Who is Really Writing the Expert Report?

Expert reports are a staple in many litigated matters.   A good report should clearly convey the opinion and provide sound reasoning for the basis of the opinion.  It is to be expected that an attorney and the expert will work together to formulate the expert opinions and ultimately to author a report. But how much input may an attorney provide? Federal Rule 26 clearly states that the expert report is to be prepared and signed by the witness.   Nothing in the rule prohibits counsel from …

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Drop Dead Deadlines – Impartial or Indiscriminate? 

The world of litigation is rife with deadlines.  Even a meritorious argument or strong case can be derailed by failure to timely file pleadings and motions.  This reality was illustrated in the recent case of Connolly v. 129 East 69th St. Corp.  In this slip and fall case, a defendant moved for summary judgment to dismiss plaintiff’s case, and the trial court granted the motion.  On appeal, however, the decision was reversed, as the court held the motion was filed one day after the motion …

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AOM Failure Closes the Door, but for How Long?

To minimize frivolous professional malpractice claims, many states have enacted affidavit of merit statutes.  The range and substance of these statutes can be dizzying; indeed, that’s why we recently published a handy table with requirements and resources for each state.  The AOM rules provide defense attorneys with an important tool to help defend malpractice claims in certain jurisdictions. In the extreme scenario, dismissal may be appropriate due to a faulty, lacking or late AOM. But, the question remains, whether the plaintiff has the opportunity to …

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Public and Private E-mails Don’t Mix

Hillary Clinton recently made headlines for using her personal email account for business purposes during her tenure as Secretary of State. This high profile example provides us with an opportunity to reflect upon what is commonplace for some.  It can be tempting for employees to use personal email accounts to conduct corporate business, particularly when working remotely.  However, the highly sensitive nature of Clinton’s job raised questions over the security of using a non-work email account to transmit information. Depending on the nature of your …

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Does Privity Matter? Yup, According to a Recent Dismissal

Attorneys may be prepared for, or at the very least are aware of the risk of, claims raised by current or former clients. Generally, the first element in any malpractice claim is the existence of an attorney-client relationship.   The Restatement (Third) of the Law Governing Lawyers provides that an attorney-client relationship arises when, “a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or …

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No More “Signing” on the Dotted Line

E-mails rule the business world.   Due in part to the sheer volume of e-mails we receive, many professionals use standardized email signatures, which are automatically inserted at the bottom of an email.  The shift to more transactions occurring by email raises the question: what constitutes a legally binding signature? A recent decision by the California Court of Appeals addressed the issue of when an e-mail may constitute a binding signature.  The decision underscores the importance of understanding the validity of electronic signatures and the statutory …

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No Merit for Outsiders

Many states have enacted some version of an “affidavit of merit” (AOM) requirement for professional malpractice claims. We’ve blogged in the past about the significance of affidavit of merit requirements, including the potential advantages from a defense perspective when a plaintiff fails to comply with the applicable state statute.  Professionals involved in malpractice suits will want to take note of a recent decision by a New Jersey appeals court, which addressed the state’s affidavit of merit statute and limited affidavits of merit to the same …

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Tis the Season of Gift Giving (Policies)

Whether it’s a fruit basket from a vendor or an employee gift exchange, it’s that time of year when the approaching holidays can stir up a frenzy of gift giving in the office. Many companies find themselves struggling to define what is appropriate, fair and festive when it comes to holiday gift giving.  Certainly no one wants to be a Grinch, but creating a clear gift policy ahead of time is an easy way to avoid controversy and liability.  Consider the following tips when creating …

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Paralegal Power! Appropriate Delegation = Client Satisfaction

The practice of law is changing.  In particular, as a result of modern technology, attorneys’ reliance upon support staff is not what it used to be. This has impacted the role of paralegals, members of a dwindling field. Indeed, according to the 2012 Survey of Law Firm Economics, the average number of paralegals per law firm has dipped by over 30%. However, paralegals still play an important role in a law firm.  If utilized effectively, paralegals have proven to be invaluable players who provide …

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S.O.L.: The Continuous Representation Doctrine

Statute of limitations laws are intended to protect defendants from stale and meritless claims. Moreover, these statutes pressure plaintiffs to institute supported causes of action while the evidence is ripe. Certainly, these statutes are an ally to the defense bar and can be a major obstacle for plaintiffs. A plaintiff asserting a professional malpractice claim may attempt to circumvent a time-bar defense through the continuous representation doctrine.  The argument is that the continuing professional-client relationship delays the accrual of a claim. This theory was …

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