Emotional Distress Damages in Professional Malpractice Matters

Many aspects of litigation involve high levels of emotion when reputations, resources, pride, and goals are on the line.  Nonetheless, it is highly unusual for an attorney to be subject to mental distress damages arising from a legal malpractice claim. Recoverable damages are usually limited to compensatory losses.  However, a recent decision from Iowa’s highest court suggests that the tide may be turning.

In last week’s decision by the Iowa Supreme Court, an attorney’s former clients were permitted to collect emotional distress damages arising …

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The Power of the Conflict of Interest Waiver

A vast majority of professional malpractice matters arise from an alleged conflict of interest.  Legal malpractice claims, for example, most frequently involve conflicts of interest; a whopping 46% according to a recent study. Perhaps this is no surprise. According to one scholar, the “exercise of his independent professional judgment” goes to the “heart of the skills” which a professional offers to his client. Thus, lawsuits typically follow in the event of a breach – or perceived breach – of that independence. Of course, …

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NY Attorney’s Attempt to Recover Legal Fees Backfires

Let it be said: we don’t work for free.  The business of law, like any profession, is based on a simple formula: quality work + results = payment.  Sometimes obtaining payment can be the most difficult piece of the equation.  When a fee dispute does arise, an attorney may be required to strike a balance between demanding full compensation and maintaining a productive and ongoing relationship with the client. 

We’ve previously warned of the risks of engaging in collection proceedings against former clients.  However, that …

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The Effective Litigation Hold Letter

Our recent post on the ramifications of destroying social media content got us thinking about the importance of an effective legal hold letter.  Also known as a “preservation” or “hold” order, this document instructs an entity or individual to preserve all data that may reasonably relate to pending or anticipated litigation.  A goal of the litigation hold is to suspend the normal dispositions of records and to prevent spoliation.  Another goal is to avoid the potential for sanctions and ethical issues facing those …

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Facebook Discovery Infraction Leads to Attorney Sanction

The proliferation of social media has altered the litigation landscape.  Most attorneys on both sides of the v. understand the implications of social media, particularly during the discovery stage. Nonetheless, the law governing social media and discovery is still in its infancy.  The result is troublesome: practitioners encounter social media issues but the rules governing those scenarios are not entirely clear. One rule that is well established is the requirement that a legal hold be implemented for all relevant materials, including social media content. The …

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Secret Video Exposes Expert Witness to Criminal Proceedings

A New York state judge recently provided a compelling reminder of the serious ramifications for failing to provide truthful testimony on the stand.  The focus of Queens Supreme Court Justice Duane Hart’s admonition was an orthopedist routinely hired to assist in the defense of personal injury cases. When the court discovered through a hidden camera recording that the expert’s testimony was exaggerated at best – or an outright lie at worst – the court ordered a mistrial and directed his attention to potential criminal …

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The Cost of an Apology: Pennsylvania Considers Apology Law

Malpractice is devastating. Professionals work tirelessly to earn a degree (or more), develop client relationships and trust, and subsequently a book of business all of which can be at risk in the event of professional negligence. The professional’s reaction may be to approach the client or patient with an apology, explanation or consolation but there are serious risks to doing so. Depending on the professional’s E&O policy, an apology may constitute a waiver of coverage.  Moreover, that apology may be an admissible “confession” which can …

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The Floodgates have Opened: Unpaid Internship Suits on the Rise

Don’t say we didn’t warn you. Last month we discussed the first suit filed by unpaid interns against their “employers” under the Fair Labor Standards Act.  Channeling our inner Miss Cleo, we suggested at the time that the decision in Glatt v. Fox Searchlight Pictures, Inc., would have far-ranging implications on the EPL community.  Sure enough, the floodgates have opened for unpaid interns seeking repayment under the FLSA.

In recent weeks, Conde Nast, Gawker, Warner Music, Nickelodeon, and …

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Here’s to an Uneventful Fourth of July

July 4 is not the ideal time to consider insurance but for too many it is a reality. By way of a reminder, after voting for independence on July 2, 1776, in the midst of the American Revolution, Congress turned its attention to the Declaration of Independence.  The document was a statement explaining this decision, which had been prepared by a committee led by Thomas Jefferson. Congress debated and revised the wording of the Declaration, finally approving it on July 4, 1776.  …

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Supreme Court Changes the Standard for Retaliation Claims

Often, it’s not the crime but the cover-up that will do you in. In some ways, that sentiment is applicable to retaliation claims for alleged discrimination in the workplace. Or at least it was, until the Supreme Court’s recent decision in University of Texas Southwestern Medical Center v. Nassar. Previously, an employer facing a discrimination suit was susceptible to a retaliation theory despite establishing legitimate reasons for the alleged discriminatory conduct (usually terminating or demoting the employee).  Specifically, so long as the plaintiff could …

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