Boston Injury Lawyer Blog

Having practiced law in the courts of Massachusetts since 1985, I feel that I have some perspective on the trends. Unfortunately, it's not good for victims of personal injury in Massachusetts. In a recent Massachusetts Lawyer's Weekly article some statistics were pointed out.

The statistics show a statewide success rate of 26% in the 700 personal injury cases tried to a verdict throughout the Commonwealth. The average masks the wide variances, which include very grim numbers for Norfolk County personal injuries. For example, in 2009, only 5 out of 35 personal injury trials were plaintiff verdicts there. (Only the Cape and Islands had a lower rate.) In Essex County, the golden spot for personal injury cases, the success rate for plaintiffs was 36%.

One Judge, Patrick F. Brady, who was a defense trial attorney prior to being appointed to the bench, does his own calculations. According to Judge Brady, from 1993 to 2010, only 16 out of 151 plaintiffs have "won" more than the insurance company offer prior to trial. Broken down, there were 7 of 69 in Norfolk, where Brady presided, and, in Plymouth County 49 of 52 were defense verdicts.

But what are the reasons? The major academic reason cited by trial lawyers is that Massachusetts does not allow jury voir dire. That is, in selecting a jury a judge asks a series of basic questions and the jury is selected. In other states, and in some courtrooms in Massachusetts, the selection process is vastly more extensive, weeding out jurors with bias.

While I fully support the struggle to get Massachusetts judges to allow full jury voir dire, it's not so clear to me that this would resolve the problem. When I look at a jury, I'm always encouraged by how eager they seem to do their job correctly.

I think it's subtler than that. The media has done a brilliant job exaggerating plaintiff victories. The McDonalds coffee burn case, for example. Further, some politicians have convinced folks that their insurance premiums would go up if they awarded monies in a Massachusetts car accident. The insurance industry has spent fortunes convincing folks that we need tort reform. It's ironic that the capitalists want socialism with respect to the courts!

Then there is the economy. When a juror is struggling to pay for his mortgage, or her school loan, and the plaintiff comes in all dressed up and with a fancy lawyer, it seems they just can't pull the trigger for damages as much as they used to. Besides, they are thinking about their insurance bill going up if they award damages.

We don't try medical malpractice cases, but the numbers are even grimmer for plaintiff victims of medical malpractice at trial; they win less than 10% of the time.

This is not a sad story, however. My experience is that there are only two types of cases that go to trial: bad ones and phenomenal ones where the victim has an opportunity to get a huge verdict. Those cases skew the statistics. Insurance companies tend to make reasonable offers of settlement on good cases. Their reasonableness is in lower dollar figures than a decade ago, however. But if a Massachusetts personal injury case is aggressively pursued, most insurance companies will, eventually, take the case seriously.

The Massachusetts Clients' Security Board announced that it had awarded over $2,000,000 to clients that had been defrauded out of their money by 33 lawyers committing legal malpractice in Massachusetts. A program run under the Massachusetts Bar Counsel since 1975, the CSB receives 12.49% of attorneys' annual registration fees to fund reimbursements. The Board is made up of seven lawyers appointed by the Massachusetts Supreme Judicial Court; they receive no compensation for their work, however, there are investigators and staff who work full time for the Board.

Three lawyers accounted for payments of $1.07 million, or over 50% of the total payout. Those lawyers are: Raymond J. Paczkowski, a real estate attorney responsible for $509,392 in reimbursed claims; Harley H. Anderson, a trust and estates attorney whose one client was reimbursed in the amount of $253,279.64, the largest award if the fiscal year; and Harold Meizler, another trust and estates attorney with one client being reimbursed for $250,000.

Mr. Paczkowski was disbarred on November 24, 2010 after he converted a $109,953 real estate transaction for his own use. The Board of Bar Overseers found numerous irregularities in his accounting, however, it seems that it was the theft that sparked the investigation and necessitated the sanction.

Mr. Anderson was indicted and subsequently plead guilty for embezzlement by a fiduciary and larceny. He received a two-year jail sentence for his crimes.

Trusts and estate lawyers accounted for 43% with a payout of $891,000. Real estate lawyers accounted for 30.5% or $629,000. Massachusetts's personal injury lawyers accounted for 12.10% of defalcation. In upcoming payouts, according to the CSB Assistant General Counsel Karen O'Toole, is with a Massachusetts bankruptcy lawyer www.neilburnslaw.com , Robert Mangano, who took monies from clients in the Lawrence and Lowell area and failed to file for Massachusetts bankruptcy relief. The victims here are often unable to retain new counsel and may loose their homes as a result of the Massachusetts legal malpractice.

