Former NBA referee Tim Donaghy was sentenced to 15 months in prison yesterday for gambling on NBA games.  The sentence is no surprise, despite the fact that Donaghy cooperated with government officials throughout the entire process.  Two other defendants involved both got at least one year in prison for their roles in aiding Donaghy.

“In deciding her sentence for Donaghy, U.S. District Judge Carol Amon assessed the extent to which Donaghy actively ‘chose’ to commit crimes,” reported SI.com.  The main defense from Donaghy’s attorneys was that his addiction to gambling impaired his judgement.  They said that he did not willingly bet on games that he was involved in, the equivalent of pleading temporary insanity in a murder trial.

In the end, the severity of the crime won out.  The NBA insisted that this sentence, along with the many new practices they have put in place for hiring and training officials will severely cut down the likelihood of something like this happening again.  Only time will tell if this is the end of the NBA’s betting problems, but this was a giant step forward for the league.

Q&A with Keith Jones, Computer Forensic Expert Witness and Senior Partner of Jones Dykstra & Associates (www.jonesdykstra.com)

Topic: How can lawyers successfully select and work with a computer forensic expert witness?
 
Q: How can lawyers find a qualified computer forensic expert witness?

Keith Jones: Legal professionals can employ many different methods for finding an expert witness in the field of computer forensics.  Many people claim to be computer forensic experts, but they do not have enough knowledge or experience to provide iron-clad testimony, should the need arise. 

Asking for referrals from a trusted source is usually the best way to find a quality person.  Realize that you are hiring an individual expert, so even though the company you’re hiring has a great reputation, be sure you know the credentials and background of the specific person who will work on your case. 

Once you have a few candidates, do your own research on those potential experts – verify their resume and background.  Remember that opposing counsel will be doing their homework on this, in an effort to possibly discredit your witness. 

In addition to having impeccable credentials as an expert witness, the computer forensic specialist should also have excellent communication skills.  If the case goes to trial, he or she will need to effectively explain complicated technical subjects to judges and juries that may have had  no prior technical training.

Q: What kinds of credentials and certifications should a lawyer look for in a qualified computer forensic expert?

Keith Jones: Legal professionals should inquire about whether the individual (not company) that they are considering as an expert has at least one or more the following non-product-oriented certifications:

- Certified Information Systems Security Professional (CISSP)
- International Society of Forensic Computer Examiners (ISFCE) Certified Computer Examiner (CCE)
- Certified International Information Systems Forensics Investigator (CIFI)

Also, lawyers should be aware of the following forensic software packages, which are often used to properly collect and preserve electronic evidence. 

- EnCase® by Guidance Software.
- The Forensic Toolkit® (FTK)
- ProDiscover®
- X-Ways Forensics

Note that training certifications on the above products do not automatically qualify someone as a computer forensics expert.  They only mean that the person has gone through the training course and passed the exam that was created by the vendor.  The expert’s previous testimony record and other “in the field” computer forensics experience are often more valid points for evaluation.

Q. What should a lawyer be vigilant about when working with a computer forensic witness?

Keith Jones: The most damaging thing to a lawyer/expert witness relationship is the possibility of miscommunication.  The attorney and the expert need to be on the same page when it comes to which pieces of information are important, and which are less so.  The legal professional needs to challenge the expert as much as possible and ask bold questions to pull out the salient points and expose vulnerabilities.  This leads to fewer gaping holes that opposing counsel can exploit to discredit your client and your witness. 

Also, remember that many criminal investigations result from low-profile administrative or civil disputes.  Therefore, all electronic evidence must be handled with the utmost care and attention, in case the data becomes relevant on a much more serious level.  The legal professional would be strongly advised to keep copies of evidence inventory and chain of custody documentation.  Failure to handle evidence properly can be a damaging or fatal blow to your client’s future case down the line, if not during the matter at hand.

