Breach of the Standard of Care Must be the Proximate Cause

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Richard Sharif (“Sharif”) sued his former attorney, William Stevens (“Stevens”), for legal malpractice in an underlying matter.  He alleged that Stevens failed to comply with discovery and failed to properly raise arguments that would have resulted in a more favorable outcome.  The United States District Court for the Northern District of Illinois ruled in Stevens’ favor on all counts.  With respect to discovery, Sharif accused Stevens of not producing documents that Sharif tendered to him.  Here, the District Court held that Sharif was actually to blame because he “did not give Stevens certain documents that should have been given to him.”  Id. at 3.  As to whether Stevens should have raised a particular argument, the Northern District found that Stevens had violated the standard of care owed to Sharif.  However, the District Court still had to consider whether the court in the underlying matter “would have decided […] differently had the issue been properly raised.”  Id.  at 5.  This is because a successful claim for malpractice requires that a plaintiff establish “but for the negligence of the attorney, the plaintiff would not have suffered actual damages.”  Id. at 2.  On that point, Sharif made “no argument that a reasonable court would have made a different decision.”  Id. at 5.

Stevens v. Sharif, No. 15 C 1405, 2019 WL 4862171 (N.D. Ill. Sept. 30, 2019)

(This is for informational purposes and is not legal advice.)


Legal Malpractice Requires Causation and Damages

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McHenry Savings Bank (“MSB”) sued attorney Michael Cortina and his law firm, SmithAmundsen (“Defendants”), for legal malpractice arising from their representation of MSB in an unsuccessful foreclosure action.  The trial court granted Defendants’ motion to strike and dismiss.  The Appellate Court of Illinois, Second District, affirmed.  With respect to alleged pretrial errors, it explained that “a trial was held in the foreclosure case” and so “it cannot be said that, but for Cortina’s alleged negligent pretrial conduct, MSB lost its case and suffered damages.”  Id. at ¶ 36.  As for any errors during the trial, the Appellate Court held that the Foreclosure Court’s basis for granting judgment against MSG was “legally unsound,” meaning “Cortina cannot be held accountable.”  Id. at ¶ 42.  Even if causation could have been shown, the Appellate Court explained that no damage resulted since MSB would be “seeking damages from defendants that it was never entitled to due to mortgagors’ discharge in bankruptcy.”  Id. at ¶ 51.

McHenry Sav. Bank v. Cortina, 2019 IL App (2d) 180901-U

(This is for informational purposes and is not legal advice.)

Counsel Cannot Claim Judicial Error if Client is not Properly Informed of His Rights

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Iurii Rypninskyi (“Rypninskyi “) and Joseph Hope (“Hope”) were involved in a vehicular accident.  Hope sued Rypninskyi for negligence in Illinois state court.  American Inter-Fidelity Exchange (“AIFE”), the insurer for the owner of the truck Rypninskyi was driving, agreed to defend Rypninskyi and retained the law firm Cassiday Schade to do so.  Throughout the discovery phase and the subsequent trial, Cassiday Schade had repeated trouble contacting Rypninskyi and ensuring his presence.  Rypninskyi did not even appear at trial to testify.  Id. at 1.  The trial court sanctioned him for this by ordering in limine that he could not introduce a report prepared by the trooper who had responded to the accident or Hope’s statements to the trooper.  When the trial court found that Rypninskyi, through Cassiday Schade, violated that order, it entered a default judgement against him as to liability.  Id.  The jury then returned a $400,000 verdict for Hope, but Cassiday Schade did not file an appeal.  Rypninskyi sued Cassiday Schade for legal malpractice, arguing that their failures had caused him not to appear at trial and suffer the judgment against him.

Cassiday Schade moved for summary judgment, invoking the “judicial error” doctrine.  Id. at 2.  They asserted that the trial court had erred in defaulting Rypninskyi as to liability, and that its error was an intervening cause “that severed the causal connection between its alleged malpractice and Rypninskyi’s injury.”  Id.   The Court rejected this argument, pointing out that “had Rypninskyi known about the judgment, he would have asked Cassiday Schade to appeal it.”  Id. at 1.  This indicated that Cassiday Schade had not kept Rypninskyi apprised of the progress of his case.  Having failed to inform Rypninskyi that there was a judgment against him that warranted reconsideration, the Court found that “Cassiday Schade was responsible for failing to appeal.”  Id. at 2.  It explained that “where an allegedly negligent attorney elects not to appeal a judgment that the attorney contends resulted from a judicial error, the attorney may not invoke judicial error as a defense to the client’s malpractice claim.”  Id.