The largest category of claims was "unearned retainer" claims, which accounted for 36 of the 63 awards by the Massachusetts Clients' Security Board, with a value of $125,685. At the end of the year there remained $14,073, 090 in outstanding claims.

The law does not have any statute of limitations, like Massachusetts personal injury law, and Massachusetts negligence law, victims are encouraged to report any suspicious activity to the Massachusetts CSB. Victims need not retain counsel for processing a claim, as the CSB will do all of the work for victims when clients' money is stolen. To get to their website, click on Massachusetts Clients Security Board to go right to the form. Victims should be pleased to note that the CSB has over $5 million in reserves to make up for potential large hits.

We urge the pessimists among our readers to acknowledge that notwithstanding all of the above, the 33 lawyers responsible were out of 55,269 practicing lawyers in Massachusetts.

We also want to distinguish legal malpractice from theft. In Massachusetts legal malpractice there is a statute of limitations, and is not usually theft. Further, there is no CSB to investigate and return moneys.

In our detailed study, Getting In Trouble: The Severe Sanctions; 2008-2010, we review all of the sanctions received by lawyers in those years. That study, published on our website, was geared towards lawyers, to give an in depth view of the types of cases resulting in attorney discipline. We reviewed all 116 such cases.

We also published a study entitled Massachusetts BBO Admonitions Study 2008-2010, which reviewed all of the admonitions, or lessor penalties given out by the Board of Bar Examiners. Both studies are worthy reading for Massachusetts lawyers and Massachusetts clients.

Our Massachusetts legal malpractice blog, http://www.boston-injury-lawyer-blog.com/legal-malpractice/, tries to give updates to the law. In addition, we have undertaken a study of all of the lawyer disciplinary matters in Massachusetts for 2008-2010 which was published in our website. That study reviews all 57 admonitions and breaks them down into the types of cases, years in practice and discusses the aggravating and mitigating factors. We reported that study on our legal malpractice blog on January 12, 2011.

In our new study, published today, we review the more serious Board of Bar Overseers cases. The cases we review are the ones in which an attorney in Massachusetts loses his or her license to practice law. In the 116 cases of public reprimands, term suspensions, indefinite suspensions, we examine what Massachusetts lawyers did to deserve the severe penalties.

The study examines all 116 severe discipline cases from 2010, analyzing the data using the following criterion: years in practice, fields of practice, severity of punishment, type of violation, severity of punishment, aggravating and mitigating factors, and others. The results are published on our website in the Legal Malpractice News section.
We have divided the investigation into six articles, each of which is, or will be, published on our website today:

1. Getting Disbarredbegins with the "juiciest cases" including those involving serious crimes, crimes that make headlines, and those involved with stealing client monies.
2. You're Suspended! discusses the suspension cases and the reasoning for the terms of suspensions, including why there are so many "year and a day" suspensions.
3. Failing to Learn from Experience reviews the disciplinary cases such as disbarment, suspension and public reprimand and compares the recent incident to the lawyer's history. We review "experienced lawyers" and "highly experienced lawyers" and see if we can differentiate when it comes to punishment.
4. The Punishment Fits the Crime?, to be published in the future, discusses cases where the resulting sanction seems either too harsh or too lenient for the underlying facts.
5. Private or Public Consequences, to be published in the future, discusses the distinctions between private sanctions (such as reprimands and admonitions) and public sanctions (such as public reprimands).
6. Data Mining, to be published in the future, is a statistical analysis of the raw data, with an eye toward spotting trends in bar discipline.

Undertaking studies such as these are the result of long and laborious reviews of hundreds of documents. We want to thank our extraordinary diligent researcher, Boston Attorney Ezra Reinstein, of The Reinstein Firm, for his focus, his attention to detail, and his hard work in this project. In addition to working in the area of corporate organization and litigation, Attorney Reinstein practices in the national and internationally growing field of renewable energy law.

In a case of first impression for Boston legal malpractice lawyers, the Superior Court entered summary judgment in favor of estate planning attorneys. Sherman et. al. v. Shub et al., dated June 15, 2011 and written by Peter M. Lauriat, Justice of the Superior Court, is a Massachusetts legal malpractice case regarding damages. Apparently the irrevocable trusts they set up and funded in 1992 were discovered in 2004 to not be tax efficient. Fortunately, there were no damages; or were there?

The plaintiffs, two affluent cardiologists in their 60s, discovered that their trusts could result in a higher estate tax because a negligently worded portion of the trusts. For some reason, they waited until after the statute of limitations on legal malpractice, three years, but within the three year statute of limitations for the Consumer Protection Statute, legal malpractice Chapter 93A,to file suit against their former attorneys.

