Doing the Dozens

Q: You sound busy. Or do you always sound like this?

A: I guess I always sound like this. But I am busy. We’ve been just swamped. I cannot think of a time in the last 15 years that I’ve actually gotten to my back-burner projects. But it’s been really, really busy the last two or three years.

Q: Because attorneys are getting sued more often or because your reputation is growing?

A: I’d like to say it’s the latter. [Laughs] I mean, I can’t speak for other firms but our firm has a pretty big bench of people who do legal mal and professional liability for other types of professionals. A lot of [the increase] is driven by the insurance coverage. The claims incidence has gone up. I think it has a lot to do with the economy, too.

Q: Meaning?

A: Meaning 20, 25 years ago, things happened in people’s lives and they just took the lumps and moved on. Nowadays, they can’t necessarily withstand the lumps and so look for someone to blame. The professionals are usually in that line of fire.

In Georgia, we have a lot of claims that arise out of real estate transactions. Georgia is number one or two in bank failings. Then we’ve had a lot of foreclosures. A lot of states have, but we’re on the high end of the list.

Q: Who would you be representing in a case like that?

A: We would be representing the lawyer who had some role in the real estate transaction. We also have a pretty good amount of work where we defend appraisers.

Q: Because they appraised something before the bottom fell out of the market?

A: Not necessarily. There were a lot of claims out of the re-fi craze in the early 2000s, and a lot of property flipping, or people buying distressed properties and then selling them. Later the bank or the buyer alleges that the value of the property was misrepresented to them. Recently, we’re seeing more claims arising out of commercial transactions than residential. There’s just a wide variety of claims. The FDIC [Federal Deposit Insurance Corporation] has been cleaning house with the bank that closes down, takes a look at the records and looks for any possible claims that it might want to pursue. The general consensus among the people that do our kind of work is that it’s the tip of the iceberg.

Q: I still don’t understand why this would be malpractice. What are the claims?

A: It can run the gamut. When the loan goes bad, or when the property is foreclosed, everybody starts looking around at the files. They will be looking for things that the closing attorney either didn’t do that he was instructed to do or knew and didn’t disclose. “You knew that the seller was a fraudster,” or “You knew that the property is actually only worth this much.”

Q: How many cases are you juggling right now?

A: I have a pretty big case list, but they’re in all different phases. Not all are active at the same time. Some are on appeal. Some are claims or potential claims that we’ve evaluated and have made some recommendations, but we’re waiting to see whether anybody does anything.

Q: Are we talking dozens?

A: Multiple dozens.

Q: Do you ever have trouble sleeping, thinking about your cases?

A: I frequently wake up around 4 in the morning thinking about something that’s due, an upcoming trial, or just a strategy assessment that I’m making. I wish I could shut it off.

Q: How did the Leibel v. Johnson case come to you?

A: I think the original case was filed in 2004. Originally, it was handled by one of our competitor firms. Then it went over to another law firm and one of the lawyers there tried the case. There was a verdict that was bigger than they wanted so they filed a motion for new trial, a motion for JNOV [judgment notwithstanding verdict], asking the judge to totally turn it around and have a new trial. We were retained right around the time the initial motion was filed. It was kind of a funny coincidence. My partner Michael Goldman was contacted by one person at the insurance company and I was contacted by somebody else.

Q: What was the case about?

A: There were a whole bunch of issues, but initially the one that had the most sex appeal was a really odd circumstance that involved the jury foreman. He had been a defendant 15 years before in a lawsuit that our client, Steven Leibel, had filed on against the city of Alpharetta and the City Council. At that time, [the foreman] was one of the City Council members. So he was actually a defendant in a lawsuit that Steven Leibel had prosecuted, and Steven Leibel had actually taken this guy’s deposition 15 years earlier. When they were doing the voir dire … they ask everybody, “Do you know any of these people?” and he did not say he knew Mr. Leibel. And Mr. Leibel did not recognize him. After the verdict, it was discovered, based on some additional investigation, that this particular juror had actually had this prior relationship with Mr. Leibel.

So that was the basis for one of the post-trial motions, and the other basis had to do with the expert issue, which ultimately went to the Supreme Court. The Court of Appeals found that the problem with the juror wasn’t really a problem because nobody remembered it. But then they also refused to go with any of our arguments, including on the expert issue. They didn’t think that that was important. We were granted cert on our issue, and we were very, very happy that we got a 7-0 opinion in our favor.

Q: Could you explain the expert issue?

