$300K awarded in local legal-malpractice lawsuit

By Douglas Levy
BridgeTower Media Newswires
 
What makes legal malpractice trials a challenge is the nature of such lawsuits, according to plaintiff’s counsel in a recent Oakland County case.

“You typically have to prove a case within a case, which means having to prove two cases,” said B.A. Tyler, a Troy-based attorney.

In trying their claims, Tyler and co-counsel Thomas M. DeAgostino said a jury consultant, an understanding jury and experts’ testimony were critical.

The trial, which concerned an attorney’s alleged negligence by improperly advising his client in a divorce proceeding, resulted in a $300,000 verdict.
 
‘It’s a constant battle’

DeAgostino, of Potter, DeAgostino, O’Dea, & Patterson in Auburn Hills, said that in his and Tyler’s litigation experience, what’s essential is knowing which issues are worth chasing and which aren’t, and how to stay focused on the ones that matter.

“A divorce case can be complex. But when you break it down to where the standard fell apart, it may be on a simple issue,” DeAgostino said.

“In this case, it was a relatively simple issue, and the defense [in the malpractice case] attempted to retry the entire divorce in order to confuse and complicate things. It’s a constant battle between prosecuting the plaintiff’s case and chasing after some of these ghosts that the defense want to put out there. That’s where the jury consultant is very helpful.”

The jury of two men and six women included a woman who had gone through a divorce, as well as two women married to attorneys.

Tyler said any concerns he and DeAgostino may have had about those jurors — such as the attorney spouses providing legal insight to their juror wives — needed to be tempered.

“Any time you have a perceptive juror who is in a field that might relate to the subject matter of a case or is married to somebody who’s a lawyer or in the field … I think there’s always a risk that that person will become the most influential juror [and could] grasp onto concepts that are not part of the case to decide the case,” Tyler said.

DeAgostino and Tyler said they were comfortable with the jurors who promised to not speak with their spouses — neither of whom practiced family law — about the case.

Richard M. O’Connor, who represented the defendant, said that he puts faith in jurors.

“I’ve left lawyers on my juries. Have I left medical people on in medical cases? Yes. And sometimes I’ve felt it’s risky to leave a nurse on,” said O’Connor, of Bloomfield Hills-based O’Connor, DeGrazia, Tamm, & O’Connor PC.

“My view in jury selection is, all of us try to do the right thing on the jury, and there’s risk in anything we do. What if one of the women [on the jury] doesn’t like her [attorney husband]? But they said they’d be fair and impartial, and that’s what I go by. I don’t think I’m a Pollyanna, but I take people at their word.”

 
Scouting the expert

DeAgostino and Tyler said they retained a family law expert and a forensic accountant, but added that the defense’s matrimonial law expert also was helpful to plaintiff at trial. Plaintiff’s counsel had done a scouting report on the defense expert, using the results to tailor their trial approach.

“Everybody we talked to said he was ethical and honest and straightforward,” Tyler said. “We basically used that to our advantage at the time of trial, because we knew if the correct and full slate of facts were provided to him, we expected that we’d get answers that were favorable to our client.”

DeAgostino said he and Tyler needed to keep their arguments “as simple as possible.” He said that because of the underlying claim’s nature, counsel needed to look “very specifically” at the statutory requirements and how the parties conducted themselves during the course of their divorce.

“By keeping it refined that way, it was a little easier to rein in the defense expert,” DeAgostino said. “There were certain things he simply had to agree with, then certain things [to which] he had to apply the law and the facts.

“That’s why … when [the defense expert] was made aware of the total picture of all of the facts, we believe that based on his reputation, he would have to make certain concessions, and he did.”

 
‘Vagaries of cross-examination’

Tyler claimed that the defense had not provided all of the information to the defense expert, which O’Connor called “an untrue representation. He had all the facts. That was [plaintiff’s] approach at trial, but I don’t think that’s true at all.”
O’Connor added that his retained expert was “100 percent” on the defendant’s side.

“But I guess the vagaries of cross-examination, if you’re not allowed to put in all of the evidence, can come up with an outcome that you’re not happy with,” he added.

To that end, O’Connor said, “I try my cases by showing the jury everything — good, bad and indifferent. That’s what I tried to do, not only with conclusions that were in court, but with all memorandum that were in the file. … I think the jury is entitled to see all of the evidence, especially in a case like this.”

He added, “Your client does his best. It’s a very personal thing. And if your client does his best to verbalize the judgments he had to make … the jury is going to decide based on the way the evidence is presented.”

O’Connor said that defense has a motion for a new trial and that there are “legitimate appealable issues.”