Q:  At the outset of working on a case, what should the attorney provide to the computer forensics expert in terms of information, direction and guidance?

Keith Jones: It’s a fine line. Usually when an expert starts a case, he or she doesn’t want to know too much to reduce any question of bias. If the attorney is bringing a case to trial, he or she already believes his side of the story.  If somebody is accused of stealing something, then the attorney already believes that the crime did occur.  The expert cannot allow him/herself to be convinced of any such conclusion prior to examining the evidence, so the lawyer must be careful not to attempt to persuade the expert prior to the investigation.

Computer forensic experts need to examine electronic evidence in an unbiased manner.  The lawyer needs to give them just the most essential information, so they don’t get biased, but so they can ask pertinent and probing questions.  If the lawyer gives the expert too much information, that can work against you.  As an expert, though you want to know the whole story, you have to decide what you absolutely need to know, and what you don’t really need to know.

Q. You've served as a computer forensic witness on many high-profile cases, including US v. Duronio.  How did you effectively communicate highly technical information to the jury?

Keith Jones: The Duronio case was very complicated in terms of explaining computer logs and showing how data got from point A to point B.  I had to walk the jury step by step to show how the defendant placed a “logic bomb” of malicious computer code inside the computers of his employer (Paine Webber).  I had to explain the basics of how a computer functions to show how I figured out that the digital bomb was placed on the company’s IT system by Mr. Duronio.  A computer forensic witness often needs to explain very simple things like that, even though they may seem obvious.

In this case, I had to go a lot further and prove that what I was saying was true, even when the defense was calling it untrue.  Experts need to be able to break down the information to a digestible form that can be understood by the jury.  Also, they must be prepared to back up their statements, even when questions come from an unexpected or contradictory direction.

Q: What are the primary keys to a successful attorney/expert witness relationship?

Keith Jones: First, the lawyer and the expert witness need to acknowledge that they come from completely different backgrounds.  The attorney shouldn’t assume that the expert is going to know anything about law, and the expert shouldn’t expect attorney would know anything about computers.  The terminologies and subject matter for both fields are vastly different.

Both need to thoroughly understand what the project entails.  The attorney has to realize that people can’t see electronic data – it’s not a tangible object, it’s abstract.  Therefore, the attorney and witness need to work together to make it “real” for the audience – the judge and jury.

Q: In your experience, what are the most dangerous pitfalls for attorneys when working with an expert witness - what mistakes are made most often?

Keith Jones: The biggest mistake I’ve seen attorneys make is when they hire computer forensic experts who are not the “cream of the crop.”  If the self-proclaimed expert has no college degrees, and just a bunch of certifications from software vendors, that’s pretty hard to defend against when attacked by opposing counsel.  I’ve seen people’s backgrounds explode on them and the attorney who hired them, and I’ve seen “experts” make up their own methodology to do computer forensics without basing it on any proven expertise or approach.

Unfortunately, there’s no universally agreed-upon certification that distinguishes a quality expert from a charlatan.  This is why exclusively using experts who come recommended by credible sources is such an important priority for the lawyer to consider. 

 
Q: In collaboration with attorneys, what ways have you found to effectively communicate and display technical information to judges and juries?

Keith Jones: Any type of visual presentation is good.  However, I’ve seen other experts put up tables and graphs images blown up on poster board and that puts even me to sleep.  Ideally, you want a movie that’s very visual; at minimum, use PowerPoint or something that moves a little bit.  Granted, you can’t do this in every single scenario - it depends on the level of your case.  When I have the ability to use PowerPoint to get our point across, it makes my job a lot easier and my testimony is more easily understood and absorbed.
 

Q.  What concrete steps can an attorney take to maximize chances of success in selecting and working with a computer forensic expert witness?
 
Keith Jones: The #1 thing is that the attorney should get along with and like working with the expert.  See if there’s a personality conflict before you hire the expert. You want the chemistry between you to work when you’re on the stand, so you’re not at cross-purposes during the trial.

