Evidentiary Issues

At-Issue Waiver in Legal Malpractice Case Not Automatic

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Rabbi Stanley Kroll (“Kroll”) had an employment contract with his Synagogue which included a deferred compensation retirement plan (the “Plan”).  In 2016, the Synagogue asked Kroll to retire early.  Kroll agreed, but on his last day a Synagogue officer told him that a tax issue had arisen with the Plan, promising it would be resolved. Kroll found out later that the issue had not been resolved, thereby subjecting his deferred compensation to heavy penalties.  Kroll also alleged that the Synagogue had not set aside enough money to fund the Plan and had retained the law firm Cozen O’Connor (“Cozen”) without his knowledge to help it reduce payments to him.  Kroll sued the Synagogue, settled, and then sued Cozen.  Cozen issued subpoenas “to obtain [Kroll’s] confidential communications with the lawyers who advised or represented him after his departure from the Synagogue.”  Id. at 3.  It argued that because Kroll had relied on the discovery rule to toll the running of the statute of limitations, he had placed the question of when his claims accrued and when he learned of his injuries at issue.  Cozen claimed that this constituted a waiver of the attorney-client privilege and the work-product doctrine as to communications between Kroll and his attorneys that showed when he learned of his injury.  Id.

Kroll moved to quash or modify the subpoenas and the Court granted his motion in full. It explained that although the privileged communications sought might address what Kroll knew about his injuries and when, they were not vital to Cozen’s defenses.  Id. at 5. The matter was “early in discovery” at the time, and the Court “had no basis to conclude […] that [Kroll’s] privileged communications […] are the only source of evidence about when [Kroll] learned, and what he learned, about the nature of his alleged injuries.”  Id. at 5.

Kroll v. Cozen O’Connor, 2020 WL 3077556 (N.D. Ill. June 10, 2020)

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


Attorney May Testify as Expert on Standard of Care, Not on Legal Conclusions that Determine Outcome of the Case

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Clay Cox (“Cox”), successor trustee for a coop formed to build and operate an ethanol facility, sued attorneys Michael Evans and Nancy Schell and their law firm, Froehling, Weber, Evans & Schell, LLP, (together “Defendants”) for legal malpractice. Defendants designated attorney Walker Filbert (“Filbert”) as their expert witness concerning whether Defendants “met the standard of practice for attorneys practicing law in central Illinois and that their conduct did not proximately cause any injury to the Coop.” Id. at 6. Cox moved to bar Filbert’s testimony, memorandum in support, and Defendants’ response. The motion was granted in part and denied in part.

In ruling on Cox’s motion, the Court applied the Daubert analysis, which requires evaluation of “(1) the proffered expert’s qualifications; (2) the reliability of the expert’s methodology; and (3) the relevance of the expert’s testimony.” Id. at 7, see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). With respect to Filbert’s qualifications, Cox argued that his “experience as a lawyer in central Illinois and a CEO of an ethanol company” did not qualify him to give testimony in this matter because he had “no experience with professional responsibility and legal malpractice.” Id. at 9. The Court disagreed, explaining that as “a practicing attorney, Filbert would have been required to understand the rules of professional conduct governing his practice of law and to follow those rules. Those obligations encompassed the dispute at issue here—ascertaining the standard of care for an attorney.” Id. at 10. As to Filbert’s methodology, Cox claimed his report was devoid of any proposed methodology and rested “entirely on his alleged expertise as a lawyer, drawing conclusions without any analysis.” Id. The Court sided with Defendants again, holding that Filbert’s opinions “were informed by his legal experience and his knowledge of practicing law in central Illinois” and that his “report and proposed testimony sufficiently link the facts he relies upon with his conclusions so as to be reliable.” Id. at 11. The Court also held that Filbert’s testimony was relevant, as the “touchstone of admissibility under Rule 702 is helpfulness to the jury” and “the lay juror is unlikely to have a strong understanding of the business considerations surrounding the purchase or sale of commercial property” as in this case. Id.

Cox did find success in arguing that some aspects of Filbert’s report “invade[d] the province of the jury and are based upon unsupported assumptions.” Id. Specifically, Cox objected to Filbert’s conclusion that Defendants’ alleged acts or omissions did not proximately cause the damages claimed. The Court agreed that this was an impermissible conclusion, explaining that expert testimony “as to legal conclusions that will determine the outcome of the case is inadmissible.” Id. at 12. It clarified that “while Filbert may not offer an opinion in front of the jury as to proximate cause, he may opine, consistent with his deposition testimony, that market forces and the state of the ethanol industry following the transaction affected the viability of the grain handling facility and the prospects of obtaining financing.” Id.

