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When is Enough Enough? A Claim of Legal Malpractice in the Course of Settlement Negotiations

Posted on: November 15th, 2019

By: Jake Loken

The Georgia Court of Appeals confirmed in Smiley v. Blasingame, Burch, Garrard & Ashley, P.C., decided on October 30, 2019, that when a claim of malpractice occurs regarding settlement negotiations, an alleged breach is immaterial if a plaintiff cannot prove that the breach resulted in damages to the plaintiff. Said another way, even if a breach can be proven, a plaintiff must still prove that the plaintiff could have received a greater settlement but for the breach.

The Smiley plaintiffs claimed their attorneys committed legal malpractice in the course of settling the plaintiffs’ underlying lawsuit which involved claims related to an implanted medical device. In negotiating potential settlements, the attorneys allegedly settled with the medical device manufacturer on terms different than those posed to plaintiffs.

At the trial court level, the court noted that although the plaintiffs “‘presented enough evidence for a question of fact as to whether the actions of [the attorneys], if taken as true, violated a legal standard of care,’ their claim still did not survive . . . because the plaintiffs have not shown any damages proximately caused by the breach.”

In discussing this point further, the Court of Appeals found that the plaintiffs had “not cited to any issue of fact indicating that they would have received a larger settlement if their attorneys had not breached their duty towards them. Further, the [plaintiffs’] assertions that they should have received additional compensation are merely speculative.” And, as we know, “[a] legal malpractice claim cannot be based upon speculation and conjecture.”

Notably, the Court of Appeals found that “damages cannot be proven by comparing the [plaintiffs] settlement with the settlement received by the other . . . plaintiffs [also allegedly injured by the same medical device].” In reaching this conclusion, the Court of Appeals used the words of the plaintiffs’ expert to state that in the case of multiple settlements regarding the same underlying medical device, “every case has its own facts . . . [and] that other considerations played into each plaintiff’s settlement, including venue, judgment collectability, and potential appeal rounds.”

If you have any questions or would like more information, please contact Jake Loken at [email protected].

In the Driver’s Seat: Supreme Court Hears Oral Arguments in Kansas v. Glover

Posted on: November 11th, 2019

By: Rachael Slimmon

On November 4, the United States Supreme Court held oral arguments in the case of Kansas v. Glover.  The Court examined whether a police officer may conduct a traffic stop solely because the vehicle’s registered owner has a suspended license.  The case started in 2016, when a Kansas police officer ran the license plate on Charles Glover’s truck.  Mr. Glover had a suspended license, so the officer pulled over the truck.  At trial, the parties stipulated that the officer assumed the owner was the driver, and the officer did not testify.

The Fourth Amendment of the Constitution forbids “unreasonable searches and seizures.”  For traffic stops, longstanding precedent requires that police officers have “reasonable suspicion” of a crime before they can pull over a vehicle and conduct a traffic stop.

The Justices, particularly Justice Gorsuch, gave conflicting indications about their views during oral arguments.  Justice Gorsuch first appeared concerned that the officer did not testify about his training and experience.  Gorsuch indicated that this lack of officer testimony meant there were no facts behind the officer’s assumption that a vehicle owner is the vehicle driver, and no facts from which to draw reasonable suspicion.  Later, however, Justice Gorsuch opined that requiring an officer to testify and say “magic words” about his training and experience would be formalistic and unhelpful.  Many of the Justices also seemed to disagree whether it was common sense to assume that a vehicle’s owner is the driver, with Justice Breyer appearing most willing to accept that assumption.

Mr. Glover’s attorney proposed multiple options for officers to gain additional evidence before pulling a car over: visually checking to see if the driver is similar in age and gender to the vehicle owner, following the car to wait for another traffic violation, and using statistical studies.  Multiple Justices questioned the wisdom and practicality of these other measures.

If the Court finds the traffic stop unconstitutional, Kansas v. Glover could impose minor or significant changes to law enforcement practices.  Justice Alito summed up the main issue: “What you are proposing is either a trivial decision or a revolutionary decision. It’s a trivial decision if all who’s lacking here is a statement [of the officer’s training and experience] … It’s a revolutionary decision if in every case involving reasonable suspicion there has to be a statistical showing or an examination of all” the additional evidence that Mr. Glover’s attorney proposed.

If you have any questions or would like more information, please contact Rachael Slimmon at [email protected].

Florida Legislature is One Among Several Pushing for Mandatory Use of “E-Verify”

Posted on: November 8th, 2019

By: Melissa Santalone

A Florida State Senator has filed a bill that would require, beginning January 1, 2021, all Florida businesses to use the “E-Verify” system to check whether each newly hired employee is authorized to work in the U.S.  The “E-Verify” system is a web-based system operated by the Department of Homeland Security (DHS) that compares information supplied by the user, presumably first obtained from the new employee, with data held by DHS and the Social Security Administration.  The bill does not limit its application to businesses of a certain size and, therefore, even the smallest of Florida businesses would be required to comply.  Any businesses failing to register with “E-Verify” after the effective date of the bill, if signed into law, would be subject to suspension of all or any state licenses they hold.  If an employer is found to have committed a second violation of knowingly employing an “unauthorized alien” within a 2-year period, the bill would subject the employer to a 30-day suspension of its business licenses.  Governor Ron DeSantis has previously come out in favor of mandatory use of “E-Verify” and would likely sign the bill into law if it were to pass both houses of the Legislature.

