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Friday Five: No Friday Five? Posted: December 21st, 2007 By: Zach Heller Category: CLE Programming, Friday Five, Lawline.com, Videos
Hello all. I know you have become very accustomed to reading a top five list every single friday. Unfortunately, this week is so hectic that we could not produce one of any quality for you. So instead of leaving you with nothing to read, I thought I would give you my own personal excuses to enjoy.
TOP FIVE REASONS THERE IS NO FRIDAY FIVE
1. It's Friday. I know that might sound counter-intuitive, but today was just not the day to do any writing.
2. It's Rainy. Even though I am in the shelter of my office, the rain has made everything in and around New York City so dull. It does not put me in the mood to write.
3. It's a Holiday. Looking forward to the long weekend has put me in a rest and relaxation mode. That does not bode well for writing a Friday Five.
4. I am Too Focused on CLE. And now there is a new holiday special, so it gets people even more excited about continuing legal education. To check out the holiday special, click here.
Christmas is right around the corner, and there is very little time left to finish your last minute shopping. It is important to get everything you need in time. That is why we teamed with findingDulcinea.com to bring you some holiday shopping secrets.
More and more shopping is being done online, and findingDulcinea.com has made shopping the internet for the best websites easier than ever. In the video below, we will show you how to find the best deals easily and quickly, without spending countless hours searching the web.
FindingDulcinea.com is the librarian of the internet, dedicated to bringing you the most relevant information on whatever topic interests you. From news to promotions, they will show you exactly where to look to find what you need. They agreed to give Lawline.com a first look at their holiday shopping hints. Please enjoy the video below, featuring Senior Guides Writer, Haley Lovett.
The most important case of this week is Barnett v. Schwartz, 2007 NY Slip Op. 09712, 2d Dept, December 11, 2007. It is important for three reasons. We’ll discuss the first today:
“But for” causation is not as difficult as had previously been believed.
Does the failure to exercise "that degree of care, skill and diligence commonly possessed and exercised by members of the legal community.” have to be “the” proximate cause of damages? Must it be “a” proximate cause of damages?
The Appellate Division says that it must be nether “the” or “a” proximate cause of action, but simply requires proof that “but for” the negligence of the defendant-attorney, the plaintiff-client would have prevailed in the underlying action.”
This formulation does not require a greater, more direct degree of causation, and the Appellate Division did not find a “substantive import to the variations in the formulations discussed above, holding that a plaintiff-client in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages.”
“But for” causation is not synonymous with sole proximate cause, and it is not required that the degree of causation in legal malpractice be any greater than “proximate cause. i.e., greater than that which must be typically proved as against any other professional or lay defendant in a negligence action. There is no case which singles out attorneys for “special treatment on causation.”
THIS WEEKS LEGAL MALPRACTICE STORY
Disgorgement of fees is this year’s flavor de jour. More and more legal malpractice cases, especially involving very large law firms are coming from Bankruptcy Court.
The connection between these two concepts is seen in the recent Pillsbury Winthrop Shaw Pittman disgorgement case involving $4 million. The Chapter 11 Trustee for SonicBlue, Inc. is asking for the fees to be returned. The firm was removed from the case in March because it failed to disclose a 2002 letter in which it promised some SonicBlue investors that they would be repaid in full even if the company went into bankruptcy. The Trustee argued that this letter biased the firm towards a plan which actually did repay those investors.
With the Holiday Season upon us, more and more Americans will take to the road for family visits and vacations. This article will address various safety tips that will help you get to your destination safely and avoid being pulled over by a police officer.
Traffic: You invariable will be caught up in a traffic jam. Take a deep breath and relax. Consider this part of the “cost” of travel. Getting aggravated doesn’t help and can only lead to an accident.
Focus: Concentrate on your driving. Do not text message, check emails or engage in any other distracting behavior. Your IQ and response time diminishes dramatically the more you multi-task.
Drive in a group: When driving on a highway, stay within a grouping of other cars. It is easy for a police officer to isolate a sole vehicle than one within a group.
Remain attentive: Keep scanning the road ahead for areas where another vehicle can cut in front of you or where police could hide. Also, do not forget to check your rear view mirror for tailgating motorists. Keep a constant look out for traffic signs or markings which apply to you.