Cox v. Evans, No. 18-CV-1105-JES-JEH, 2020 WL 2093371 (C.D. Ill. May 1, 2020)

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

Illinois Legal Malpractice and Defense of Lawyers Blog — Novack and Macey LLP


Experience is Enough for Experts

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Webster Bank (“Webster”) sued Pierce & Associates, P.C. (“Pierce”) in connection with its alleged mishandling of a loan collection matter on Webster’s behalf. t issue was the standard of care and whether Pierce breached it.  The United States District Court for the Northern District of Illinois held that the question must be answered based on expert testimony at trial.  However, Pierce moved to strike the testimony of Webster’s expert: G. Patrick Murphy (“Murphy”).  Pierce argued that Murphy, a retired Federal District Court Judge and litigator, was unqualified to speak on the “highly idiosyncratic rules and customs of high volume debt collection practices” and that Murphy’s report failed to show specifically how his experience informed his conclusions.

The Court denied the motion, holding that Murphy was “qualified by knowledge and experience to address the standard of care for Illinois civil litigators.”  Id. at 3.  It explained that “the crux of this case is not about nuances and intricacies” of the underlying matter, but rather “the standard of care for a reasonable attorney practicing in Illinois under similar circumstances.”  Id.

As for Murphy’s report, the Court held that an expert’s reliance on experience, rather than a particular methodology, did not necessarily render his opinion unreliable.  The report was therefore admissible insofar as it explained what the standard of care was.

However, the Court barred any conclusion by Murphy as to whether Pierce violated that standard.  It explained that “Murphy can testify as to the standard of care, what reasonably careful lawyers would have done, and what mistakes Pierce made.  Murphy cannot tell the jury that Pierce violated the standard of care—that is the very question the jury will answer.  It is the jury’s role to determine whether Pierce violated the standard of care, not Murphy’s.”  Id. at 5.

Webster Bank, N.A. v. Pierce & Associates, P.C., No. 16-CV-2522, 2020 WL 616467 (N.D. Ill. Feb. 10, 2020)

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




A Plaintiff’s Responsibilities: Keeping Appointments, Presenting Expert Testimony, and Providing Records

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Loxley Johnson (“Johnson”), the sole proprietor of L.A. Transportation (“LAT”), stood accused of vendor fraud and theft.  He hired Stephen Komie (“Komie”) to represent him during the corresponding investigation by the Illinois Attorney General; paying Komie $5,000 in advance and signing a retainer agreement.  On Komie’s advice, Johnson agreed to extend the statute of limitations on the claims against him so a more thorough investigation could be conducted.  When a grand jury finally issued an indictment, Johnson signed a second retainer agreement to include the indictment within the scope of Komie’s representation.  The state later notified Johnson that there would be an administrative hearing at which LAT could be heard, but neither Johnson nor Komie appeared.  With that, LAT was defaulted, monetary damages were imposed, and both LAT and Johnson were excluded from certain state programs.  Komie then withdrew as Johnson’s counsel due to “irreconcilable differences.”  Id. at ¶13.  Johnson sued Komie for legal malpractice, accusing him of negligent representation and breaching their retainer contract when Komie failed to appear at the administrative hearing.  Id. at ¶1.  Komie filed a counterclaim for outstanding legal fees.  After a bench trial, the trial court found in favor of Komie on the malpractice claim and on his fee claim.

Appearing pro se, Johnson made multiple unsuccessful arguments.  First, he asserted that the trial court erred in granting summary judgment regarding Komie’s negligent recommendation that Johnson extend the statute of limitations and Komie’s allegedly bad-faith withdrawal.  The appellate court disagreed, holding that “absent an expert opinion” that Johnson never provided, “it is impossible for plaintiff to establish the applicable standard of care and whether defendant deviated from that standard.”  Id. at ¶39.  Next, Johnson argued that Komie’s victory on his counterclaim was against the manifest weight of the evidence.  Here, the appellate court was not able to properly examine the issue because Johnson had not provided a report of the relevant trial proceedings.  Johnson’s last argument as to Komie’s ineffective representation in the form of failing to appear at the administrative hearing was similarly flawed.  Moreover, the appellate court pointed out that “it is every litigant’s duty to follow the progress of his case, rather than to merely assume that counsel is doing all that is necessary and proper.”  Id. at ¶48.

Johnson v. Komie, 2019 IL App (1st) 171189-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.)