Secondly, let the buyer beware when working with large computer forensic firms.  A lot of major consulting companies will do a “bait and switch” – the people that present their credentials to you in the selling phase aren’t necessarily the individuals that will be your assigned experts.  Be sure to ask and investigate who would actually work on your account, so there are no surprises later in the game. 

Lastly, verify people’s backgrounds.   You would be shocked to know what some so-called professionals will fabricate to get the job.  As legal professionals, you are used to doing your homework, so a decision about hiring an expert witness should be subject to the same kind of scrutiny and due diligence that you bring to your substantive legal work.

Judiciary Law 487 in the Second Circuit and the Court of Appeals

Judiciary Law 487 is a statute which defines a misdemeanor and creates a private cause of action, with treble damages, §487. Misconduct by attorneys.

An attorney or counselor who:
1. Is guilty of any deceit or collusion, or consents to any
deceit or collusion, with intent to deceive the court or any party; or,
2. Wilfully delays his client's suit with a view to his own
gain; or, wilfully receives any money or allowance for or on account
of any money which he has not laid out, or becomes answerable for,
Is guilty of a misdemeanor, and in addition to the punishment
prescribed therefor by the penal law, he forfeits to the party injured
treble damages, to be recovered in a civil action.

In Amalfitano v. Rosenberg the Second Circuit has certified several questions to the New York Court of Appeals.  The case is well worth reading, not only for the telenovela aspects of brother v. brother, and the unraveling of a family fortune through corruption and self-dealing, but for the discussion of Judiciary Law 487 litigation in New York.  

For the most part, liability under this statue is nor covered by insurance, and while pro missing significant awards, has been the stepchild of legal malpractice here.  

The two questions are "Can a successful lawsuit for treble damages brought under N.Y. Jud. Law 487 be based on an attempted but unsuccessful deceit upon a court by the defendant?" and
"In the course of such a lawsuit, may the costs of defending litigation instituted by a complaint containing a material misrepresentation of fact be treated as the proximate result of the misrepresentation if the court upon which the deceit was attempted at no time acted on the belief that the misrepresentation was true?"

An Amusing Way out of Legal Malpractice Litigation

The California Blog of Appeal discusses this amusing attempt by a target attorney to get out from under a legal malpractice case. Styles v. Mumbert is a California case in which...well, let Greg May describe it:
"You represent the defendant in a lawsuit. You don’t have time to handle his case — indeed, you admit as much on the record — and the court imposes terminating sanctions against your client for failing to respond to discovery. Because of your admission, your client is allowed to obtain new counsel, but new counsel is unsuccessful in getting the sanctions order vacated, and a default judgment of $730,000 is entered aganist your client, who then promptly sues you for malpractice and, while that suit is pending, appeals the default judgment. What do you do, besides give notice to your malpractice carrier? 

If you’re the defendant’s first attorney in Styles v. Mumbert, you get the plaintiff in the original case (Styles) to assign her default judgment to you (for some undisclosed consideration), then, represented by another lawyer in your firm, you move the court of appeal to substitute you in as respondent in your former client’s (Mumbert’s) appeal from that judgment. The court of appeal resists the invitation, concluding the opening paragraph of its opinion thus: ”Finding that the proposed substitution violates multiple rules of Professional Conduct as well as the Business and Professions Code, we will deny the motion.” 

The absurdity of the possible outcomes! The court says it much better than I could: 

If we allowed [attorney] Pagkas to substitute himself as respondent, in place of Styles, on appeal Pakgas would have to argue that the default judgment, for which he may be professionally responsible, should be reversed. He would argue that the appeal should fail, so that he could collect on the default judgment. This is directly contrary to Mumbert’s interest. While a reversal here would be to Pagkas’s absolute benefit in the legal malpractice action, reducing any potential damages for professional negligence owed to Mumbert, Pagkas appears to prefer the prospect of collecting the large default judgment from Mumbert. In fact, if the substitution were allowed, it is conceivable that Pagkas could prevail in both the malpractice action and in this appeal, leaving him with huge windfall at the expense of his former client. Pagkas’s disregard for his ongoing fiduciary duties to his former client in favor of his own personal gain is without precedent. 