Am. Inter-Fid. Exch. v. Hope, No. 17 C 7934, 2019 WL 4189657 (N.D. Ill. Sept. 4, 2019)

(This is for informational purposes and is not legal advice.)

No Malpractice Causation if Client Can Remedy Attorney’s Misconduct

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In 2001, Multiut Corporation (“Multiut”) sued Mariam Draiman (“Draiman”), her husband, and five corporations that they owned or controlled.  Count V of the complaint was directed against all defendants except Draiman.  Attorney Glenn Seiden and his firm, Glenn Seiden & Associates, P.C. (together “Seiden”) initially represented each defendant.  The circuit court found in Multiut’s favor on Count V and awarded attorneys’ fees and costs thereunder against “defendants” without excluding Draiman.  Id. at ¶5.  Multiut then filed a petition for attorneys’ fees and costs in February, 2003, to which Seiden responded.  At no point did Seiden argue that Draiman was not subject to the petition, since Count V was not directed at her.  The circuit court issued an order drafted by Multiut’s counsel awarding attorneys’ fees “against defendants.”  Id. at ¶7.  Two weeks later, Seiden filed a motion to clarify, but again failed to raise the issue.  Seiden then filed a notice of appeal “on behalf of all defendants” in August, 2003, and withdrew its representation shortly thereafter.  Id. at ¶8.

Before briefing for the appeal was complete, the First District issued an order sua sponte saying Draiman was “not liable as to [the attorney fee] portion of the judgment” because she “was not named as a defendant below in the count that resulted” in the fee award.   Id. at ¶9.  Draiman’s new appellate counsel then withdrew, at which point she filed her brief pro se.  In it, she failed to argue that the court should reverse the award of attorneys’ fees against her because Count V was not directed at her.  Rather, she asserted inaccurately that the court should reverse all judgments against her because the judgment under Count V “had been reversed.”  Id.  When the First Circuit affirmed the circuit court’s judgment, it found that Draiman’s omission constituted a waiver of any right to contest the fees.

Draiman then sued Seiden for malpractice in March, 2006 for its repeated failure to argue that she could not be liable under Count V and for failure to preserve the issue for appeal.  After multiple cycles of judgment, appeal, and remand, Seiden filed for summary judgment in September, 2017, arguing that the March, 2003 notice of appeal divested the circuit court of jurisdiction, meaning Seiden was not the proximate cause of Draiman’s damages.  Although Draiman disagreed with Seiden’s conclusion, both parties acknowledged that this jurisdictional matter was a legal question to be ruled upon by a judge.  However, the circuit court disagreed, and ordered that the issue be put to a jury.  When the jury found in Seiden’s favor, Draiman filed a motion for a judgment notwithstanding the verdict or a new trial.  The motion was denied, which resulted in the present appeal.

The First District affirmed, readily agreeing with both parties that the question of jurisdiction “should not have been submitted to a jury.”  Id. at ¶40.   As to Seiden proximately causing Draiman’s damages, the court stated that “where a claim or defense is alleged to have been compromised by… an attorney, but the claim or defense is still viable when the attorney is discharged, the attorney is not the proximate cause of any resulting loss.”  Id. at ¶41.  Thus whether the court retained jurisdiction was potentially dispositive, “because if Seiden is correct… then, as a matter of law, he could not have been the proximate cause of Draiman’s adverse ruling.”  Id. at ¶40.  To that point, the First District cited Illinois Supreme Court Rule 304(a):

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. *** In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.”

It added that “upon filing a notice of appeal, the circuit court is divested of jurisdiction… and the jurisdiction of the appellate court attaches instanter.”  Id. at ¶46.  In this case, the circuit court’s February, 2003 order stated that there was no just cause for delay in enforcement or appeal of its ruling with respect to Count V, and Seiden filed a notice of appeal on Draiman’s behalf.  Thus, “to the extent that the circuit court’s award of attorneys’ fees… included Draiman, such an order was void as the circuit court no longer had the jurisdiction to enter such an award against her.  And because a void judgment may be attacked collaterally at any time, the defense was still viable when Seiden withdrew from the case.  Accordingly, Seiden cannot, as a matter of law, have been the proximate cause of Draiman’s loss.”  Id. at ¶47.

