More than a year ago, I blogged in Legal Malpractice Case Sends Dismissed Appeal Back To Appellate Court To Say What It Would Have Done about the malpractice case which came about in the wake of Kanter v. Epstein.

The whole thing was, in a word, ugly. Kanter v. Epstein was a bare-knuckled affair (I suppose that’s to be expected when all of the parties are themselves lawyers, most of them Philadelphia litigators) which ended only when the Superior Court threw out the defendants’ appeals entirely for raising too many issues on the post-trial level and thereby failing to preserve any of those issues.

Of course, that only “ended” the case briefly, and it arose from the dead as a malpractice suit by Epstein against the lawyers (Saul Ewing) for bungling the appeal. The opinion I discussed before was the Court of Common Pleas of Philadelphia County finding that, if the appeal had been done properly, the Superior Court would have reversed — at least in part — the verdict against the defendants.

Last week, the Superior Court affirmed that, yes, if they had heard the defendants’ appeal, they would have granted it:

When the Superior Court of Pennsylvania threw out Spector Gadon & Rosen’s and partner Alan Epstein’s appeal of a judgment against them in a referral fee dispute because the 104 issues complained of on appeal weren’t concise, Epstein sued his personal attorneys at Saul Ewing for malpractice.

That left Philadelphia Common Pleas Judge Frederica Massiah-Jackson to determine the “case within the case,” or whether Epstein and Spector Gadon would have won on the merits at the Superior Court level had the 1925(b) statement drafted by Saul Ewing not been tossed for its length. Massiah-Jackson found Epstein and Spector Gadon would have succeeded in reversing the trial judge’s decisions in the underlying case.

At the request of Saul Ewing, she certified the interlocutory order for immediate review. The Superior Court agreed last week in Epstein v. Saul Ewing that Epstein and Spector Gadon would have won on appeal if the court ever heard the case on the merits.

Like I wrote before, when the going gets weird, the weird turn pro. This litigation has been going on more than a decade, first with the foster parent abuse case, second with the fee dispute, and now, third, with the malpractice case; I guarantee you the legal fees expended so far on the latter two cases are more than double the attorney’s fee of $ 1,293,000 which begat them.

A copy of the Superior Court’s new opinion in the legal malpractice case is available here; the old opinion dismissing the fee dispute case is here.

Now I like schadenfreude as much as the next lawyer, and there’s something superficially gratifying about seeing a lawyer-party and their lawyers thrown thrown out for being over-litigious, but the old Superior Court opinion dismissing the fee dispute case deserves scrutiny.

No court is under any obligation to review, as the defendants initially raised to the trial court following the trial, one-hundred-and-four separate claimed errors.

But courts are obligated to review the fundamental merits of the action. With regard to the Superior Court, Pa.R.A.P. 105 provides:

These rules shall be liberally construed to secure the just, speedy and inexpensive determination of every matter to which they are applicable. In the interest of expediting decision, or for other good cause shown, an appellate court may … disregard the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction.

In the fee dispute case, the trial court didn’t exercise its own powers to reject the Pa.R.A.P. 1925(b) statements filed (the ones with the “104 issues”), it just went on to write an opinion. Even though, by the time the appeal got to the Superior Court, Epstein and his firm had whittled down their appeal to eleven issues, the Superior Court decided on its own to dismiss the whole appeal due to the initial overloading of the 1925(b) statements.

Would it have been so difficult for the Superior Court to have simply sanctioned the defendants instead of dismissing the appeal entirely? They could have ordered a sanctions fee be paid to the court, or could have bounced the briefs and limited the defendants to a particular number of issues. There are long-standing rules-of-thumb adhered to by appellate lawyers that appellants shouldn’t typically raise more than a handful of issues anyway, so why not simply order them to re-file their briefs raising only four issues each? That would have penalized them without deciding the case on the merits, and would have helped the court system recover some of the time wasted from the over-litigating of the case at the trial level.

After all, there were only six issues total decided in the appeal of the legal malpractice case:

Specifically, Judge Massiah-Jackson decided that if this Court had reached the merits, it would have: 1) upheld the award of $215,500 in compensatory damages because the evidence was sufficient for the jury to find an agreement to compensate Ms. Kanter for hours expended in the Tara M. matter and that that verdict represented payment for the amount of hours that Ms. Kanter believed that she had worked with respect to the Tara M. litigation; 2) determined that as a matter of law, Ms. Kanter was not entitled to a referral fee in the Tara M. case due to a impermissible conflict of interest resulting from her appointment as guardian ad litem and guardian of the estate of the child; 3) struck the trial court’s additur to the compensatory damages award; 4) reversed the award of punitive damages against Appellees; 5) vacated the award of fines for contempt; and 6) eliminated the award of attorneys’ fees to Ms. Kanter in connection with her pursuit of punitive damages.

The first issue wasn’t even the defendants’ issue, so we can ignore it. As the Superior Court just ruled, in a slim 32 pages, the defendants would have won on all five main issues. If the Superior Court had simply done that in the first place and focused on the “just, speedy and inexpensive determination of every matter,” it could have spared everyone, including the courts, another round of litigation.

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