Wednesday, May 15, 2013

Life Imitates Art

Two Fordham Law graduates opened their own firm in January 2008 with a concentration in personal injury matters.

Both were suspended for nine months and until further order by the New York Appellate Division for the First Judicial Department.

The misconduct involved  an approach to a case that calls to mind two of my favorite fictional attorneys - Paul Biegler in Anatomy of a Murder and Whiplash Willie Gingrich of The Fortune Cookie.

Neither attorney had significant experience in personal injury law prior to opening their firm.

Shortly after they opened for business, they were retained by a client who was allegedly injured in a fall. She recalled that she had fallen in front of a church with a sidewalk defect at a street intersecting with Lockwood Avenue in the Bronx. Trouble was, she could not remember the name of the church or its exact location.

They went on line and found no such church.

Rather, they focused on Bryn Mawr Presbyterian on Lockwood Avenue in Yonkers. Trouble was, there was no defective sidewalk in front of the church. Solution: there was a defective sidewalk across the street, abutting the property of a private homeowner.

Then came the Paul Biegler "explanation" of the law. After the attorneys told the client that she only had a viable potential claim against the homeowner, she changed her story. The attorneys then sued the homeowner.

As trial neared, the attorneys "realized they were incapable of trying the case" and brought in experienced counsel. They failed to advise new counsel of the client's changed story and they scrubbed all file references to the claim against the church.

The case was dismissed after the client was confronted with her false deposition testimony concerning her past criminal record.

The court: is clear that respondents intentionally influenced their client to misrepresent the situs of her accident in order to pursue an action which they knew was fraudulent from its inception. Thereafter, respondents, with full knowledge that they were perpetrating a fraud, commenced an action against an innocent third party, filing papers, such as pleadings, containing misrepresentations with the court. Then, for a over a year, respondents continued to conduct discovery and attend court conferences with full knowledge that the action they were pursuing was based on a misrepresentation which they themselves influenced. When forced to retain trial counsel, respondents not only failed to apprise counsel that their client's accident did not occur where she alleged, but in order to conceal their prior misconduct, they sanitized the case file, removing any evidence as to the accident's actual situs. While respondents never expressly admitted that their behavior was motivated by financial gain, in a case where their legal fee would be determined by the amount they were able to recover for their client, it is clear that respondents engaged in the misconduct alleged and to which they admitted for financial gain and with venal intent.

The Whiplash Willie reference relates to a client that he was interviewing who had slipped on a banana peel in front of Nat's Delicatessen on Euclid Avenue in downtown Cleveland.

Willie: "Couldn't you drag yourself in front of the May Company? From them we can collect!" Then "Maybe we can sue the United Fruit Company."

(Mike Frisch)

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Love Wilder's "The Fortune Cookie." One of my favorite scenes is when willie goes to the BigLaw frim defending the Cleveland Browns against his brother-in-law:

Willie Gingrich: "What about Mrs. Cunningham vs. Baltimore and Ohio Railroad, U.S. District Court, Eastern District of Ohio, number eighty-nine twenty-seven. Mrs. Cunningham, en route to Cincinnati to visit dying uncle, gets trapped in the toilet on account of a faulty lock. The car is hitched to another train. Mrs. Cunningham winds up in San Bernadino California. By this time, the uncle is dead and she's cut out of the will, so she sues the railroad for damages. Does this ring a bell? "
BigLaw: "Never heard of it! "
Willie Gingrich: "None of this has? Because you, gentlemen, represented the railroad."
BigLaw: "We did?"
Willie Gingrich: "And lost the case."

Posted by: Paul J. Burgoyne | May 15, 2013 8:54:51 AM

And what about Fishbein versus The Empire State Building!

Posted by: Mike Frisch | May 15, 2013 5:40:07 PM