How Lawyer Failure to Preserve the Trial Record Doomed

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					                                                                     Monthly Newsletter
                                                                      February 2012
                                                                         Volume 4
                                                                          Issue 1

INSIDE THIS ISSUE                    When New York's Courts Will Enforce a
1   When New York's Courts Will
    Enforce a Contract – Even if     Contract – Even if it's Illegal
    it's Illegal
                                     Roughly 1-½ years ago, I wrote about a fascinating case where a defendant
1   How a Lawyer's Failure to        sought to avoid its obligation to pay for goods that it received – and profited
    Preserve the Trial Record
                                     from – on the grounds that the underlying agreement it had with the plaintiff
    Doomed a Negligence Case
                                     was based upon an illegal scheme designed to avoid customs duties in the
2   When You're Barred From          U.S. Fortunately, the judge in that case was able to cut through the
    Bringing a Breach of Contract    defendant’s argument that the contract was unenforceable, because in his
    Claim in New York                view, the illegality of the scheme was only tangentially related – rather than
3   Check Out Our New Website!       being a central part – to the parties’ agreement, and, therefore, the
                                     defendants could not reap a windfall based upon their breach of contract.
4   Fire Hazard Prompts HP to        For more details on that case, see "When Illegal Agreements Can Still Be
    Recall More Than 1 Million Fax   Enforceable in New York."

                                     But, as one of New York’s appellate courts recently pointed out in Village
 The Fun Part of What I Do
                                     Taxi Corp. v. Beltre, the general rule that illegal contracts are
Last week, I received a fax from     unenforceable under New York law is not necessarily a black and white rule,
one of my adversaries that           and it is not without exception. As the Court stated:
admittedly    caught     me     by
surprise: His clients apparently     “Although illegal contracts are generally unenforceable … where the statute
decided to discontinue their
breach of professional services      or regulation requiring that a license be procured … ‘is merely for the
contract action against my client.   purpose of raising revenue it would seem that acts performed without
                                     securing a license would be valid. But where the statute looks beyond the
In truth, I'm not sure what          question of revenue and has for its purpose the protection of public health or
prompted this action on their        morals or the prevention of fraud, a non-compliance with its terms would
part; and I may never know the
answer.                              affect the legality of the business.”

When my client was sued by this
former long-standing client of
                                     How a Lawyer's Failure to Preserve the
his, it hurt him on a personal
level. He felt betrayed.
                                     Trial Record Doomed a Negligence Case
                                     When it comes to the attorneys' summations at the end of trial, New
Every time I called during this
case (which has lasted years), the   York's courts will tend to give attorneys rather wide latitude as to what
anxiousness in his voice was         they can say. The reason for this is straightforward: this is the persuasive
palpable. He was losing sleep.       argument part of the trial.
But when I called my client this
week to tell him the good news,      That said, this latitude is not unlimited, and there are comments that
here was his response:               cross the lines of permissible advocacy. On the other hand, just because
                                     an attorney crosses that line doesn't inherently mean that the other
"You added 10 years to my life."
                                     side is automatically entitled to a new trial (or a "do-over," as my kids
In my line of work, it doesn't get   might say).
much better than that.
                                                                                                 Continued on page 3

    For more articles, reports, videos, news and analysis on these and other important legal issues
                       Visit our Web Site at
       February 2012 Newsletter                                                                           Page 2

We strongly encourage the           When You're Barred From Bringing a
readers    of   our    monthly
newsletter to provide feedback      Breach of Contract Claim in New York
about issues they would like to
see addressed in our future         Logic would seem to dictate that if you have an agreement with
publications.                       someone, and the other side fails (miserably, perhaps) to live up to
                                    their end of the bargain, that you have a strong breach of contract
To do so, please contact us         claim.
through    our      website, or via
                                    Under New York law, that isn't always the case.
e-mail at
                                    Perhaps the most glaring exception to the general rule (that it
                                    would yield a viable breach of contract claim) is in the malpractice
   “[A]s a general rule, once a     context, particularly in the legal malpractice realm. In those cases,
     claim is brought to a final    New York's courts have held that
    conclusion, all other claims
      arising out of the same               "[I]t is well established that an action for breach of
      transaction or series of              contract, negligence and breach of fiduciary duty are
 transactions are barred, even if           duplicative of a legal malpractice claim, as all claims
  based upon different theories             arise from the same set of facts and seek the same
      or if seeking a different             damages, and therefore, should be dismissed.
              remedy."                      (Laruccia v. Forchelli, Curto, Schwartz, Mineo,
                                            Carlino and Cohn, LLP, 295 AD2d 321; Mecca v. Shang,
                                            258 AD2d 569).
    Law Offices of
                                    As a practical matter, this also means that if you lose on one of the
  Jonathan M. Cooper                legal theories of liability, that determination may effectively
                                    preclude your ability to proceed on the other theories that arise out
 Long Island
                                    of the same set of facts.
 483 Chestnut Street
                                    Here's why:
 Cedarhurst, NY 11516
                                            "[A]s a general rule, once a claim is brought to a final
                                            conclusion, all other claims arising out of the same
 New York City
                                            transaction or series of transactions are barred, even
                                            if based upon different theories or if seeking a
 135 West 29th Street
                                            different remedy" (Breslin Realty Development Corp.
 Suite 801
                                            v. Shaw, 72 AD3d 258).
 New York, NY 10001
 (By Appt. Only)
                                    The moral of the story? If you're going to take a shot in litigation,
   We Appreciate Your
                                    make it count; you may not get another chance.

