Archive for January, 2012


The Abusive Litigation Seminar Is Coming

Expenses of litigation - the toll for justice

Various trends have made the risk of losing in litigation more than mere disappointment.  Litigation is more expensive than ever, litigants are seeking more ways to recover their payment of litigation expenses, and legislation has provided additional methods of recovering attorney fees for frivolous litigation (among other theories).  Thus, litigators have an increasing need to stay abreast of such rules. 

In early February, attorneys all over Georgia anxiously await the annual Abusive Litigation Seminar

The speakers includes well known attorneys in the professional liability bar, including the Presiding Frank Beltran and Charlotte Perrell, and HPTY attorneys Christine Mast (OCGA 9-15-14) and Kim Jackson (OCGA 51-7-80).  The speakers also includes many repeat speakers, with all of the attorney speakers spending at least 10 years speaking in this CLE program, including the aforementioned and James Penland and his outstanding program on OCGA 13-6-11 and Hugh C. Wood who addresses various fee shifting rules.

The program includes presentations by Robert Benham, Justice of the Georgia Supreme Court; J. D. Smith, Justice of the Georgia Court of Appeals; and T. Bedford Jackson, Judge of the Fulton County Superior Court.

Another large turnout is expected at this popular CLE program.  If you have not seen this CLE, or if you need a refresher course, sign up now here.



Oral Argument in Johnson v. Liebel

In an important legal malpractice appeal before the Georgia Supreme Court, Hawkins Parnell Thackston & Young, LLP’s Christine Mast told it how it was.  Rich Harris represented the plaintiff, Dr. Johnson.

Christine Mast and Joe Wieseman following today's oral argument.

See the oral arguments here.

Read about the case here.


Supreme Court to hear important legal malpractice case Tuesday, Jan 24, 2012

Hawkins Parnell Thackston & Young, LLP attorney Christine L. Mast will be arguing the appeal of Johnson v. Libel before the Supreme Court of Georgia. 

In Johnson, the claim was a typical “case within the case” legal malpractice claim.  Thus, the jury had to decide that the standard of care was breached, and also had to find that the case within the case – the underlying discrimination claim – was valid and what it’s value was. 

Christine L. Mast, Esq.

Under such circumstances, it is proper for the plaintiff to use an expert to opine that the attorney breached the standard of care and put up evidence that would be sufficient to allow the jury to rule in plaintiff’s favor in the underlying case.  During the legal malpractice trial (handled by a different law firm), the trial court allowed the expert to go even further.  Plaintiff’s expert was permitted to testify about the strength of the evidence in Plaintiff’s favor.  The expert was permitted to testify that certain witnesses were unbiased and commented on the evidence in several particulars.  The witness even opined on how the jury in the underling case would have ruled had it heard the evidence at a trial.  That same evidence, however, was presented to the jury in the legal malpractice trial, as it would have been in the underlying case.  This evidence was permitted under the guise of proximate cause. 

The Court of Appeals upheld the use of the evidence under the rationale that an expert may testify about the legal complexities of a legal malpractice case.  The Court did not address the fact that the underlying case would have been tried without a lawyer to testify about how they jury should rule on the same legal complexities.  Instead, the hypothetical jury of the underling case would have simply issued a verdict on the evidence and the Court’s instructions.  Christine Mast will urge the Supreme Court of Georgia to reverse the Court of Appeals and order a new trial with proper evidentiary instructions.

The appeal addresses the very scope and role of expert evidence in the standard case within a case legal malpractice claim. 

The confusion in the lower courts arose from a poorly written Pattern Jury Charge on legal malpractice.

A client suing his/her attorney in a case not only must prove by expert legal testimony that the claim was valid and would have resulted in a judgment in the client’s favor, but also that the judgment would have been collectible in some amount, for therein lies the measure of damages.