Unsurprisingly, Mumbert asked for sanctions for having to oppose the motion, and got them.

Ethical Violations Doom Attorney's Fee in Legal Malpractice

Plaintiff retained a big name matrimonial firm to represent her.  Then she hired a legal malpractice firm to sue the matrimonial firm.  The legal malpractice case was dismissed.  Apparently she did not want to pay the legal malpractice firm who moved for a quantum meruit fee hearing.

In 2008 NY Slip Op 5647,  Eileen DeGregorio, appellant, v Joel C. Bender, et al., defendants; Curtis & Associates, P.C., nonparty-respondent. (Index No. 993/02) 

"Plaintiff client appealed a judgment by the Westchester County Supreme Court (New York) that awarded nonparty law firm an attorney's fee based on quantum meruit. 

In an action to recover damages for legal malpractice, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Friedman, J.H.O.), entered October 20, 2006, which, after a hearing, and upon a decision of the same court dated September 28, 2006, awarding the nonparty, Curtis & Associates, P.C., an attorney's fee based on quantum meruit, is in favor of Curtis & Associates, P.C., and against her in the total sum of $ 94,017.70. 

ORDERED that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith, including a new hearing and determination before a different Judicial Hearing Officer. 

In December 2001 the appellant retained the nonparty, Curtis & Associates, P.C. (hereinafter Curtis), to represent her in the instant legal malpractice action against her former matrimonial [**2] attorney. In February 2004 the underlying complaint in the legal malpractice action was dismissed by decision and order of this Court (see DeGregorio v Bender, 4 AD3d 384, 772 N.Y.S.2d 89). Thereafter, the Supreme Court granted Curtis' motion for a quantum meruit hearing to determine the fair and reasonable value of the legal services rendered to the appellant. Following the hearing, the court awarded Curtis legal fees in the sum of $ 94,017.70. We reverse. 

HN1In fixing an award of legal fees in quantum meruit, the court should consider "evidence of [*2] the time and skill required in that case, the complexity of the matter, the attorney's experience, ability, and reputation, the client's benefit from the services, and the fee usually charged by other attorneys for similar services" (Rosenzweig v Gomez, 250 AD2d 664, 672 N.Y.S.2d 907; see DR 2-106[B] [22 NYCRR 1200.11(b)]). HN2An award in quantum meruit should be made after weighing all the relevant factors (see Padilla v Sansivieri, 31 AD3d 64, 65, 815 N.Y.S.2d 173). Here, the hearing court failed to consider and give appropriate weight to all the relevant factors involved in valuing legal services, including the court's own finding of ethical violations committed by Curtis. "

More Conflict of Interest in a Penn Legal Malpractice Case

The Times Leader reports on a $ 3.4 Million legal malpractice action taking place there, now, post verdict.  The twist is that the winner of the case, executor of an estate had asked the trial judge to recuse himself because of financial conflict of interest.

"Attorneys for the Slusser family have asked Luzerne County Court to deny a petition filed by attorneys for Laputka, Bayless, Ecker and Cohn that seeks to overturn a $3.4 million legal malpractice judgment against the law firm.

In court papers filed Monday, attorneys Stephen Seach and Jonathan Lang of the Robert Powell law firm said that state law orders the judgment should stand.

Because the petition “lacks merit” court papers said, the judgment should be final and “not be subject to reconsideration,” according to state law.

The case has since been sent to the state Supreme Court, which will assign a judge outside Luzerne County to hear any further matters in the case. Court Administrator William Sharkey filed papers last week asking for the move.