A: The expert issue was whether a legal expert in a legal malpractice case can give an expert opinion on what a jury would have done. In Leibel’s situation, Dr. Johnson’s discrimination case was dismissed on summary judgment; and she alleged that the reason that summary judgment was granted against her was because of Steven Leibel’s negligence.

There was another layer because Steven Leibel attempted to file a post-trial motion … but it was a day late. So the post-trial motions were denied. So we have the classic case within a case. In the jury trial against Steven Leibel, the plaintiff, Dr. Johnson, had the burden of proving to this jury that in the other trial, if she had gotten there, she would have won.

The reason you have an expert is to explain to the jury of lay people what a lawyer with professional training should have done, rather than what he did do or didn’t do. In this case, the legal expert said that the plaintiff basically went one question too far.

Q: Which was?

A: I’m paraphrasing, but it was essentially, “How would Dr. Johnson have fared before a jury?” Then he gave some opinions. The expert on Steven’s side actually deflected that and refused, and said, “I cannot give that opinion.”

Our argument was, “Why do you even need the jury at that point?” Because he’s just told them that the other jury would have said Dr. Johnson wins. So you’re taking it out of the hands of the jury, and that’s the whole point of the case within the case, or the trial within the trial, however you want to say it.

That does not mean that in a complex case you can’t have any testimony on causation. You just can’t have it in this particular circumstance. In a litigation setting, you can’t have somebody on the expert stand telling the jury what another jury, just like them, would have done.

Q: How did you wind up in professional liability defense?

A: It kind of chose me. When I was in law school, I interviewed on campus, and I got a clerkship with this firm. One of the guys who came to campus and interviewed me was Lane Young, who at the time had been working at the firm for a number of years, but he did a fair amount of legal malpractice work. When I came on permanently, I was assigned to Lane, who happens to be a [University of North Carolina] Tar Heel like I am.

Within the first three months that I was here, we—and when I say “we,” I was there but my role was very nominal—tried a case called Allen v. Lefkoff, which ultimately went to the Georgia Supreme Court. It was very exhilarating and interesting, and intellectually challenging. So mainly because of just the good fortune of being assigned to a couple of lawyers who had been old hats doing legal malpractice at our firm, I developed that [practice area]. And I just continued working in that area, and eventually it became almost my entire practice. Now, it’s probably at least 75 percent because we do a lot of other professional liability work, too.

Q: Besides Lane Young, who influenced you?

A: I was never one of those kids who grew up saying I want to be a lawyer. Even by the time I was a senior in college, I wasn’t sure. Growing up, I had one lawyer in my family: my stepfather. I’ve known him since I was about 12. He was also a state rep, then he was a congressman. I don’t think he directly influenced my decision to go to law school, but he certainly served as a role model. He is much more conservative than I am, but he has an incredible work ethic and dedication to doing what he thinks is the right thing. And he’s really honest. Though we butt heads on a lot of social issues, he has always been there [for me]. He was able to get me a Washington, D.C., internship between my junior and senior year, which also kind of got me thinking about [the law].

Someone else I could say was a mentor was a college professor my junior year. He was a young, enthusiastic professor, and he taught a con law class that was a poli-sci class. It mainly focused on criminal procedure. It was at 8 in the morning so a lot of people didn’t come, and those of us who actually showed regularly were really fortunate. He took a number of us under his wing and really talked us through what it means to be an attorney, and the different types of law. He actually wound up writing my law school recommendation to UNC, which is where he had gone.

Q: What’s his name?

A: I want to say his first name was Michael. I called him Professor LeRoy.

Q: And your stepfather?

A: Tom Ewing. He was in a rural part of Illinois. Central Illinois.

Q: Is that where you grew up?

A: That’s where I lived from the time I was 8 years old. I went to college at the University of Illinois, so I stuck around there until I went to North Carolina.

Q: How did you wind up with Hawkins Parnell Thackston &Young?

A: [In law school] I got lucky enough to get an interview with the firm, and then I got a callback interview and got the offer for the summer program. I was a small-town girl, and I wanted to go the city.

I love the firm. Everybody is very collegial. We genuinely like each other. We certainly butt heads, but we make up and get along. We do good work, and I love the work that I do. I think our firm is uniquely situated, certainly in the Southeast if not nationally, to where we have excellent lawyers that handle legal malpractice. We’re known for it.

I can tell you that what I’ve seen with a lot of other female lawyers is that as they started getting into their 30s and having families, they did not always stay in the practice. It’s sad because I think there were a lot of intelligent, highly creative legal minds that are now out of the practice. Some are coming back in, and that’s good. I never did that. I think that’s part of the reason I have such a full practice right now.