Vehicle condition: A vehicle with, for instance, a broken head light presents a danger to you and other motorists (and also is an open invitation for police attention). Make sure you care is in proper working order before embarking on a trip.
Police Stop: If you are stopped, be courteous. Abrasive behavior is a sure way to “earn” a traffic ticket. Also, do not volunteer too much information. When the officer asks you “Do you know why I stopped you?” simply state “No” or “No, but I am sorry to have troubled you”.
Armed with this information, you should be able to make it to any destination without many problems.
Matthew Weiss, Esq. is the senior member of Weiss & Associates, P.C. His firm dubbed 888 RED LIGHT defends 1,000s of motorists from traffic tickets issued throughout New York State. See http://www.nytrafficticket.com.
Tales from the Treasure Detective Posted: December 19th, 2007 By: Zach Heller Category: Career Corner, CLE Programming, SHOWCASE CORNER, Videos
There are many times when lawyers who deal with estate planning and taxes will need to use an appraiser for different types of personal property. Lee Drexler, president of Esquire Appraisals, Inc. of New York City and Westchester, is an experienced appraiser of fine arts, furniture and jewelry and has seen many unique pieces throughout her career. We spoke with Lee recently and asked if she could share with us some of the more interesting things that she has seen over the years.
One such story that she shares in the video below is of a woman who wanted her to appraise her engagement ring. It appears the woman had take the ring in to be reset earlier and had never been fully satisfied with the look and feel of the ring afterwards. Well, as you might suspect, it didn’t take Ms. Drexler long to discover that in fact the ring she was given back was fake. Both the diamond and the gold that it was set in were no longer real. An awful fact to find out so many years later, but as Lee says, she is brought in to reveal an ugly truth a lot of times.
Lee Drexler recently filmed a presentation with James Cohen on the legal aspects of appraisals for CLE credit on Lawline.com. The program covers the issue from both sides, the attorney and the appraiser. Lee has also written a book called Treasure Detective, where she shares stories like this about finding valuable pieces that nobody even knew existed.
To contact Lee Drexler, call 212-889-2580. Please enjoy the short video below, and look for the CLE lecture soon.
Friday Five: Big Week in Legal News Posted: December 14th, 2007 By: Zach Heller Category: Career Corner, Friday Five, Law Firms, Lawline.com, Opinion Corner, The News Beat
It’s the end of a crazy week. Why do I say it was crazy? So many things happened in and around the legal community this week that it is hard to even keep up. If you are like me, you have had your eyes glued to TV screens or newspaper articles for the past few days. Sometimes it can be difficult to try to comprehend it all at once. That is why this Friday I have decided to sum it all up in Lawline.com’s Friday Five. Enjoy!
TOP FIVE STORIES LEGAL STORIES IN THE NEWS THIS WEEK
1) The Mitchell Report. Congressman George Mitchell finally completed his two year investigation into steroid use in Major League Baseball yesterday. In my opinion, the report was very thorough but offered limited insight into the underlying issue. Sure some big players were named, but now what? What does it all mean? The one good thing that came from it is a detailed suggestion of future steroid testing that should be applied to all the major sports in the years to come.
2) New Jersey Outlaws Capital Punishment. New Jersey voted to pass a bill that would eliminate the death penalty in the state. That makes it the first state in over forty years to outlaw capital punishment. The bill is awaiting signing by the governor, but he has already stated that he is in favor of it.
3) Law Firm Layoffs. As if we needed another reminder of how bad the economy is doing right now, some major law firms have announced cutbacks and layoffs for the first time in years. That is an event that is almost unheard of the legal community, especially among the more prominent firms. And this is all happening just when there are more graduates coming out of law school than ever before.
4) Criminal Sentencing Guidelines Erased. Federal courts ruled earlier this week against sentencing guidelines for criminal convictions. Prior to this there were mandatory sentences for certain major crimes such as crack trafficking. Now, judges will have more flexibility in handing down sentences in these types of cases. The next step is to see whether or not the ruling is retroactive.
5) Depressed Attorneys. Dan Lukasik, an attorney in Buffalo, NY, started a website and a support group for depressed attorneys. This brought to light the fact that lawyers are among the most miserable people, according to some studies. This website, and other movements like it across the country are opening up the lines of communication and help attorneys get the help they’ve needed but were previously afraid to look for.