A spokesman for the state Supreme Court said a judge has not yet been assigned.

The Slusser family sued the Laputka firm in 2000, alleging the firm was negligent in its handling of its estate.

In February, a jury awarded Bernadette Slusser, executor of the estate of Thomas Slusser, $3.4 million.

The ongoing civil case has received much attention since Philadelphia attorney Jeffrey B. McCarron of Philadelphia accused Luzerne County Court of Common Pleas Judge Mark Ciavarella of having a conflict of interest in the case.

McCarron said Ciavarella’s financial relationship with a company partly owned by Luzerne County Prothonotary Jill Moran, an attorney with the Powell law firm, calls into question his ability to impartially rule on the case.

Ciavarella has since recused himself from the case.

Sometimes An Expert is Not Necessary in Legal Malpractice

This case from New Jersey illustrates the border line between behavior that is so bad that an expert is not needed at trial to testify on whether there was a deviation, and behavior that is bad, but still requires an expert. The NJ court found in TARUTIS, v. ALAN ACKERMAN and GREGORY WISOTSKY, that:

"No expert is needed "where the questioned conduct presents such an obvious breach of an equally obvious professional norm that the fact-finder could resolve the dispute based on its own ordinary knowledge and experience and without resort to technical or esoteric information." Brach Eichler, supra, 345 N.J. Super. at 12. For example, no expert testimony was required when the attorney entirely failed to submit a legal argument in his client's defense, Sommers v. McKinney, 287 N.J. Super. 1, 8-12 (App. Div. 1996), or where the attorney failed to comply with the controlling statute of limitations, Brizak v. Needle, 239 N.J. Super. 415, 429, 431-33 (App. Div.), certif. denied, 122 N.J. 164 (1990). "

But, where the defendant attorney "did not retain an expert to testify to the coefficient of friction of the floor, nor did he propound interrogatories, depose any witnesses, request documents, or request admissions from Resorts" the legal malpractice client still needs an expert to testify that the attorney was negligent.

Waiving Arbitration in Legal Malpractice

Arbitration clauses in attorney-client retainer agreements is a trend.  Law firms, who presumably know the costs and efficiencies of litigation choose arbitration in the belief that most cases they are involved in will be a fee dispute.  Legal malpractice, either as a counterclaim to a fee demand or on its own does sometimes intrude, however.

Here is a case from the Illinois Appellate Lawyer  Blog which shows how to waive the advantage obtained by an arbitration clause:
"Jeffrey Woods and three associated parties had a dispute with the Patterson Law firm. The law firm claimed Woods et al. owed $47,000 for legal fees; Woods claimed the law firm committed legal malpractice. The law firm sued for the fees, but voluntarily dismissed its case. Woods then sued for malpractice.

In the malpractice case, the law firm raised an affirmative defense that its agreement with Woods required arbitration of “[a]ny controversy, dispute or claim arising out of or relating to our fees, charges, performance of legal services …” But the firm also made two motions to dismiss the case, filed a demand for a bill of particulars, served interrogatories on plaintiff, and issued a subpoena for documents to a third-party.

After all that, the firm asked the court to compel arbitration of the dispute. The trial court ruled that the law firm waived its right to compel arbitration because it participated so heavily in Woods’s lawsuit. The law firm appealed the denial of its attempt to compel the arbitration.
The appeal was pursuant to Illinois Supreme Court Rule 307(a), which permits interlocutory appeals as of right from an order granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction. The First District Illinois Appellate Court ruled that “a motion to compel arbitration is analogous to a motion for injunctive relief," and that the standard of review is “abuse of discretion.”