The Court found the plaintiff's expert witness calculation of potential future damages too speculative: negligence damages are instituted to award "actual losses" and not damages that are "remote, speculative, hypothetical, and not within the realm of reasonable certainty."

While a plaintiff need not calculate damages to a "mathematical certainty," the plaintiffs here fell "well short" of proving any damages at all. As the defendants' experts opined, there are too many current variables to reasonably ascertain damages. When will the plaintiffs die? What will their marital status be at that time? What state will they live in? What will the federal estate tax law be? What will their state's tax law look like? Without knowing the answers, damages, if any, are conjectural and therefore too elusive.

The Court's well reasoned decision is peppered with a philosophical quote from John Lennon and cites a law review article with a title take off from Shakespeare called, "First Let's Sue All the Lawyers." The decision sounds in a too speculative damages case, but can be seen as a causation case as well. According to the Court, proving future damages is too speculative when tax laws are ever changing, additional estate planning can be undertaken, future state residence is unclear and the value of the estate is ever in flux. Any one of these factors could be addressed to reduce the future tax burden, especially since the plaintiffs had over three years from when they discovered the negligence until they filed suit (this is a legal malpractice 93A only case http://www.neilburnslaw.com/lawyer-attorney-1674339.html four), and now have had 7 years. Given that time and a host of variables, it is hard to prove causation: the plaintiffs need to prove a causal connection between the negligence of the estate planning attorney and actual future damages. How can a negligently set up trust cause damage when years have gone by in which to rectify the negligence? Who had the last clear chance to avoid the estate taxes?

On the other hand, do we have enough information to examine the Court's decision? There is no information in the decision as to what percentage of the plaintiffs' $6 million estates went into the trusts. It would be helpful to cross examine the defense expert for opinions on how to set up the trust. While the Court mentions that the plaintiffs' estates fail to provide for charitable gifts parenthetically, in a footnote, what bearing does this have or should this have on the Court's reasoning?

The law on speculative damages is not crystal clear in Massachusetts, so this is a case of first impression. The Court reviews a Kansas case where no liability was found because damages were not calculable -- they are a function of the decedent's tax status, assets, and the law at the time of death; a federal case in the 11th Circuit which stated that damages that are derived from "whatever tax laws may be in effect" at death are too speculative to assess now; and, a New York appellate case where the Court found damages "dependent on future changeable events, and, thus, inherently speculative. Such a loss is not compensable."

It is unfortunate that the estate tax laws have become a political football. This creates uncertainty among the affluent. Nevertheless, estate planning attorneys need to redouble their efforts to review their trusts, and to update clients, including past clients, on the law. That they can become less accountable in tort as a result of the inability to speculate is a consequence of this area of law. The only things that are certain are death and taxes, unless you are a negligent estate planning lawyer where the only things that are too speculative are taxes and death.

In a Massachusetts legal malpractice post verdict ruling that was decided by Superior Court Judge John C. Cratsley of the Suffolk Superior Court held that a verdict of $81,250 against Attorney Dane M. Shulman would not be reduced by the one third contingent fee notwithstanding the fact that had Attorney Shulman won the underlying case, the client would have had the reduction because of the fee agreement.

In this case, Rodrigo Cintra, a pedestrian at work, was injured when he was struck by a vehicle driven by someone on his cell phone, not paying attention. Mr. Cintra was seriously injured. He hired attorney Shulman who filed suit but neglected to serve the defendant. He neglected to rectify the failure to serve, and Mr. Cintra lost his rights to a trial. Wherefore, he retained a Massachusetts legal malpractice lawyer.

Continue reading "Massachusetts Legal Malpractice Contingent Fee Offset" »

When Boston attorneyThomas Kiley decided he was no longer interested in representing a plaintiff in a medical malpractice case he left the client, an alleged victim of medical malpractice and unskilled in the law, without a lawyer, facing the opposing aggressive malpractice attorney. The client could not find another lawyer and made several critical mistakes while trying to navigate his civil case through the courts. The case before the Supreme Judicial Court centered on who had the obligation to keep the client; the attorney or his former law firm. The trial court ruled that Attorney Thomas Kiley had to keep the case. This might seem fair to the client, however, the issue effects small law firms which takes a big case on contingent fee, and then the lawyer with the knowledge, time and skill for that case leaves. That firm may not have the ability, capacity or financing to continue with the case. The named partner certainly should not be ordered to represent the plaintiff. On the other hand, the Supreme Judicial Court said, the firm entered into the agreement with the client, so the firm, not a particular attorney, must continue to represent the client .

