Admissibility of Lawyer’s Prior Statement About Value of Case

By David M. Saperstein

“It ain’t bragging if you can do it.”
– Dizzy Dean

A recent decision from the Michigan Court of Appeals on the admissibility in a legal malpractice matter of a lawyer’s earlier, alleged statement at a press conference about the $50 million value of the underlying case recalls an earlier instance of braggadocio.

George Washington and Walter Johnson

In February 1936, thousands of people gathered in Fredericksburg, Virginia, on the banks of the Rappahannock River near George Washington’s boyhood home, to watch 48-year-old Walter Johnson attempt to throw a silver dollar across the river.  Legend had it that the first President of the United States had achieved the feat as a young boy.  “Maybe I can’t throw that far,” Johnson said, “but there’s one thing certain, if George Washington did it, I can.”

New York Representative Sol Bloom thought it was preposterous and offered 20-1 odds that Johnson would not succeed.  When bettors sought to take Bloom up on the offer, including a $5,000 certified check from the President of Fredericksburg Chamber of Commerce, Bloom backpedaled quickly, clarifying that he meant that nobody could throw it across the width of the river when Washington was a youth, not the current river width. 

Earlier that month, Walter Johnson had been elected to the inaugural, 5-man class of the Baseball Hall of Fame.  Another member of that five-person class, Ty Cobb, recalled the first time that his team faced a young Johnson in 1907:

On the big day, with the Nationals’ broadcaster providing the play-by-play for a national radio audience, Johnson took a couple practice throws, coming about ten feet short.  Edward T. Folliard, staff correspondent for The Washington Post, described the happy news of the silver dollar crossing the river, “He threw it over with the same easy grace he once used in fanning Ty Cobb, Tris Speaker and ‘Ping’ Bodie, and so doing he brought to Fredericksburg something of that joy that was denied to Mudville when the mighty Casey struck out.” The commemorative coin struck a gasoline tank on the other side of the river before being retrieved by a stonemason named Peter Yon.

Long v. [Attorney Name Withheld], 2023 WL 8663653 (Mich. App. 2023) (unpublished)

It’s not only politicians and athletes who like to brag.  In Long v [Attorney Name Withheld], the Court considered the legal issue of whether a former client could introduce his former attorney’s statement at a press conference about the value of the case.

In 2011, 18-year-old Decedent Michael Knudsen jumped off a dock at a marina near Traverse City, Michigan.  Knudsen surfaced and screamed that he could not swim.  A second person jumped in to help Knudsen, but screamed, “There’s current in the water.”  Unfortunately, the current was not an undertow, but electricity from corroded, broken, and over-heated equipment, ground materials, and an ungrounded conductor that had worn through its insulation, making contact with the junction box.  The Attorney for the Personal Representative of Knudsen’s Estate held a press conference in which he allegedly stated that the upcoming lawsuit was worth $50 million.

In the underlying lawsuit, the municipal entities were granted summary disposition on the basis of governmental immunity.  That decision was affirmed on appeal.  Although a claim remained against the individual harbormaster, that claim was ultimately dismissed as well. 

The Estate then brought a claim for legal malpractice against the attorneys in the underlying case, alleging that the trial attorneys breached the standard of care by failing to plead tort claims under federal admiralty law, as such claims would not enjoy the protection of state governmental immunity.  The defendants moved in limine to preclude plaintiffs from referencing the press conference (and preceding press release).  That motion was denied, with the trial court ruling that the objections went to the weight, not the admissibility of the evidence.

In an unpublished opinion, the Michigan Court of Appeals affirmed.  The Court held that the threshold for relevance is minimal, and that the credibility of witnesses is a material issue.  The Court noted that the press release’s representation of an investigation was pertinent due to the issue of the adequacy of the investigation and failure to allege a claim under federal admiralty law. As to the alleged $50 million value of the claim, the Court noted that the Estate had to prove damages, and that the press conference statement was relevant to the amount of damages, as well as to the issue of the lawyer’s credibility.  The Court rejected the argument that the attorney was speaking exclusively as an agent of the Estate, noting that the press release’s mention of “our investigation” referred to the investigation of the attorney and his firm, not an investigation by the Estate.  The Court mentioned that although the attorney would presumably testify as to why he made the statements and downplay their significance, it was up to the jury to weigh those arguments.

Significance

This case is not published, so it is not binding precedent.  In addition, it cuts against the notion that a lawyer should not be punished in a malpractice suit for his advocacy in the underlying matter.  See, e.g. Charles Reinhart Co. v. Winiemko, 444 Mich. 579, 587, 513 N.W.2d 773, 776 (1994). The Court’s focus in Long on the phrase “our investigation” suggests that it would have reached a different result if the statement had not implied an opinion by the lawyer, as opposed to a request for the factfinder to reach a verdict in that amount.

For other cases dealing with similar issues, see Merritt v. Goldenberg, 362 Ill. App. 3d 902, 910–11, 841 N.E.2d 1003, 1011 (2005) (no basis for expert opinion on value of case); Baptiste v. Rohn, 694 F. App’x 880, 884 (3d Cir. 2017) (settlement demand letter had little probative value and was substantially outweighed by the potential prejudice); Alpha Capital Management, Inc. v Rentenbach, 287 Mich App 589; 792 NW2d 344 (2010) (settlement discussions from the underlying action allowed because they were a partial focus of the malpractice claims); Schenkel v. Monheit, 405 A.2d 493, 495 (Pa. Super. 1979) (settlement negotiations cannot be alleged as the actual harm necessary to sustain a legal malpractice action).