And that wraps up an exciting week in the news surround legal issues. I hope you will take the time to further investigate these stories, as some of them will have lasting affects for the foreseeable future. Catch you again soon.
LEGAL MALPRACTICE CASES IN
FEDERAL COURT THIS MONTH
1. WESTPORT INSURANCE CORP. v. GOLDBERGER & DUBLIN, P.C. United States Court of Appeals for the Second Circuit 2007 US App Lexis 27612
Law firm was sued by former clients, and insurance company disclaimed coverage because law firm did not give reasonable notice of potential suit. Law firm defended by arguing that it had no basis to expect a suit by its client, who had assured them that she did not intend to sue. She, however, did. Court noted that no court in New York “has addressed the question” of the objective inquiry into a client’s assurances “in deciding what an attorney in the insured’s position could reasonably have foreseen.”
2. SMARTIX INTERNATIONAL LLC v. GARRUBBO, ROMANKOW & CAPESE PC, United States District Court for the Southern District of New York, 2007 US Dist Lexis 85807
Discussion of post-end of discovery subpoenas, as well as whether non-party subpoenas are permissible in what might be called a fishing expedition. These personal records are “not relevant to the claim or defense of any party.”
3. KING v. FOX
United States District Court for the Southern District of New York, 2007 US Dist Lexis 85396
This case has “occupied this court, the magistrate judge, the Court of Appeals on two occasions and the New York Court of Appeals over the past ten years. Presently at issue is Fox’s motion to strike King’s demand for a jury trial.”
Judge Sweet discusses the equitable/law nature of the legal malpractice claims, and gives a short historical tour of the right to a jury trial.”
4. BRITESTARR HOMES INC. v. PIPER RUDNICK LLP
United States Court of Appeals for the Second Circuit 2007 US App Lexis 27935
Piper Rudnick wins motion for summary judgment, finding that client “failed to establish the required proof of damages for any of its claims.” “In particular, as to the difference between the value of the client’s property in bankruptcy and outside of bankruptcy, the client failed to show that any damage to the property was” the result of the bankruptcy proceeding.
THIS WEEK’S NEWS IN LEGAL MALPRACTICE
Shocking incivility in a deposition? Gender sarcasm during an EBT? Older attorney condescending to a younger attorney? Is this uncommon, or more nearly the norm in New York?
Anthony Lin of the New York Law Journal reported a Justice Edmead decision in which she castigated the male attorney for speaking uncivilly and with gender bias to the female attorney, calling her “hon” and “girl.” The attorney strongly denied using those words. He asked her why she was not wearing a wedding ring, and commented on her having a “cute thing going on.” This brings up the errata sheet theory of deposition testimony. He says that he was using the term “Hun” [as in Attila] which might have been complementary.
An interesting sideline to this story is that the female attorney was taking the deposition and had the only copy of the transcript, which she did not supply to the accused male attorney. How was he to defend?
Moral? What you are saying is being taken down.
Legal malpractice accusations are reaching billboards and the internet, and may prove to be more irksome there, and certainly more long-lived. A former client of Damon & Morey LLP has taken out a billboard to complain about them, and has used the internet to post the story. While a lawsuit may bring damages, the billboard certainly reaches a bigger audience and the internet posting will be there forever.
The estate tax code in the United States has a bit of a loophole. The way the code is written right now, the tax lessens every year until 2009, and then disappears completely in 2010, only to go back to a higher level in 2011.
We recently spoke with James Cohen, partner at the firm Kleinberg, Kaplan, Wolff and Cohen, P.C. He has spoken about this issue with many people, including Joe Lieberman, who he knows well. When speaking with Mr. Lieberman, he joked about how the loophole in the Estate Tax Code could cause some problems. The two spoke seriously about the fact that it could cause murders to go up that year.
For instance, if someone has an elderly parent with a large estate and they die, usually the estate is taxed up to 50%. If this happens in 2010, that tax is zero. And who knows what some people will do to get at all of that extra money. Along those same lines, if a person is sick and near death in 2009, there is a huge incentive to keep the person alive until the next year. The best thing that Washington can do is to take a long hard look at the tax code and revise it to better fit the year 2010.
