MAY 3, 1999

99 LWUSA 417

By Elaine McArdle

Manhattan litigator W. Robert Curtis was a Harvard-trained epidemiologist working for the state of New York when he met and fell in love with a psychiatrist. Shortly after marrying, he and Cheryl Riess-Curtis entered law school together, graduating in 1986.

Fascinated by professional ethics, they decided to chart new waters by opening the country's first law firm devoted entirely to suing lawyers.

"For the past 13 years Cherie and I have done nothing but represent clients injured by lawyers," says Curtis. "We've probably put more legal malpractice cases before a judge than anyone else."

It hasn't been an easy trail to blaze.

"I have my finger on the pulse of all the problems of doing this work, and I can tell you it's very, very difficult," says Curtis.

One of the biggest hurdles is that many judges and lawyers are extremely hostile to what they're doing ñ and would love to see them stumble.

"Our practice has to be perfect," says Curtis. "When we make a mistake, there are judges who just love it, lawyers who exploit it. It becomes an inexcusable act. So we really have to be on our toes in this firm. That's another reason it's difficult to develop this practice."

As a result, they find themselves working almost nonstop, at least 14 hours a day every day of the week.

Still, the rewards outweigh the problems.

"I love it!" says Curtis. "Cherie and I love this business, because most of the case law out there is very pro-lawyer and we're changing that. We're bringing some very refreshing pro-plaintiff law to the books."

Because they had successful careers prior to the law, and a longstanding group of friends who weren't in the legal field, their choice of practice wasn't as daunting as it would be to most lawyers.

"For another lawyer starting out, they've spent their life going to law school, passing the bar. Their most important friends are lawyers. For us, that wasn't a problem because we went to school in mid-adulthood," says Curtis. "We had a collection of friends and colleagues from our prior lives that didn't force us to be absolutely alone and an outcast" when they began suing lawyers.

And, he adds, "The lawyers who are our serious friends respect us very much and understand what we're doing."

One of their closest friends is a highly regarded matrimonial lawyer in New York. Curtis says this lawyer recently stood up for them when another well-known divorce lawyer from Queens began berating them for suing him.

"In this guy's case, his client was very attractive, and he asked her to find other middle-aged, attractive, wealthy women for him to date – and he proceeded to date them. He was moaning and groaning that I put into the pleadings that he got his own personal issues mixed up with his professional responsibility. I made that a public issue and he couldn't believe someone would ever do that. He was using this as an example of what a scoundrel I was," Curtis says.

But their friend insisted that not only were Curtis and Riess-Curtis performing their duties zealously, as lawyers should, but that they were honorable people, not the sort of legal cannibal that the defendant-lawyer was suggesting.

Still, Curtis acknowledges that the reaction to this type of litigation isn't based in logic. Suing lawyers unleashes a tidal wave of emotions, primarily anger.

"The reputation of the lawyer lies at the heart of every malpractice case," he says.

There's an inherent hypocrisy in the attitudes of many attorneys toward legal malpractice, says Curtis.

"Medicine has accepted lawsuits as part of doing business and, in fact, that lawsuits have acted as a deterrent in cleaning up some of the bad parts of medicine," he says. "But law has not accepted [lawsuits] as part of doing business, that if you make a mistake you have to make compensation."

The proof of this lies in the fact that only about half of lawyers have malpractice insurance, he adds.

The great irony, of course, is that lawyers view lawsuits as a method for improving everything but law.

"Lawyers, particularly in medical malpractice and personal injury, say that the cornerstone of their practice is to improve society, to change behavior. They want wrongs punished by punitive damages so that people in boardrooms and hospital managers take much better care in managing risks and extinguishing intentionally harmful conduct, because they know they'll get sued.

"In law those forces aren't in play. I find that to be one of the most interesting anomalies in our practice. You try to argue it, but it runs against the grain of the [legal] community. They can't make a connection that we're sending a message that there's certain conduct [among lawyers] that must be extinguished. The first time you can make that argument is in front of a jury. The lawyers don't want to hear it. They won't apply those principles to themselves.

"No, there's a far higher interest, which is the reputation of this lawyer, the reputation of the judicial system or of the law firm. They see that as far more important than sending any message to protect the public," Curtis says.

Like other lawyers in the field, Curtis says it's not the lawyer-defendants he feels sorry for but the clients they've injured. And he and Riess-Curtis are pained that they cannot accept most of the cases that come through the door, he says. Because it costs them at least $150,000 to litigate a case, they turn away clients whose damages don't reach at least $500,000.

"We have a half-dozen people who call us regularly, who have read our website and decided to try their case against their former lawyer pro se," says Curtis. "They call us regularly, not asking for legal advice but for moral support."

Many cases involve the simplest mistake: missing the statute of limitations. Depending on the value of the underlying case, these can be big-money matters, Curtis says. He also has numerous cases dealing with failure of the lawyer to fully inform the client of the terms of a settlement before agreeing to it.

Some of the cases are almost humorous in the folly involved. Curtis and Riess-Curtis are litigating a case involving a client whose pajamas caught on fire, seriously injuring her. She hired a lawyer, who took the burned pajamas home with him for "safekeeping" – and put them in his hall closet. A couple of weeks later, someone in his family or the maid threw them out – losing the critical evidence for the product liability suit.

In another case, the lawyer lost his wealthy client's prenuptial agreement. As a result, when he and his young wife divorced, she received $3.5 million, when she'd agreed pre-wedding not to take any of his business assets in the event of a divorce.

"The guy drew the agreement up in the '80s. So he had to be using a word processor. But he couldnít even find anything with the terms of the agreement on it," says Curtis, who's seeking $3.5 million for the client.

The couple are meticulous in their approach. "We don't just plead negligence, we plead in detail in 200-page complaints that list the intentional elements, the knowledge, in detail, as well as seeking full compensation plus punitive damages," he says.

"When a lawyer makes a mistake, it's a powerful opportunity to look at a cross-section of what's happening in that lawyer's life and often that lawyer's law firm. You peek in, because you do a chronology of events and assemble every fact related to that mistake. When I do depositions, I go all the way back to their time at law school, so I know what their [legal] knowledge was at the time they made a mistake, what their career development was over that period of time."

Defense lawyers – and their defendant-lawyer clients – "hate me," Curtis says. "None of them have seen litigation like I do it, because we're committed, and we're aggressive, and we know what we're doing."