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Archive for the tag “brian”

Strawman Arguments: Jocks vs. Nerds

My friend and co-worker Brian M. Lambert has founded an online sketch comedy project called Tactical Retreat which you can find here on Facebook and here on Youtube.

As Tactical Retreat releases new videos, I will post them here.  So far, I have found them rather funny and clever and they seem to get better with each release.

Here are the links to Tactical Retreat‘s previously released sketches:

 

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Tactical Retreat: Carpe Diem

My friend and co-worker Brian M. Lambert has founded an online sketch comedy project called Tactical Retreat which you can find here on Facebook and here on Youtube.

As Tactical Retreat releases new videos, I will post them here.  So far, I have found them rather funny and clever and they seem to get better with each release.

Here are the links to Tactical Retreat‘s previously released sketches:

 

Tactical Retreat: Strawman Argument: Best Movie Of All Time!

My friend and co-worker Brian M. Lambert has founded an online sketch comedy project called Tactical Retreat which you can find here on Facebook and here on Youtube.

As Tactical Retreat releases new videos, I will post them here.  So far, I have found them rather funny and clever and they seem to get better with each release.

Here are the links to Tactical Retreat‘s previously released sketches:

Tactical Retreat‘s latest sketch is entitled “Strawman Arguments: Best Movie of All Time” can be viewed below.

 

Tactical Retreat: Strawman Argument: Cats vs. Dogs

My friend and co-worker Brian M. Lambert has founded an online sketch comedy project called Tactical Retreat which you can find here on Facebook and here on Youtube.

As Tactical Retreat releases new videos, I will post them here.  So far, I have found them rather funny and clever and they seem to get better with each release.

Here are the links to Tactical Retreat‘s previously released sketches:

Tactical Retreat‘s latest sketch is entitled “Strawman Arguments: Cats vs. Dogs” can be viewed below.

 

A New Milestone! We’ve exceeded 50,000 views!

Thanks to all of my readers for helping this blog reach the mark of 50,000 views!  As of this post, this blog has received over 50,000 views!  I am humbled by the dedication of my readership.  Thanks so much for all of your loyalty to this blog, it is very much appreciated, and I hope to continue providing material worthy of your interest and readership!

WordPress (the platform for this blog) sorts posts into “categories.”  These categories can be created by the blogger, and, because I have OCPD tendencies, I have ensured the categories are many, descriptive, and comprehensive.  This is somewhat unusual, but in light of the new milestone I have decided to list all of my blog categories below for you to peruse.  Please take a few minutes to browse through them as I am sure you can find something worth checking out!

Thanks again to all of my readers and enjoy!

Major collections:

Individual categories:

Tactical Retreat: The Bequest

My friend and co-worker Brian M. Lambert has founded an online sketch comedy project called Tactical Retreat which you can find here on Facebook and here on Youtube.

As Tactical Retreat releases new videos, I will post them here.  So far, I have found them rather funny and clever and they seem to get better with each release.

Here are the links to Tactical Retreat‘s previously released sketches:

Tactical Retreat‘s latest sketch is entitled “The Bequest” can be viewed below.

Tactical Retreat: Frequent Flyer

My friend and co-worker Brian M. Lambert has founded an online sketch comedy project called Tactical Retreat which you can find here on Facebook and here on Youtube.

As Tactical Retreat releases new videos, I will post them here.  So far, I have found them rather funny and clever and they seem to get better with each release.

Here are the links to Tactical Retreat‘s previously released sketches:

Tactical Retreat‘s latest sketch is entitled “Frequent Flyer” can be viewed below.

Tactical Retreat: Guilty Pleasures

My friend and co-worker Brian M. Lambert has founded an online sketch comedy project called Tactical Retreat which you can find here on Facebook and here on Youtube.

As Tactical Retreat releases new videos, I will post them here.  So far, I have found them rather funny and clever and they seem to get better with each release.

Here are the links to Tactical Retreat‘s previously released sketches:

Tactical Retreat‘s latest sketch is entitled “Guilty Pleasures” can be viewed below.

The Gist of a Legal Malpractice Action

There are times when a disgruntled client believes his case was mishandled by his attorney to such an extent that he needs to bring suit against the attorney to make him whole. When bringing such a suit, a client can bring an action against his attorney sounding in tort for legal malpractice and/or an action sounding in breach of contract.