(Emphasis added.)  The charge does not appear to be an accurate statement of Georgia law, especially in a “case within the case” legal malpractice claim.  No Georgia case states the law the way the jury charge is written.  The charge cites two cases:  Riddle v. Driebe, 153 Ga. App. 276 (1980), and Hughes v. Malone, 146 Ga. App. 341 (1978).  In Riddle, the word expert is not even mentioned in the opinion. The Court of Appeals in Hughes discussed the use of experts in malpractice cases only to establish the parameters of acceptable professional conduct, i.e., the standard of care.  Hughes, 146 Ga. App. at 345.  Hughes mentions nothing to support the charge that an expert must opine on whether the underlying claim would have been successful (actually, it suggests the opposite).  The charge is probably the result of a similarly worded charges in medical malpractice cases where experts must opine on how the medical outcome would have been different had the malpractice not occurred.

In certain types of legal malpractice cases, expert evidence addressing proximate cause may be appropriate.  For example, the failure to include a certain type of clause in a contract and the legal impact of what the proper clause would have done for the plaintiff may be an example of how a legal malpractice expert could testify on proximate cause.  The case within the case form of legal malpractice, however, is not an appropriate case for allowing an expert to opine on how the underlying case would have been different had the malpractice not occurred.  It is the duty of the jury to rule on the merits of the underlying case by listening to the evidence that would have been presented absent a breach of the duty of care.  If an expert would not have been permitted to testify in the underlying case on how the case should have been decided, no such testimony should be presented in the legal malpractice case.

The oral argument by Christine Mast is an important case for the clarification of legal malpractice jury charges and the scope of expert testimony.  Cases of this magnitude, especially in the professional liability arena, are often handled by Hawkins Parnell Thackston & Young, LLP attorneys.


Houston … We Have A Problem – Again

Frank J. Beltran

Lane Young

It is time for the second “Houston … We Have a Problem:  Not Your Typical Legal Malpractice Seminar.” 

This legal malpractice program was created by the Professional Liability Section of the State Bar of Georgia.  The seminar will take place on Thursday, January 26, 2012 at the State Bar of Georgia.

Presiding are Charlotte Perrell, Frank J. Beltran, and HPTY’s H. Lane Young, II and Kim M. Jackson.

The seminar will follow the successful format of last year’s program, mixing standard presentations and panel discussions with role-playing segments of a legal malpractice trial based on various hypothetical scenarios plucked from some of Georgia’s most interesting legal malpractice cases.

Charlotte Perrell

Kim M. Jackson

This seminar is a perfect seminar for various types of attorneys, including the following:  (1) lawyers that wish to avoid legal malpractice, (2) lawyers that practice in the area of legal malpractice, (3) lawyers that commit legal malpractice and need to know what to do, and (4) all other lawyers.
Don’t hesitate – sign up now and enjoy the best legal malpractice seminar in the history of Georgia.


Utah limits marketability of law students

At least, that might be the perspective of the law students.

That's it - addicted to computer based research tools!

The Utah State Bar has issued ethics advisory opinion 11-03 that reaches the following conclusions:

A lawyer who encourages or participates in a law student’s violation of the student’s contractual obligation to the electronic research service violates the Rules of Professional Conduct.

The opinion makes two assumptions that may in certain circumstances be subject to debate: (1) that a student that uses free access to Westlaw or Lexis while working for a private firm is acting in violation of his or her agreement with that entity; and (2) the hiring attorney knows or encourages the students use of the free research access.

An opinoin like this has to date been limited to the Utah State Bar, but the principles are not difficult to imagine being applied under any state’s bar rules.  I have always assumed that the reason Westlaw and Lexis gave law students free access to their research tools was to create dependence by the law student – much like the free samples that a dealer gives to the potential addict.  Thus, I do not think that Westlaw and Lexis really mind when a law student becomes more reliant on their products prior to leaving law school. 

In any event, govern yourself accordingly.

Kim Jackson Cleans Up The Mess

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