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Tag Archives: Attorneys

Attorneys – First Impression — Civil Practice – Discovery – Deposition – Opposing Counsel – Insufficient Showing – Subpoena Duces Tecum – Privilege (access required)

Blue Ridge Pediatric & Adolescent Medicine, Inc. v. First Colony Healthcare, LLC Where defendants have failed to show that (1) there are no other means to obtain the information they seek, (2) the information possessed by plaintiffs’ counsel is relevant and non-privileged, and (3) the information is critical to the issues at stake in this litigation, defendants are not entitled to depose plaintiffs’ counsel.

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Attorneys – Tort/Negligence – Legal Malpractice Claim – Case Within a Case – Snowy Road Fishtail – Arbitration — Civil Practice – Service of Process (access required)

Tarrant v. Hudson (Lawyers Weekly No. 12-16-0847, 22 pp.) (Martha A. Geer, J.) Appealed from Wake County Superior Court. (Abraham Penn Jones & Paul G. Gessner, JJ.) N.C. App. Unpub. Holding: Even though the defendant-attorneys failed to file a personal injury action on behalf of plaintiff before the statute of limitations expired, and even though plaintiff later obtained a default judgment against the driver and owner of the other car involved in his accident, since plaintiff only showed that the other car fishtailed and spun out on an icy, snowy road, plaintiff failed to prove that the other driver was negligent. Therefore, he failed to prove the “case within a case” necessary to show the attorneys committed legal malpractice when they missed the filing deadline.

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Criminal Practice – DWI – Attorneys – Standby Counsel – Fees – Witness’s Arrest (access required)

State v. Bankert The trial court explained to defendant the role standby counsel would play at his trial, and defendant clearly communicated to the trial court that he wanted to represent himself with the assistance of Michael Dye serving as standby counsel. Further, the record reflects that defendant benefitted from Dye’s assistance throughout his trial. There is nothing to indicate that the trial court abused its discretion by appointing standby counsel for defendant and by ordering defendant to pay the corresponding attorney’s fees of $3,502.50.

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Criminal Practice – Attorneys – Effective Assistance – Witness Credibility – No Admission of Guilt – Defendant’s Age (access required)

State v. Vester Defendant was charged with assault with a deadly weapon with intent to kill, assault by strangulation, assault on a female, and misdemeanor larceny. Even though defense counsel said in his opening statement that defendant didn’t try to set the victim on fire and never tried to choke her, and even though defense counsel admitted in his closing argument that the victim had “gone through something,” defense counsel did not implicitly concede that defendant was guilty of assault on a female and larceny. Defense counsel maintained throughout the trial that the jury should find defendant not guilty of any of the charges. Defendant has failed to show that his attorney rendered ineffective assistance of counsel.

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Criminal Practice – Jury Instructions – Jury Nullification – Appeals — Attorneys – Ineffective Assistance Claim – MAR (access required)

State v. Kelly Defendant contends that the trial court erred by failing to instruct the jury on jury nullification. We know of no authority for the trial court to instruct the jury on jury nullification, which is the jury’s knowing and deliberate rejection of the evidence or refusal to apply the law. If defendant’s argument were to be adopted, it would lead to chaos and an absence of justice in North Carolina.

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Criminal Practice – Mistrial Motion – Attorneys – Potential Conflict of Interest – Constitutional – Double Jeopardy – Evidence – Opening the Door (access required)

State v. Hunt (Lawyers Weekly No. 12-07-0744, 36 pp.) (Linda Stephens, J.) (Donna S. Stroud, J., concurring in part & dissenting in part) Appealed from Randolph County Superior Court. (Edwin G. Wilson Jr., J.) On remand from the N.C. Supreme Court. N.C. App. Holding: As to defense counsel’s possible conflict of interest, the trial court held a voir dire of the potential witness’s therapist, discussed the latitude and limits of an attorney’s responsibility to prepare witnesses for trial, discussed the possible grounds for a mistrial with defense counsel extensively, and assured defense counsel that a mistrial would be declared if grounds arose as the trial proceeded. In light of the trial court’s consideration of defense counsel’s potential conflict of interest, we cannot say that the trial court abused its discretion when it denied defendant’s motion for a mistrial.

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Civil Practice – Collateral Estoppel – Tort/Negligence – Attorneys – Legal Malpractice Claim – Settlement (access required)

Harmon v. Hunt In the unpublished opinion of Harmon v. Frangis, 197 N.C. App. 231, 676 S.E.2d 670 (2009), this court concluded that plaintiff’s counsel therein (and defendants herein) acted within plaintiff’s authority when they negotiated a settlement with Frangis. In this legal malpractice action, plaintiff seeks to re-litigate the issue of whether the defendant-attorneys acted without her authority in reaching the settlement with Frangis.

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Arbitration – Debt Reduction Contract – Attorneys – Non-Signatories (access required)

Stewart v. Legal Helpers Debt Resolution, LLC Where defendants who did not sign the contract between plaintiff and defendant Legal Helpers Debt Resolution, LLC (LHDR) are either agents of LHDR or third-party beneficiaries of the contract, these non-signatory defendants are entitled to seek enforcement of the contract’s arbitration provision.

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Attorneys – Tort/Negligence – Legal Malpractice – Standard of Care – Bankruptcy – Damages (access required)

Miller v. Orcutt The standard of care for a bankruptcy attorney is the same in the Western District of North Carolina as it is in the Eastern District of North Carolina; therefore, the plaintiff-clients could present the testimony of a bankruptcy attorney from the Western District to establish the standard of care in a legal malpractice case against a bankruptcy attorney in the Eastern District.

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