Continue reading "Massachusetts Lawyer Cannot Withdraw From Case" »

We represent victims of legal malpractice in Massachusetts. Generally, our client alleges that his or her attorney was negligent when the attorney was handling the clients' case. When the attorney has professional negligence insurance, the insurance company, upon notice of the claim, steps in and provides counsel and, in the event of a settlement or judgment, indemnifies, or pays, on the claim. On the other hand, in a recent case when an attorney and his former firm had a fee dispute, they tried to invoke the malpractice insurance policy, saying that "an act or omission in the performance of legal services" invoked the insurance, both to pay for the defense and to indemnify, or pay, any judgment. Federal Judge Ponsor, sitting in Springfield, however, found that the dispute was a business dispute, and not a negligence issue. The Court, however, in Clermont v. Continental Casualty Co. v. Freedman, DeRosa & Rondeau LLP, found that it was a "business decision"

The federal case was derived from a serious personal injury lawsuit. When the victim's attorney left his law firm, he took the client with him. At the time of settlement, the prior law firm filed an action to prevent any payout to the injured party absent getting a share of the attorney fee. Wherefore, the lawyer filed a countersuit against his former law firm. The plaintiff's lawyer also filed a claim against his malpractice insurance company, requesting injunctive relief, saying that the insurance company should defend him, and make any payment required. Judge Ponsor found that the issue between the attorney and his previous partners was "not based on a wrongful act or omission in the provision of legal services" but it was the "business" of providing legal services.

A Massachusetts judge awarded double damages under Massachusetts General Laws, Chapter 93A, in favor of our client who was a victim of legal malpractice. In this case, our client was a double victim. He injured his neck in a Massachusetts motor vehicle accident in 2004 for which another party was at fault, however, after filing a lawsuit, his attorney failed to follow the Massachusetts Rules of Civil Procedure and his case was dismissed in 2009. Our office served Attorney David Driscoll with a 93A Demand letter on March 20, 2010. The attorney failed to respond, in violation of the law, and we had to file suit.

Following a hearing before Judge Cornetta on February 22, 2011, our client was awarded damages and those damages were doubled under Massachusetts General Laws, Chapter 93A because the attorney violated the statute in failing to make a reasonable settlement offer. Further, the Court awarded our client's medical bills to be paid by the offending attorney, his attorney fees to be paid, his out of pocket court costs, and interest at the rate of 1% per month from the time the lawsuit was filed, in June, 2010. Judgment against Attorney David Driscoll was entered on February 25, 2011.

The Boston personal injury lawyers at the Law Office of Neil Burns studied all 57 Massachusetts Board of Bar Overseers public admonitions from 2008-2010, looking for trends. The more severe penalties for Massachusetts lawyers - suspension and disbarment - can only be imposed after review by the Massachusetts Supreme Judicial Court. They are reserved for the most serious violations. We will review Massachusetts disbarment and suspension in a subsequent article. The most severe punishment that the BBO can mete out is the admonition. As we'll see, lawyers can rack up an admonition for a frighteningly wide range of behaviors - even sometimes when acting in good faith.

Number of Admonitions by What Massachusetts Lawyers Did Wrong
17 Poor client communications
13 File-sitting/blown deadlines
11 IOLTA/Billing issues
10 Failure to investigate
9 Incompetence
8 Conflict of interest
3 Fraud/lying to client
2 Disclose client confidences
2 Practicing law while on admin. suspension
57 Total admonitions

Please see our website's Legal Malpractice News section to read the full report.

Traditionally, victims of legal malpractice cannot get money damages for emotional distress. You are entitled to the damages you would have received had your lawyer not been negligent, the extent of the damages you can receive; the "reasonable and foreseeable losses" of the underlying case. See Fishman v. Brooks 396 Mass 643 (1986). That is, notwithstanding the stress you undergo after you find out your lawyer was negligent; you do not have any extra damages. There are, of course, possible exceptions to this rule. If the result of the malpractice was incarceration, false imprisonment, or being confined to a mental hospital as a result of the legal malpractice, there can be money damages against an attorney for emotional distress. For the full case, see Wagenmann v. Adams 829 F. 2d 196 (1987), in an extremely well written, and, frankly, entertaining decision, by Judge Selya, of the First Circuit.

In Massachusetts, to prove intentional infliction of emotional distress, we must show three things:

Continue reading "Massachusetts Victims of Legal Malpractice Get Emotional Distress Damages" »

A case having authority in Massachusetts was recently decided by the 1st U.S. Circuit Court of Appeals, sitting in Boston. All Massachusetts attorney fee agreements must be reasonable, the Court said. Further, Court held that this includes contingent fee agreements. Massachusetts attorneys cannot charge too much for their services in light of the actual work performed. The Boston attorneys at the Law Office of Neil Burns are always up front regarding costs and fees, and they respect the fact that it is your money that fuels and drives your case.

