
Lawyers aren't always entitled to believe their clients.
That's the thought I had after reading
Brophy v. Mei, a Milwaukee County case recently decided by the Court of Appeals.
In
Brophy, the plaintiff, Timothy Brophy
, was a landlord sued by his tenants in a class-action suit. After trying to hire several lawyers, he hit on Daniel Mei and Mei & Associates, meeting with them on May 17, 2006 to hire them to defend the lawsuit.
At that meeting, Brophy said he told his lawyers he'd been served
about thirty days before the meeting but couldn't recall the exact date. The lawyers, though, said that Brophy had given them the exact date and that based on the exact date, an answer was due on May 24, 2006 -- so that's when they filed the answer.
In reality, Brophy had been served April 4, 2006, making his answer likely due on April 24 (but certainly no later than May 18). The untimely answer meant that Brophy was in default, and a motion for default judgment was filed against him.
Brophy claimed later that Mei & Associates didn't try to defend that default judgment at all, but that doesn't seem to be true;
court records show that they at least argued the case. The default as to liability left only class certification and damages as issues in the case.
The Mei firm then withdrew from representing Brophy, and Brophy hired a new attorney. Somewhere along the way, Brophy was served with requests for admission, but he never answered those, so damages were now fixed, too, and Brophy opted ultimately to settle with the class-action plaintiffs. (The underlying lawsuit dealt with issues of security deposits and building code violations.)
Brophy then sued Mei & Associates for malpractice. Mei defended the case and on summary judgment, argued that Brophy needed an expert witness to prove they did something wrong.
The trial court, and the Court of Appeals, agreed: Brophy had not hired an expert witness, and because of that, he couldn't prove that Mei had committed malpractice.
Brophy's argument was simple:
Mei, he said,
missed a deadline, and in Brophy's view, missing a deadline doesn't require any expertise to analyze. Since
expert testimony is only required when a layperson wouldn't be able to understand the issues, Brophy felt he shouldn't have to have an expert witness say Mei committed malpractice by not filing an answer in a timely manner.
As I said, the courts disagreed, and found the issue to be not whether Mei had messed up by filing a late answer, but instead,
what a reasonable lawyer would have done when confronted with an unclear date of service.
That's kind of a crucial point in this case, one that gets glossed over: Brophy's testimony was that he'd told the firm he'd been served about 30 days before their meeting. The firm testified that Brophy gave them an exact date.
The Court of Appeals found that discrepancy in facts to be unimportant (or, in the Court's unique phrasing, "
lack[ing] the element of genuineness.") Instead, the Court said the issue is "
what a reasonable attorney would do when faced with a client's representation as to the timing of service."
The Court seems to have decided, by phrasing the issue that way, one of two things: Having said that the discrepancy in facts was not
genuine (a novel standard for this kind of case), the Court must then had construed (as summary judgment requires) the facts in Brophy's favor -- which means that the Court must have decided that Brophy testified that he'd been served about thirty days before the meeting with Mei.
Which, in turn, means that the Court should have held something other than what it did. If Brophy was served thirty days before meeting with Mei, he was either
already 10 days late on his answer, or he had
fifteen days left to answer. It's more likely that the time had expired:
Section 802.06 gives either 20 days, or 45 days, to answer. A defendant only gets 45 days
if a defendant is an insurance company, which wasn't the situation in the case against Brophy. (But Brophy may have had 45 days; I routinely give 45 days to answer in the summonses I file.)
If Brophy was
already late, then the almost the
only thing Mei could do is file a motion to enlarge the time to file an answer: filing an answer alone would probably be insufficient (although, I'll say, I've done that on occasion for a client who got to me too late: I've filed an answer and waited to see if the other side challenged it before filing the motion to enlarge time. If they don't challenge it, they may be waiving their right to do so.)
If Brophy
wasn't late yet -- if the summons gave him 45 days, then Mei filed an answer in a timely manner, doing so on May 24, which would be within 45 days of when Brophy recalled being served.
The Court of Appeals didn't say that one or the other version of events was accurate-- that's an issue of fact not determinable on summary judgment. Instead, the Court set up the issue as "determining what lawyers do when their information about the timing of service."
(The complaint's notation as to the date of service was illegible, something that occurs more often than you'd expect.)
I can tell you what
I do in such a case: I file an answer
that day. But that's not what
every lawyer does. That's just what
I do. If you are a client of mine and you call me and you tell me that you got served but you're not sure what day you got served, I'm going to file an answer that very day, just to be on the safe side.

That's not my only option: I could call the opposing party and find out when the client was served... if they know. If you call my office, I probably won't know when your client was served, without going and getting the file and looking. I calendar when answers are due, but not the date of service, as a general rule. I also may not be able to take your call right away.
You could try to call the process server... if you know who it is, and if you can get a hold of
them and they have the information available.
But taking
extra steps to determine when a client was served means that you
don't know when a client was served -- that either your client doesn't remember and you've got no records to look at, or you don't believe your client for some reason.
And that's
not what Mei said in this case: Mei said they
did know when the client was served. Mei's testimony was (apparently) that based on what Brophy told them, they
did know when the client was served and calculated an answer date of May 24 and filed their answer that day.
The Court of Appeals then set up the question based on that -- saying that a reasonable attorney could do
more than one thing when a client gives them a date certain as to the date of service. "
at issue is Mei & Associates' reliance on Brophy's recollection as to service."
