How Do You Deal with Malicious Prosecution?
From a trial lawyer’s standpoint, a practice in professional liability is always intellectually challenging. Speaking with a Partner at Robie & Matthai, Kyle Kveton says: “I rarely, if ever, try the same type of case twice. Representing lawyers in vastly different fields presents an unparalleled opportunity to learn from my clients and to acquire a level of insight into areas of practice I otherwise would not engage in. Most lawyers never have this type of opportunity.”
With over 30 years’ experience, Kyle speaks on his expertise and reveals how businesses can avoid unnecessary litigation and considerations that must be made when considering a malicious prosecution action.
Can you offer three “nuggets” of advice for businesses (and lawyers) to consider in order to avoid unnecessary litigation?
(1) One thing I have found in the course of litigating transactional malpractice cases over the years is that while many transactional lawyers are skilled in document drafting, they have never litigated a breach of contract case, or consulted with someone who has litigated a breach of contract case. In my experience, litigation can often be avoided by having transaction documents drafted by someone with a joint transaction/litigation background, or by ensuring that transaction counsel consults with litigation counsel during the drafting process. Litigators can be valuable in catching hidden land mines in deal documents.
(2) Keep in mind that even the best intended of deals can go awry and even the best of business partners can find themselves at odds. Deal documents (and retainer agreements) should be written with the recognition that disputes may occur, and should, to the extent possible, include provisions controlling what happens if the parties to the deal “break up.” In other words, consider whether your transaction documents need to have some features of a classic prenuptial agreement.
(3) If and when disputes arise, start working with your business partner (or your client) toward resolution, not toward “posturing” for litigation. I am always amazed at how many seemingly insurmountable differences can be overcome when both sides recognise that informal resolution is infinitely cheaper than litigation. Consider including a provision in transaction documents requiring the parties to meaningfully engage in informal dispute resolution (even mediation) as a prerequisite to filing suit.
Can you explain alternative considerations you and your clients must make when regarding malicious prosecution actions?
I rarely, if ever, recommend that clients I have successfully defended sue for malicious prosecution. There are several reasons for this: first, in many states, anti-SLAPP statutes exist, which allow a malicious prosecution defendant to seek early dismissal of the case. Many statutes provide that if the defendant is successful in obtaining early dismissal, an award of attorney’s fees against the malicious prosecution plaintiff automatically follows. Second, under many anti-SLAPP statutes, an order denying an anti-SLAPP motion is immediately appealable, which means that even if the malicious prosecution plaintiff defeats the anti-SLAPP motion, the litigation can get bogged down for two or more years while sitting in the appellate courts. Third, while revenge is sweet, litigation carries an opportunity cost. Every hour a business (or a lawyer) is engaged in litigation is an hour the business (or lawyer) is not doing what it should be doing in the first place.
As an expert with years in professional liability, what are the most common cases you were instructed on, and how complex can liability investigations become in these cases?
Over the years, my firm and I have been fortunate enough to handle an extraordinary variety of malpractice cases. We have defended claims involving family law, tax, commercial transactions, intellectual property, estate planning, bankruptcy and debtor-creditor relationships and criminal law, to name a few. Right now, we are involved in several “high stakes” malpractice lawsuits, where our lawyer/firm defendants represented their former clients for years before being sued. The liability investigations in cases like these can be extremely complex. They involve a long history of representation, often involving many different types of advice, and the documentary evidence is likely to be extensive. One of the hardest things to do in cases like these is to distill years of representation and mountains of facts into a coherent narrative for a jury to understand when the case goes to trial. In fact, the more complex the case, the more necessary it is for trial counsel to develop concise and coherent themes that allow a jury or judge to easily understand what can be seemingly overwhelming evidence at trial. Clarity persuades.
How often do you see liability cases resolved swiftly, or can they be very complex?
There is no easy answer to this question. Every case is different. I believe my clients should be defended zealously, particularly since legal malpractice claims strike at the very heart of a lawyer’s biggest asset: his or her reputation. Nonetheless, I believe that the best service I can provide to a client at times is to give him or her the bad news that his or her case is one of liability, and that it should be resolved sooner rather than later. Our firm believes in providing an early and careful analysis of a professional liability case so that we can be in a position at the outset to give a client a fair understanding of what lies ahead. And, early evaluation allows us to be focused and efficient as we proceed through discovery and trial.
What common challenges do professional liability lawyers face within this field and how do you navigate them?
One of the biggest challenges I face on a regular basis is helping my clients, and sometimes judges, overcome the perception that “everyone hates lawyers.” I cannot count the number of times that judges or mediators have told me that juries do not like lawyers. It has been my experience in decades of trying malpractice cases that jurors respect hard working lawyers who try to do their best for a client, even if the representation wasn’t “perfect.” Jurors can accept that lawyers are human, and they understand that that having a license to practice law does not guarantee perfect results. Where a lawyer has acted reasonably, ethically, and diligently, juries are readily capable of returning verdicts in favour of lawyers. My job is to help them get there.
In what past cases would you say your liability expertise has been a game changer for your client, and to what do you attribute the success?
Over the years, our firm has developed a reputation for jumping into cases at the last minute. Often, a fresh look can add a new perspective on strategies and tactics. In a case a few years ago, I was asked to associate in on the eve of trial. The case involved claims of negligence against an insurance broker for failing to obtain appropriate coverage for an international client. I was able to help devise a strategy which encouraged the plaintiff to file an amended complaint. As I anticipated, the newly-amended complaint raised a statute of limitations issue that had not been readily apparent in the earlier pleading. We promptly filed a demurrer asserting that the complaint was time-barred, and the trial court agreed. The trial court’s dismissal was eventually affirmed on appeal. It was gratifying to add value to the existing defence.
Kyle Kveton
Partner
kkveton@romalaw.com
(213) 706-8000
I am a partner in Robie & Matthai, A Professional Corporation. The firm just celebrated its 30th Anniversary, and I have been practicing with my partner, Edith R. Matthai, for over 30 years. The firm is a trial and appellate firm. I do both trial and appellate work (and have acted as outside general counsel for some privately held companies). I hold the rank of Associate with the American Board of Trial Advocates and I am a Senior Fellow of the Litigation Counsel of America.
I am a member of the Los Angeles County Bar Association, the American Bar Association (Business Law Section), the Association of Business Trial Lawyers, and the Association of Southern California Defense Counsel. I have been a faculty member for the National Institute for Trial Advocacy continuously since 2005, and have taught both deposition and trial skills programs for that organization.
I have tried over 30 matters to decision, including over 20 jury trials, and have been counsel of record on approximately 50 published and unpublished opinions issued by the California Court of Appeal and the California Supreme Court. I am admitted to practice in the courts of the State of California, all federal District Courts within California and the Ninth Circuit Court of Appeals.