In the case United States v. Overseas Shipholding Group, Inc., 1st U.S. Circuit Court of Appeals. November 1, 2010, the Court held that attorney fees cannot exceed the "outer limit of reasonable" which occurred because an attorney, doing the minimal amount of work, claimed a contingent fee of 1/3, resulting in a claim for $390,00. This was a federal whistleblower case, which has federal rules about attorney fees. That statute allows for up to one half of the ultimate collection to be available for attorney fees. In a complicated fact pattern, involving a federal criminal investigation and an actual hearing regarding the fairness of fees.

Notwithstanding the above case, attorney fees in Massachusetts personal injury cases are rarely reviewed by the courts.

In a case decided by the Massachusetts Appeals Court, the Court dismissed all counts against Attorney Stephen Hrones except the Massachusetts General Laws, Chapter 93A claim.
This was because 93A has a four (4) year statute of limitations. We have prosecuted many cases of legal malpractice in Massachusetts and there is usually a Chapter 93A claim.

In the Chapter 93A claim in this case, there was a "misunderstanding" at the Superior Court level, according to the Appeals Court. The trial court stated that the critical 93A letter was not 30 days before filing suit, therefore violating the notice provisions of the law, Chapter 93A, Section 9(3). However, the Appeals Court determined that there was the misunderstanding and sent the case back to the trial court so that the plaintiff could proceed with a Chapter 93A claim.

Continue reading "Massachusetts Legal Malpractice: Chapter 93A Has Four Year Statute of Limitations" »

The Boston office of the Bar Counsel recommended a Boston attorney loss his license to practice law for one year and one day, and the Massachusetts Supreme Judicial Court agreed. Massachusetts lawyers are barred from sharing fees with, and assisting non-lawyers in the practice of law. The Boston attorneys at the Law Office of Neil Burns provide direct, one-on-one representation to all their clients.

The case involved a Boston attorney who assisted a non-lawyer in the unauthorized practice of law. Thus, the appropriate sanction was the suspension from the practice of law for one year and one day, The Massachusetts Supreme Judicial Court found. The case involved the Boston attorney improperly splitting fees with a non-lawyer, failing to supervise the non-lawyer, failing to communicate adequately with the clients, failing to provide competent and diligent representation to those clients, among some of the violations.

Continue reading "Boston Lawyer Suspended -- Bad Legal Advice" »

We see many cases involving legal malpractice and we often file a lawsuit under the 93A Consumer Protection law. In a recent case, Boston University Professor Barry Unger sued his attorney Patricia Lambert, saying that the $230,000 he transferred to her was a loan, for real estate investment, which was to be repaid with interest. Attorney Lambert repaid some of the money but claimed that $55,000 was for an investment partnership. The jury found that Attorney Lambert was acting as an attorney, not a partner, and made "material misrepresentations" violating her ethical responsibilities to her client. Further, the jury found that the misrepresentations "constituted willful and knowing violations of [the Consumer Protection Statute, Massachusetts General Laws, Chapter] 93A which entitle Unger to double damages." The jury found that Unger was "damaged" in the amount of his attorney fees, necessary to recover the lost moneys against Attorney Lambert. Unger had a 40% fee agreement with his attorney, suing Lambert. The Court then doubled the attorney fees and added costs.

The Appeals Court reversed the trial court on the issue of 93A stating that the deceptive acts were not "separate and apart from the losses associated" with his actual claim. However, the Appeals Court did allow Unger to receive a nominal award plus "reasonable attorney fees and costs."

The Supreme Judicial Court (SJC) found that a law firm that failed to file an appeal in a case that would have been overturned by the Court was negligent. Legal malpractice lawyer Neil Burns noted that the company, Global NAP may have a significant claim against their law firm, Jackson Lewis and Winokur, Serkey & Rosenberg. In this case, when a woman failed to return to work after the eight weeks allowed by the Massachusetts Maternity Leave Act (MMLA) she was no longer subject to the MMLA. She did not return because she had been informed that she could take additional time because she had delivered via C-section. Unfortunately, the Court found that the law, the Massachusetts Maternity Leave Act, does not cover such additional time off.

Thus, even though the Trial Court Jury awarded her over $1,000,000, the SJC held that they would have overturned the verdict. However, the defendant company's law firm failed to file an appeal. Thus, they are responsible and liable for malpractice.