Enjoy the video with James Cohen below and look for his upcoming CLE program on Lawline.com entitled Legal Aspects of Appraisals of Tangible Personal Property.
“Staying in the courtroom and working on the case on that day might very well have saved my life.” This is what Herald Price Fahringer has to say about the day that Larry Flynt was shot in Lawrenceville, Georgia. Herald was Mr. Flynt’s lead attorney in many of his cases around the country. On this particular case, as Mr. Fahringer explains, Larry Flynt had been receiving numerous death threats.
Because of the threats on Larry’s life, he and his attorneys decided to wear bullet proof vests in and around the courtroom. Herald decided that the Kentucky heat made wearing the vest too hot, so he took his off. Seeing that, Larry decided that if his attorney didn’t need one, he didn’t need one. And as Herald says in the video below, that was not the best idea considering the situation that they were all in.
Please enjoy the video below, as Herald Price Fahringer spoke with Lawline.com about the events of that day.
Happy Hanukkah to all of our Jewish readers out there. We are right in the middle of 8 crazy nights on this, the first Friday of December. This week, the Friday Five would like honor the holiday that lasts 8 full days by asking, “What else should be eight days long?” And I think we came up with some pretty good answers for your reading pleasure. Enjoy!
TOP 5 EVENTS/ACTIVITIES/THINGS THAT SHOULD ALSO BE 8 DAYS LONG
1) Election Day. I apologize for being so serious for a second but this one is really something that I think is true. The fact that elections in this country last only one day and takes place only at random designated locations makes it near impossible for many people to vote. It discourages a huge portion of the working class, single parents, college students, and anyone else with time and location restrictions from even attempting to vote. In a country where Election Day turnouts continue to drop, maybe it is time to take another look at the system.
2) Happy Hour. Okay, now we are back on track. Happy hour specials at your local bars are all well and good, but a lot of times they are too early to get the full enjoyment. Imagine a magical bar, picture yourself at the door. “What time is your happy hour,” you ask. “Well it starts now, and lasts for eight days,” says the bouncer. Perfect.
3) The Weekend. I am not saying that we should just take all the weekdays and turn them into weekends. No, I am saying that maybe we should rethink the whole calendar establishment in general people. I mean, who says there are only seven days in a week. Furthermore, who says we have to work at least five of them. I say we make the week 13 days long, and we take off at least 8 of them.
4) The NHL Season. I have to apologize for all you hockey fans out there for this one, but it’s time to face the facts. There are many reasons why the sport is slowing dying a miserable death in the United States. One major reason, the season is way too long. This isn’t baseball people, let’s get straight to the point. I say, just start out with the playoffs, which are the only games actually on national TV in the first place.
5) Winter. Being this is the first Friday Five in December, it’s time we talk about how cold it is getting. There is no reason to have a whole season for cold weather. I think you can cram everything into one week and we would all be happier. Christmas, Hanukkah, New Year’s, and one big snowstorm for winter sports enthusiasts. That’s all that is really necessary. Get that groundhog out here as early as possible please.
And so ends another edition of the Friday Five. I hope I didn’t hurt too many people’s feelings this time. On behalf of all us here at Lawline.com, have a safe and happy holiday season.
Weekly Attorney Malpractice Update Posted: December 6th, 2007 By: Andrew Bluestone, Esq. Category: Attorney Malpractice, SHOWCASE CORNER, The News Beat
Cases This Week in Legal Malpractice
1. Duffy-Duncan v. Berns & Castro,2007 NY Slip Op 9493, 1st Dept, 11/29/07
Summary judgment denied and affirmed. Attorney had failed to serve a notice of claim on a Transit Authority ice patch slip and fall. Summary judgment denied for failure to demonstrate that the TA had a lack of notice of defense or a storm in progress defense. This case is notable for the Appellate Division not taking the defenses at face value.
2. Asher v. Shimbaum, 2007 Slip Op 9351, 2d Dept, 11/27/07
Plaintiff’s underlying action was commenced to enforce an oral contract between brother and sister to convey real property. Legal malpractice case is dismissed on the inability to prove the “but for” case: that plaintiff would have succeeded in the underlying action.