       This publication is intended to educate small businesses and individuals about general litigation matters, as
       well as personal injury and defective product issues. It is not intended to be legal advice, and does not
       constitute an attorney-client relationship until we have a written agreement. To discuss your particular
       issues or case, please contact the Law Offices of Jonathan Cooper at 516.791.5700.
   February 2012 Newsletter                                                                                                 Page 3

Check Out Our New Website!
 We are very excited to introduce our
 new website, which is dedicated
 business litigation issues, with a
 particular focus on non-compete
 agreements, breach of fiduciary duty,
 and breach of contract.

 The site is designed to answer more
 of the questions we’ve been getting
 on these issues – so that New York
 consumers can be better educated
 about their legal issues – even before
 they contact a lawyer.


How a Lawyer's Failure to Preserve the Trial Record Doomed a Negligence
cont’d from page 1

Consider the Appellate Division, First Department's recent decision in
Chappotin v. City of New York. In that slip and fall case, the defense attorney
made numerous inappropriate and inflammatory remarks. Here's a small
       "[P]laintiff is a man who has played the system going on 15 years";                                      acknowledging the
                                                                                                                  distastefulness of
       Noting that plaintiff had been on disability since 1995, "[H]ere's                                           defendant's
        someone who doesn't have a concern about getting medical care. He                                             counsel's
        doesn't have a concern about working."                                                                     statements, the
                                                                                                                  appellate court ...
       "[T]his is someone who understands how to make his way in the world.                                    reinstated the jury's
        He has come here with a story about falling here."                                                       verdict dismissing
                                                                                                                 the case because
Given the gross impropriety of these remarks, you would assume that the                                        the plaintiff's attorney
plaintiff would be entitled to a new trial, right? Guess again.                                                 failed to ... preserve
                                                                                                                   his objections.”
Despite acknowledging the distastefulness of defendant's counsel's statements,
the appellate court nevertheless reversed the trial court's order and reinstated
the jury's verdict dismissing the case, because "plaintiff failed to object to 13
of the 15 comments of which he now complains ... [and therefore] failed to
preserve his objections and the verdict should be reinstated."
COMMUNICATION POLICY: As a general rule, Mr. Cooper does not accept unscheduled phone calls. This policy affords
Mr. Cooper the ability to pay closer and more focused attention to each case, resulting in more efficient and effective representation for
his clients. Moreover, it avoids the endless and needless game of phone tag played by most businesses and law firms. To schedule a
phone call or in-person appointment with Mr. Cooper, please call his office at 516.791.5700.
       February 2012 Newsletter                                                            Page 4

     Fire Hazard Prompts HP to Recall More than 1 Million Fax
     If you're HP, this has got to hurt.                  One last note: Do you even have to guess
                                                          where these recalled products were
     Last week, the CPSC, in conjunction with             manufactured?
     Hewlett Packard, jointly announced the recall
     of more than 1,000,000 of its fax machines           That's right: China.
     across the western hemisphere, with over
     900,000 units being recalled across the United
     States, and nearly 250,000 more north and
     south of the U.S.

     The Problem: After receiving reports of several
     incidents of its fax machines catching fire, HP
     felt compelled to "pull the plug" and recall their
     fax machines. Apparently, HP determined that
     the overheating was caused by the failure of an
     internal electrical part of the fax machines.

     Which Specific Products Were Recalled: HP
     fax 1040 and 1050 machines

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