Legal Malpractice Suit After a Release

Plaintiff wanted to sue his opponent's attorneys. While the ability to sue your opponent's attorney is very restricted, [see: lack of privity}, in certain circumstances it is possible. This case:

Blum v Perlstein
2008 NY Slip Op 00439
Decided on January 22, 2008
Appellate Division, Second Department

appears to stand for the proposition that plaintiff had no legal malpractice case against the defendants, who were not his attorneys. Supreme Court dismissed that aspect of the case, and the Appellate Division agreed. However, the AD went on to dismiss the non-legal malpractice portions, which included breach of fiduciary duty, on the basis that a release of the original defendant in the case, and his "agents" included a release of the attorneys.

"the defendants demonstrated that the allegedly improper conduct that they engaged in, which predated a general release that the plaintiff executed before he commenced the instant action, came within the ambit of that release. The defendants also demonstrated that the release applied to them, as they represented the releasee, and the plaintiff discharged the releasee and its "agents" from liability (see Berkowitz v Fischbein, Badillo, Wagner & Harding, 7 AD3d 385, 387; Argyle Capital Mgt. Corp. v Lowenthal, Landau, Fischer & Brings, P.C., 261 AD2d 282)."

Morris J. Eisen Legal Malpractice Case Proceeds

He was one of the best known, and feared plaintiff's attorneys in New York.  He had entire floors of offices at the Woolworth building in lower Manhattan, and early every morning a large number of trial attorneys would gather for breakfast and pick up their day's work.  The Eisen and Napoli firm won gazillions of dollars in verdicts until it all ended.
Eisen has been pursuing a legal malpractice case against his own former attorneys for years, and yesterday the Court of Appeals gave it a green light to continue. 

The NYLJ reports:  "The Court of Appeals yesterday revived a legal malpractice suit against law firm Larossa, Mitchell & Ross over its representation of a personal injury lawyer found to have defrauded New York City by fabricating evidence in tort cases.

The suit, which was previously dismissed because Larossa's ex-client was in dissolution, cannot now be barred on res judicata grounds against a successor firm, the court ruled.

The case stems from the travails of the law firm Morris J. Eisen PC. Once one of the New York's top personal injury firms, the firm was accused by the city of falsifying evidence in a 1986 civil suit. Seven lawyers and investigators for the firm, including Morris J. Eisen, were subsequently targeted by federal prosecutors in Brooklyn and convicted on Racketeer Influenced and Corrupt Organizations Act charges in 1991.

Mr. Eisen had been represented in the criminal case by James M. Larossa, and the Larossa firm also represented the Eisen firm in the civil suit by the city. Eisen first tried to bring a legal malpractice suit against Larossa after a court granted partial summary judgment to the city on its fraud claims. The city was awarded $2.1 million.

The suit claimed Larossa did not adequately oppose the city's summary judgment motion, failing to present evidence that would have shown that, notwithstanding any false testimony, the city was actually responsible for the injuries in the cases at issue.

When it comes to legal public relations, attorneys often confuse editorial with advertising, and assume that media relations is only an effective tool for high-profile litigation cases. This lack of understanding of the role of public relations in law firm marketing has resulted in small law firms missing out on dozens of opportunities for rainmaking and building their book of business. The truth of the matter is that public relations is fundamental to increasing visibility and building credibility in your target market and therefore is at the heart of every good marketing plan.

Some common reasons attorneys cite for not incorporating public relations  are not having enough time, a lack of understanding of its role, or the dearth of resources to make public relations part of their business development plans. Coupled with stereotypes of the press, such as reporters’ interest lying with big law firm news or their only wanting the drama and not the facts, and the cynicism reporters have towards attorneys, it’s no surprise that media relations is frequently relegated to the bottom of business development activities, particularly if the firm has already achieved some “visibility” that did not result in new clients. 

Paramjit L. Mahli of The Sun Communication Group is a former journalist who has worked with international news organizations including CNN Business News, and now helps small to mid-sized law firms increase their visibility, build their reputation and helps them grow their business by using public relations. To get the entire report FREE “ How To Get A Reporter’s Attention Without Losing Your Shirt!” Sign up at http://www.suncommunicationsgroup.com/subscribe.html