By introducing this bill, the Florida legislature joins the legislatures of other states, including Pennsylvania, and the United States Congress in considering similar mandatory use of “E-Verify” in 2019.  Earlier this year, legislators in North Carolina proposed a bill that would increase the number of businesses subject to its mandatory use of “E-Verify” by including businesses with 5 or more employees, down from 25 or more.  Currently 9 states require all or most employers to use “E-Verify” and numerous others require some employers to use it.

Interestingly, the Florida bill would also create a private cause of action against an employer by an employee who is a U.S. citizen or resident alien that is discharged by the employer while the employer knowingly employs an “unauthorized alien” at the same job site or in the same job classification elsewhere in Florida.  In such an action, the employee could be entitled to reinstatement or the recovery of back pay, court costs, and attorney’s fees.

We will be watching to see if this bill becomes law.  If you have questions about Florida law surrounding the use of “E-Verify” or other labor and employment-related questions, please contact Melissa A. Santalone at [email protected].  If you need assistance in other states where Freeman Mathis & Gary can assist you, please contact a member of our Labor & Employment practice group.

California Lawyers Cannot Churn Files

Posted on: November 7th, 2019

By: Greg Fayard

Under the Rules of Professional Conduct applicable to California lawyers, attorneys are not supposed to do things where the substantial purpose is to delay, prolong, or cause needless expense. Under Rule 3.2, lawyers can be disciplined for churning a file for the substantial purpose of increasing legal fees. Examples of needless work would be lawyers spending time researching irrelevant issues, working on a case just to increase the legal fees, and seeking to continue a case for no valid reason, such as to extend a billing opportunity or delay a case simply to aggravate the opposing party.

Of course, the California State Bar might have trouble proving a violation of Rule 3.2, as most legal work has a motivation that is not based substantially on delay or increasing expenses.

That said, the best practice for all lawyers is to do what is necessary but which potentially advances the client’s interests.

If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.

Undefeated Records: Good for Sports & Business

Posted on: November 1st, 2019

By: Brittany Kurtz

A contentious rivalry between divisional foes late in the season fueled a halftime bathroom brawl in December 2014 leading a Dallas Cowboys fan to file negligence claims against the Philadelphia Eagles organization and its security manager at Lincoln Financial Field. The Cowboys fan alleged a group of Eagles fans repeatedly taunted him, going so far as to grab his star-emblazoned hat and tossing it into a urinal, ultimately ending in an altercation with the Cowboys fan on the ground and surrounded by a handful of attackers. These attackers were never found, but the Cowboys fan alleged his injuries were caused by the Eagles organization and its security manager for failing to provide reasonable security within the bathroom.

Most surprising was the Cowboys fan’s favorable jury verdict in a Philadelphia courtroom. The Philadelphia Eagles organization appealed to the Superior Court as it believed the Cowboys fan failed to meet his burden of proving a duty owed by the organization regarding the security measures in place and was entitled to Judgement N.O.V.

The Superior Court acknowledged the Philadelphia Eagles organization held its property open to the public for business purposes and would be subject to liability for negligent or intentional harmful acts of third persons which it must take reasonable precaution against that which might be reasonably anticipated. Generally, individuals are not liable for the criminal conduct of another absent a preexisting duty. However, the Eagles organization voluntarily undertook a duty to protect its business invitees, including Cowboys fans, from fighting during football games at Lincoln Financial Field. Therefore, the Eagles organization had a duty to protect its invitees against third party conduct when it had reason to anticipate such conduct.

The Superior Court determined the Eagles organization and its security management team as a matter of law did not have notice of violent assaults regularly occurring in its restrooms during games, therefore it was reasonable to not have a stationed security guard at the restrooms. The security logs only demonstrated the Eagles organization was on notice that there were persons who became incapacitated because of intoxication in the restrooms, not violence.

The Cowboys fan also alleged negligent operation of the security program in place as it is known that wearing opposing team apparel to an Eagles’ game is dangerous. However, the security team employs undercover guards wearing the opposing team’s gear in order to identify those members of the convocation of Eagles who harass fans of the opposing team to be addressed. Therefore, the Court determined the Cowboys fan failed to demonstrate the security program was conducted without reasonable care and that the Eagles organization should have reasonably anticipated violent assaults occur in the restrooms and should have been monitored by security. The Court vacated the judgment entered in favor of the Cowboys fan and remanded to the trial court for entry of judgment in favor Philadelphia Eagles organization and its security management team. Pearson v. Phila. Eagles, LLC, 2019 PA Super. 304 (October 11, 2019).

Record keeping played a critical role as the Superior Court relied heavily upon the security logs and documentation of the security team to determine whether the Philadelphia Eagles organization had notice of prior instances of violence occurring in its restrooms during games. Documentation provides objective evidence to the courts and juries which helps to provide them a clearer picture and, in this case, clearly showing a property owner’s lack of notice for third party violence towards its invitees in the restrooms.

If you have any questions or would like more information, please contact Brittany Kurtz at [email protected]