Articles & Publications
“I’m so confused.” So said one of the jurors in a legal-malpractice case we recently handled where the plaintiff asserted both a professional negligence claim and a breach of fiduciary duty claim. The juror was reacting to the trial court’s attempt to explain the fiduciary-breach claim in the verdict form. And that juror’s confusion is just one reason why “[c]ourts should resist the appeals of lawyers for [the] plaintiff-client to proliferate theories of recovery that merely overlap each other.” Charles W. Wolfram, A Cautionary Tale: Fiduciary Breach As Legal Malpractice, 34 Hofstra L. Rev. 689, 738 (2006).
Prior to the 1986 tort reform act, Washington’s common law imposed joint and several liability on multiple tortfeasors when they caused a plaintiff indivisible injury. (See Kottler v. State, 136 Wash.2d 437, 442 (1998).) “In such cases the injured plaintiff could seek full compensation from any joint tortfeasor.” (Id.) At the same time, a plaintiff who was found also to have been at fault, and thus to have contributed to the event that led to the injury or damage, was barred from any recovery, no matter how slight the plaintiff’s contributory negligence. (Prosser and Keeton on the Law of Torts; 2 Comparative Negligence § 13.80, at 13-109 (1992); DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 597.)
- April 2017
Spoliation of evidence, and the sanctions that can result from it, remain a significant potential concern in civil cases of all types. A spoliation sanction can turn a small case into a big one or a no-liability case into a clear-liability case. In addition, it is important to understand that even seemingly innocent conduct can result in spoliation sanctions, particularly under recent Georgia appellate case law; a party’s good faith, while a factor in whether and which sanctions should be imposed, is not dispositive. The only way that any company can truly protect itself against potential spoliation sanctions (against itself or its insured) is to put procedures in place to ensure that after any incident that could conceivably result in litigation, all relevant documents and things are preserved until any claim is resolved or the applicable statute(s) of limitations have expired.
- (co-author with Judge Ben W. Studdard) Georgia's Safe Harbor Ruling for Affirmative Defenses in Criminal Cases Should be Revisited, 68 Mercer L. Rev. 35, (2017)2017
- March 2017
In a decision which should provide out-of-state defendants with renewed optimism for securing a dismissal in cases with no alleged asbestos exposure in New York, Judge Peter Moulton, presiding judge in the New York City Asbestos Litigation (NYCAL), ruled that the court lacked both general and specific jurisdiction over a non-domiciliary corporation that was sued in New York for injuries that allegedly resulted from plaintiff’s exposure to asbestos-containing floor tile outside of New York. See Trumbull v. Adience, Inc. (Sup Ct, New York County, March 8, 2017, Moulton, J., Index no. 190084/16).