposition, notwithstanding the severe and repeated nature of Wider's misconduct, Ziccardi persistently failed to intercede and correct Wider's violations of the Federal Rules," Robreno wrote.
"Instead, Ziccardi sat idly by as a mere spectator to Wider's abusive, obstructive, and evasive behavior; and when he did speak, he either incorrectly directed the witness not to answer, dared opposing counsel to file a motion to compel, or even joined in Wider's offensive conduct," Robreno wrote. 

In a footnote, Robreno said the video showed Ziccardi "chuckling at Wider's abusive behavior" and Bodzin's comment that "'your snickering counsel is not appropriate either, because all you're doing is encouraging the behavior of your client.'" 

In court papers, Ziccardi argued that he believed he had tried to curb his client's behavior, but that most of his efforts to do so occurred off the record. "

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