Fox v. Seiden, 2019 IL App (1st) 180598-U, appeal pending (Sep Term 2019)

(This is for informational purposes and is not legal advice.)


Jamison v. Goldman, 2018 IL App (1st) 173168-U

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Ismaaeel Jamison (“Ismaaeel”) assaulted multiple passengers on a Chicago city bus.  When police arrived, officers shot and tazed Ismaaeel before arresting him.  The next month, Gloria Jamison (“Gloria”), Ismaaeel’s mother, hired attorney Steven Goldman (“Goldman”) as defense counsel for the criminal charges against her son.  She alleged Goldman also agreed to handle Ismaaeel’s planned civil suit against the city for use of excessive force.  In the meantime, Goldman and one of his employees allegedly assured Ismaaeel and Gloria that they had two years in which to file.  However, this was only true with respect to a federal claim for deprivation of rights.  A “distinctly separate” state tort claim against the City must be filed within one year. Id. at ¶20.

Nearly two years later, no civil suit having been filed, Gloria asked attorney Michelle Gonzalez (“Gonzalez”) to file a civil lawsuit against the city on Ismaaeel’s behalf.   Gonzalez did so, but failed to appear for two consecutive status hearings, resulting in dismissal for want of prosecution.  By then the statute of limitations for Ismaaeel’s federal claim had expired as well, and Ismaaeel never filed a motion to vacate the dismissal.  Rather, he sued Goldman for malpractice for not filing a civil complaint.  Goldman moved successfully for summary judgment, denying that he agreed to represent Ismaaeel in the civil suit, and that Ismaaeel “could not show any damages from this alleged malpractice because Gonzalez’s failure to pursue the §1983 case operates as a superseding cause.”  Id. at ¶9.

The Appellate Court reversed, holding that Ismaaeel had presented sufficient evidence to create a question of damages insofar as he “lost his respondeat superior cause of action against the City… because Goldman did not file the complaint within one year of the incident” and “might have recovered damages… on a different cause of action” as well.  Id. at ¶20.  Moreover, “Gloria’s corroborated testimony sufficiently creates a material issue of fact as to whether Goldman ever agreed to file a civil complaint against the City on Ismaaeel’s behalf.”  Id. at ¶23.  “Even if the trier of fact finds that Goldman did not agree to file the civil complaint,” the Appellate Court added, “Goldman could still bear liability for misinforming his client that he had two years to file his civil claim, where tort claims against the City must be filed not later than one year after the date of injury.”  Id.

Jamison v. Goldman, 2018 IL App (1st) 173168-U

(This is for informational purposes and is not legal advice.)


Speculation in Determining Causation: First District Holds Testimony as to What a Witness Would Have Done Absent Attorney’s Alleged Malpractice is Admissible

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The National League of Professional Baseball Teams (the “League”) hired the law firm Gozdecki, Del Giudice, Americus & Farkas, LLP (“GDAF”) to draft its operating agreement (the “Agreement”).  The League asserts that the Agreement was supposed to contain a $1 million liquidated damages provision to be imposed on teams that voluntarily withdrew from the League.   However, no such provision was included.  Rather, the final version of Agreement contained a provision for involuntary expulsion of a team, which included a $1 million liquidated damages penalty.  When four of the League’s eight teams chose to join a rival organization, the League suffered “devastating financial losses and eventually, the league ceased operations.”  Id. at ¶5.  The League sued GDAF for malpractice, seeking the $4 million dollars it should have been able to collect from the departing teams, but for GDAF’s alleged malpractice in drafting the Agreement.