In other words, was it malpractice for Mei to believe their client? The Court of Appeals didn't decide that: that was the question, but the question couldn't be answered because Brophy didn't have an expert to say whether i
t was reasonable for Mei to believe his client.That won't surprise any lawyers reading this, either: Clients are often not reliable sources for information that may be critical to the case -- because they're not writing down dates and they don't know what's important when it's happening to them. When a sheriff comes to the door and serves them papers, clients don't know, at that point, that
who is serving them, the
date they're served, and the
way they're served (as well as how many times someone's tried to serve them)
might be important. What they know is they've just been sued.
So any experienced lawyer measures what his or her client tells him or her against other evidence and information available: looking at the calendar to determine whether the day a client says he was served was a reasonable day to be served, looking at the filing date of the complaint (I once had a client tell me she was served on a date that turned out to be two days
before the complaint was actually filed), checking with opposing counsel, if there's time, and taking other steps to make sure that the date your client
believes something happened is the date that something actually happened.
The Court of Appeals, and the Circuit Court, were right to require an expert witness to say what Mei
should have done, given that Brophy's recollection had him in default already, while their own recollection said they were well within the limits. Without having sat through that client interview, I can't say what I would have done -- so no juror could have said that Mei screwed up.
That decision should probably have been the end of the case -- but the Court went on to decide that Brophy couldn't have won anyway because, it said, he didn't prove
causation.Malpractice is only malpractice if it causes the damages; no matter how badly a lawyer might mess up, if the client would have lost anyway, there's no malpractice there. In Brophy's case, assuming that Mei did mess up in the answer deadline, that still left damages to be assessed, and apparently Brophy could have greatly reduced (or possibly eliminated) the total damages claimed against him: so he might have been found to have violated the law, but not owe any money.
Only Brophy didn't answer those requests for admissions -- so damages were assessed against him and he was forced to settle. Brophy claimed that the requests were moot by the fact that he hadn't answered (with Mei claiming that the answer, to be factually correct, would have had to admit at least
some liability [
on that note, I had to chuckle -- I can't recall a time I've seen an answer admit some
liability, even when the answer should
do so. I've seen, in fact, answers that deny everything up to and including the identities of the plaintiff. So I chuckled, and I wondered if the answer that Mei filed actually did
admit some liability. I'm guessing -- guessing
-- that it didn't]
That failure to answer doomed his claim against Mei, because Brophy couldn't prove
Mei caused the damages, the Court of Appeals said.
I think the Court got it
half-right, in that analysis: The Court was
probably right, but didn't get to that answer the proper way, and the proper way probably required a trial.
The Court's analysis of whether Brophy could win against Mei after failing to answer the requests wasn't a question of
causation at all. Mei had filed an answer untimely, resulting in a default on liability and setting the stage for a hearing on damages. Brophy correctly pointed out that losing some legal rights is harm in and of itself.
So the question becomes
what harm did Mei's act actually cause (if any). The Court said that Brophy couldn't prove Mei's act harmed him,
at all, because Brophy had failed to answer the requests for admission, thereby admitting the amount of damages and giving up the fight.
That analysis doesn't quite jibe, because Brophy wouldn't have to prove that Mei's actions were the
only cause of his damages, but just a
substantial cause of his damages.

Instead, the Courts
should have analyzed the case in one of two other ways.
One way to look at Brophy's failure to answer the requests was to ask whether that was really a kind of
superceding cause. A superceding cause -- or intervening act -- can relieve a party of the consequences of negligence.
Stewart v. Wulf, 85 Wis.2d 461, 475, 271 N.W.2d 79, 85 (1978). To qualify as such, the intervening act must actively cause harm
after the first negligence. There are some qualifications to the protection an
intervening act can provide -- for instance, if the act is one that the original tortfeasor could have foreseen, it won't eliminate liability -- but otherwise, an intervening negligent act is one that eliminates liability from the
first negligent actor and puts it all on the
second negligent actor.
Intervening act isn't a perfect analysis in this case -- because it's not a third party acting, but Brophy -- but it's one way to look at
Brophy v. Mei, a way to look at it that the Courts didn't seem to use.
The
other way to look at
Brophy v. Mei is comparative negligence, a simple analysis that asks whether Brophy, or Mei, was more negligent in producing any harm to Brophy. If Brophy is more negligent than Mei, then Brophy can't collect any damages (even if Mei was negligent.)
The trouble with both of
those approaches is they probably require a trial, not summary judgment: comparative negligence is almost impossible to determine on affidavits, and the
intervening act analysis is pretty fact-intensive.
Instead of remanding to determine whether Mei had demonstrated that Brophy's failure to answer was an
intervening act absolving any prior negligence, or to hold a trial on who was more negligent here, the Court simply held that Brophy's failure to answer requests meant,
as a matter of law, that Mei hadn't caused
any harm -- that
all the harm was caused by Brophy.
Which doesn't make any sense: I mean no disservice to Mei (I don't actually think they did anything wrong here, for a variety of reasons) but if Mei answered late, then, under Wisconsin law, Mei
per se cost his client some rights, and under
Hennekens v. Hoerl, 160 Wis.2d 144, that's damage: So Mei
caused damage to his client. Was that damage
uncaused by Brophy's failure to answer the requests?
Uncausation isn't a legal theory I've ever heard of (and something that can't happen, absent Superman reversing the Earth's spin) -- just as I've never heard of
genuineness being a standard on summary judgment.
Intervening act and
comparative negligence are rules that are well-recognized in Wisconsin, as is the maxim that Courts shouldn't decide issues that aren't necessary in the case. Having (correctly) determined that Brophy needed an expert witness to prove his case, the Court should have stopped there. But if they were determined to go on, they should have at least gone on in a way Wisconsin recognized, instead of carving out a (thankfully unpublished) exception to the rule of causation.