3. 3-Mar Service Center, Inc. v. Mahoney, Connor & Hussey, 2007 Slip Op 9363, 2d Dept, 2007
Motion to dismiss granted in Supreme Court but reversed in Appellate Division. The decision does not give facts, but this was a successive [or even a third] motion to dismiss, after an earlier appeal.
4. Olaiya v. Golden, 2007 Slip Op 9377, 2d Dept, 2007
Plaintiff loses his job at the NYC Department of Juvenile Justice, but cannot demonstrate that the attorney’s conduct was the proximate cause of his job loss.
Stories This Week in Legal Malpractice
Legal malpractice, the First Amendment and a blogger got tangled up in a New Jersey case. The underlying case concerns the Town of Manalapan and a land deal. Legal malpractice litigation ensued. Of interest here, an anonymous blogger has started writing about the case, and his internet provider is now being pursued for information about the blogger. Electronic Frontier Foundation is now defending its subscriber. “da truth squad.”
The law firm of Dorsey & Whitney and Judge Harold Baer of US District Court are in a battle over “declining civility in the legal profession.” Judge Baer recently wrote a 129 page decision with a discussion of “naked competition and singular economic focus of the marketplace have begun to infiltrate the practice of law, subordinating the high standards of service, collegiality and professionalism as a result.” So far, not so unusual. The story takes a new turn with the attorney’s response. Kristan L. Peters said: “It is hard to take seriously Judge Baer’s alleged concern for professional courtesy when he continues to treat women litigators like second class citizens in his court room, requires attorneys to physically oversee the return of documents in another country within a matter of hours when they are oversees on their anniversary, and sets depositions on Sunday mornings. Indeed, when a Catholic lawyer asks for the opportunity to attend church before the Sunday deposition, he mocked the attorney for Catholic observance.”
Finally, the Dicky Scruggs story. Bribery? Big Tobacco litigation? Legal malpractice? This story is still unfolding.
In a continuing effort to help lawyers learn how to better market their websites and increase their online presence, Lawline.com has created a video series of how-to guides. Part 3 of Lawline.com’s series is entitled An Intro to Google Adwords. In the following video we discuss the importance of Adwords and some of the basic things you can do to get started.
Google has many services that they offer to help businesses and consumers alike. Their services cover everything you can think of that make the online experience simpler and more enjoyable. Google Adwords is certainly one of the most important programs they run. It is their main source of revenue and it continues to grow every year because people can see the results.
Running an advertisement on Adwords is so easy it’s no wonder the idea is spreading like wildfire. For lawyers, placing these ads with Google can do a number of things to help you stand out from other lawyers and law firms out there. It can place you on the first page of Google searches, which is more important now than ever before as people are shifting to the web as a way to find everything they need. They also help you target specific regions and keywords so you can show your ad to all the right people. And the best thing about it is that the service costs only the amount you choose to spend. You can set daily budgets as low as you want.
Please enjoy the video below, and to get started with Google Adwords you can visit the website: http://www.adwords.google.com.
Negotiation Strategies and Considerations Posted: December 4th, 2007 By: Zach Heller Category: Business Development Skills, CLE Programming, Lawline.com, Lawyer Profiles, SHOWCASE CORNER, Videos
Alan Schnurman has been practicing the art of negotiations for 37 years as a Personal Injury Lawyer. He has been involved in many different types of negotiation s and has perfected a few simple rules to achieve success. He shares those rules as well as additional tips in his one hour CLE lecture on Lawline.com entitled, Negotiation Strategies from the Plaintiff’s Side. In the video below, Alan previews the course and discusses the major things to consider for every negotiation.
The most important thing to remember is that when parties are negotiating, everyone wants to resolve the issue or case at hand. You have to establish yourself as credible, and working towards a solution. This does not mean that you have to be too agreeable that you give up your position, but you have to establish a rapport with the other party so negotiations can move forward and reach a middle ground.
It is your job as an attorney to reach a resolution that is cost efficient and effective for your client. You learn the tips and techniques needed to be successful through years of practice and experience. And though every negotiation varies in format and matter, there are certain things strategies that you can employ in every negotiation. If you do not perfect these techniques than the outcome of a negotiation is more likely to wind up in favor of the opposing party.
Please enjoy the short video below with Alan J. Schnurman and check out his program on Negotiations in the Lawline.com Course Catalog.