At trial, the parties vigorously contested the type of exit fee provision the owners intended. The owners of two departing teams testified that they “would not have signed an agreement containing an exit fee provision.”  Id. at ¶32.  The League objected to the testimony, but was overruled. After the jury returned a verdict in favor of GDAF, the League appealed. Among other things, the League argued that the trial court erred in allowing the speculative testimony from two departing team owners as to what they would have done concerning an agreement that did not yet exist: an alleged violation of Illinois Rules of Evidence 602 and 701.  Id. at ¶36.  The Appellate Court disagreed, explaining that “to determine whether defendants committed malpractice by failing to include an automatic exit fee provision in the agreement, the jury had to consider the parties’ intent regarding exit fees.”  Id. at ¶38.  It added that the League “has not cited any authority stating that evidence of such intent cannot be relevant or admissible just because the parties did not have an actual agreement containing the disputed provision.” Id.

N. League of Prof’l Baseball Teams v. Gozdecki, Del Giudice, Americus & Farkas, LLP

(This is for informational purposes and is not legal advice.)

Laurent v. Johnson

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The Third District affirmed the grant of summary judgment in a legal malpractice case.  The court held that plaintiff had no evidence that she would have been successful in the underlying case within a case but for the legal malpractice because she failed to satisfy the “discrepancy rule” for an insurance case.  The court also held that there was no evidence that the settlement of the underlying case was depressed by the alleged malpractice because the plaintiff settled her underlying case before the court dismissed it.  Thus, there was no evidence of either causation or damage.

Laurent v. Johnson, 2017 IL App (3d) 160627

(This is for informational purposes and is not legal advice.)

Hilton v. Foley & Lardner, LLP

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In this unpublished opinion, the First District affirmed the dismissal of conversion and breach of fiduciary duty claims brought by an individual and affirmed the grant of summary judgment with respect to legal malpractice claims brought by an LLC.

As to the individual’s claims, the court affirmed the dismissal on statute of limitations grounds.  The plaintiff should have known of the defendant lawyer’s conflicted representation of the plaintiff when his lawyer wrote a letter to defendant’s lawyer on the issue.  Moreover, the court noted that the two-year statute of limitations applies to any claim against a lawyer (even if it is not a legal malpractice claim) sounding in tort, contract or otherwise and arising out of professional services, even if the claim is brought by a non-client.

As to the LLC’s claim, the court held that there was no evidence that the lawyer’s conduct proximately caused any loss.   There was no evidence that another lawyer representing the LLC would have acted differently and the plaintiff did not depose managing member of the LLC to try to adduce that evidence.

Hilton v. Foley & Lardner, LLP, 2017 IL App (1st) 162450-U

(This is for informational purposes and is not legal advice.)

Century-National Ins. Co. v. Schoen, 2017 IL App (1st) 163261-U

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In this unpublished opinion, the First District affirmed the dismissal of a legal malpractice claim due to plaintiff’s inability to establish that the defendant lawyer’s conduct caused damages.

The suit alleged malpractice by two separate law firms who allegedly failed to give their insurance carrier client notice that the underlying plaintiff had made a policy limit settlement demand.  The underlying personal injury case was filed against an employer and employee.  The insurance carrier retained one law firm to represent the employer and a separate law firm to represent the employee.  During the underlying litigation, the plaintiff sent letters making policy-limit settlement demands  to both law firms.  The case did not settle and the plaintiff won a large jury verdict.  Thereafter, the employer assigned its rights against the insurance carrier to the underlying plaintiff, who brought a bad faith refusal to settle lawsuit against the insurance carrier.  The bad faith complaint’s allegations mentioned only the employer’s law firm and the employee’s law firm which also received the policy limit settlement demand letter.  The carrier settled the bad faith claim and then sued both law firms for malpractice.  The court affirmed the dismissal of the malpractice claim against the law firm not named in the bad faith complaint.  Even though the insurance carrier alleged it would have known of the settlement demand sent to the employer’s law firm if the employee’s law firm had given notice of the demand it received, the court held that was insufficient to establish causation.  The court further held that the employee’s law firm could not have proximately caused the insurance carrier’s injury because only the employer assigned its claim to the underlying plaintiff who brought the bad faith claim.

Century-National Ins. Co. v. Schoen, 2017 IL App (1st) 163261-U


King Koil Licensing Co. v. Harris, 2017 IL App (1st)

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The first district affirmed a jury verdict in favor of a law firm in a legal malpractice case.  It held, among other things, that the jury was allowed to find that a lawyer’s negligence in documenting the terms of a deal was not the cause of the client’s loss when the client had an opportunity to read the documents.