Q: You never left the practice or you never started a family?

A: I never left the practice. I have three daughters. This is a good testament for how exciting this kind of practice is. My kids are now 10, 13 and 15. I don’t miss that much of their lives—obviously they’re in school—but if I thought my job was drudgery, I would have never stuck it out. This is the perfect fit for me. I just really enjoy working with other professionals and helping them get out of pinches. I actually know my clients.

Q: You represent people in your profession.

A: Right. It’s a great practice area. It’s never boring. From talking about a guy who tried a murder case, to something having to do with a child custody case, to a securities offering: It goes everywhere. It’s pretty amazing the variety of cases I have.

Q: Are you accepted in the South?

A: Because I’m a Northerner? I do not feel like I’ve been home-cooked, I guess I would say. If I have a legal malpractice case somewhere in South Georgia, and it’s a small-town courthouse that looks like the one in My Cousin Vinny—an old historic building, very Southern judges—I have never noticed any sort of discrimination, either in what happened in my case or people’s treatment of me. Now what does happen is, “Oh, you Atlanta lawyers, you just think you can come in here, and …” That kind of thing.

I interviewed for jobs in North Carolina. I think it’s changed a lot, but back 20, 22 years ago, Charlotte even, which now is just a huge banking capital, you would spend the entire interview trying to explain why the heck you wanted to live in North Carolina.

Q: Because they didn’t believe you?

A: They didn’t believe it. I was like, “You live here, and you’ve never left the state. Why would you think I wouldn’t want to live here?” You’d come into an interview, and you’d introduce yourself, and they’d say, “You’re from north of the Mason-Dixon Line, aren’t you?” That would be a question in the interview.

I don’t think we really get that anymore. I think when it really comes down to it, the question is, “Are you skilled or are you not skilled?” If you’re prepared, and you’re skilled, and you’re smart, you can make it. It doesn’t really matter if you have a super-thick New York accent. Now with a jury, maybe it would, but I don’t really think the judges seem to do that. I did have one lawyer call me “little lady” when we were waiting our turn. He put his arm around my shoulder and called me “little lady.” But here’s the thing: if you want to be in a litigation practice, you’ve got to have a thick skin. And I have a really thick skin.

Q: What was your reaction when he did that?

A: I just laughed. I will say this: I beat the guy.

I’ve lived in the South now for more than half of my life. There are a lot of Northerners here now. I’m one of the people on the hiring committee. We always joke about how I try to hire people from New Jersey.

Q: How often have you been hiring in the last couple of years? Because I’ve heard it’s difficult for law school grads to get work.

A: It is hard for law school graduates to get work, but we generally don’t hire people straight out of law school. We mainly hire laterals who have at least a couple of years’ experience. But we have hired quite a bit.

Q: An increase in firm size or to replace people leaving?

A: Both. The firm has expanded quite a bit. We’ve added several new offices; we’ve done some hiring for those offices. In Atlanta,  I would say that maybe four or five years ago, when the economy first started to go down, we never really stopped hiring. We were just very cautious about it. If I was really swamped, I wouldn’t just immediately say, “I’ve got to hire somebody.” I would try to manage it for a while, then when it got to the point where I was boiling over, and somebody else might say, “I’m boiling over, too, maybe we could share somebody.” So we would hire somebody.

This type of work, litigation, you have to be able to juggle a lot of balls and not be a complainer. It’s not an easy way to make a living. It’s very exciting, but some people, they don’t want to do it. They’re not jugglers.

Q: You argued the Leibel case before the Georgia Supreme Court. What was that experience like?

A: I spent a lot of time preparing for it. My client and his wife came to the oral argument, and they were very pleased. Even if we had lost, I felt like they were pleased with how it went. It was a lot different than any of the other arguments that you do. There are more people up there asking you questions.

Q: What questions?

A: That’s the thing. You just never know exactly what they’re going to ask. I had gone to see some arguments a week beforehand to get a feel for the questions; and I could not say that anyone asked me a question that I was not prepared with an answer. I was really happy about that. That’s the thing you always worry about. You don’t want to get stumped by the panel.

One of the other things that was really gratifying about the case: My kids got to see the argument on the video. They got to see what keeps me away from them. You know, “What exactly are you doing when you’re not at home eating dinner with us?” I do cook dinner most nights. But we have to maximize the time together because they’re super busy, and so are my husband and I. But that was really fun to be able to show them. “Well, here’s what Mom’s doing.”