A malpractice claim addresses whether an attorney performed his duties according to the accepted standards of practice and is subject to a two year statute of limitations. A breach of contract claim addresses whether the attorney fulfilled his duties according to the contract that an attorney has with his client and is subject to a four year statute of limitations. According to the so-called “gist-of-the-action” rule, a litigant may not bring a tort claim (e.g.: legal malpractice) against someone if the legal duty that is claimed to have been breached by the opposing party is created by the terms of a contract.

It is not uncommon for both legal malpractice and breach of contract claims to be raised simultaneously by disgruntled clients against their attorneys, and the recent matter of New York Central Mutual Insurance Company and St. Paul Mercury Insurance Company v. Margolis Edelstein and Michael T. Savitsky, United States Court of Appeals for the Third Circuit, Case No. 15-1541 helps provide guidance regarding which is the more appropriate claim.

The New York Central matter centered on an attorney’s representation of an automobile insurance company with regard to the coverage it elected to provide (or lack thereof) for an automobile accident. At the conclusion of the case, the insurance company believed it received poor, indeed substandard, legal advice from its attorney which, as a result, led to its suing its attorney for breach of contract. The defendant attorney filed a motion to dismiss (which was granted, leading the insurance company to appeal to the Third Circuit) based on the “gist-of-the-action” rule. The successful argument proffered by the attorney was that, regardless of the labeling provided by the insurance company, its claim was actually a malpractice claim. The impact of a breach of contract claim being construed as a malpractice claim is that it shortens the applicable statute of limitations from four years (for contracts) to two years (for torts), which would lead to the dismissal of the insurance company’s claims as they were filed more than two years after the incident giving rise to its case against its attorney.

The Court indicated that a claim for breach of contract must arise from the duties created by a contract and not duties created through a “broader social duty.” The duty at issue under a contract claim must be one which a party would not otherwise have been obliged to do but for the terms of the contract.

According to the Court, the obligation for an attorney to perform his duties competently is one which looks to “broader social duties” and not simply the specific terms of a contract. According to the contract at issue, the attorney in this case was tasked with researching, drafting, and communicating a legal opinion to the insurance company regarding exposure to civil liability flowing from a specific automobile accident. To that end, the Court observed that the attorney did research, draft, and communicate the aforesaid legal opinion to the insurance company. Consequently, the attorney did not breach the contract. The insurance company’s claim is, more-or-less, that the attorney did a poor job in researching, drafting, and communicating the legal opinion, which is distinct from claiming the attorney did not perform the tasks he was contracted to do. In other words, as the Court pointed out, the insurance company’s claim “arises from [the attorney’s] negligent performance of his contractual duty obligations and, therefore, sounds in tort.”

Due to the above, the Court construed the breach of contract claim against the attorney as a malpractice claim, and, therefore, applied the two year statute of limitations for a malpractice claim to the insurance company’s claims, which resulted in the dismissal of those claims due to being time barred.

The decision above is beginning to be adopted generally as it has already been applied in the matter of Rinker v. Amori, Case No.: 3:15-1293, 2016 US Dist. Lexis 36712 at 19-20 (M.D. Pa. Mar. 22, 2016) and is consistent with the Pennsylvania Supreme Court case Bruno v. Erie Insurance, 106 A.3d 48 (Pa. 2014).

So, practitioners should be aware and vigilant to ensure they are compliant with the “gist-of-the-action” rule, and remember that, regardless of how a case is labeled, a court will look to the substance of the claims made to determine whether it sounds in contract or in tort.

Originally published on September 26, 2016 in Upon Further Review and can be seen here.

A New Milestone! We’ve exceeded 40,000 views!

Thanks to all of my readers for helping this blog reach the mark of 40,000 views!  As of this post, this blog has received over 40,000 views!  I am humbled by the dedication of my readership.  Thanks so much for all of your loyalty to this blog, it is very much appreciated, and I hope to continue providing material worthy of your interest and readership!

WordPress (the platform for this blog) sorts posts into “categories.”  These categories can be created by the blogger, and, because I have OCPD tendencies, I have ensured the categories are many, descriptive, and comprehensive.  This is somewhat unusual, but in light of the new milestone I have decided to list all of my blog categories below for you to peruse.  Please take a few minutes to browse through them as I am sure you can find something worth checking out!

Thanks again to all of my readers and enjoy!

Major collections:

Individual categories:

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