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Princeton Insurance Co. v. Vergano10/11/2005
ch the jury, despite the defendant's own skepticism, will find the plaintiff's claims of impairment credible. In a circumstance when that assessment leads a defendant to settle, and the defendant later uncovers indisputable evidence the plaintiff perjured himself about the extent of his impairment, is the defendant without recourse to rescind the settlement? That question (in grayer variations) is not yet before me in ripe form.
Therefore, I assume for purposes of deciding this motion that the Malpractice Defendants have a viable fraud claim because there is a colorable basis to argue that the conduct Vergano engages in on the Drnec Video in particular demonstrates that some or all of her prior claims of pain and impairment were entirely false or, at the very least, purposely exaggerated. Working from that premise, one could, as the Malpractice Defendants would have me do, draw a very simple conclusion about the applicability of the crime-fraud exception.
That simple conclusion would flow from the following syllogism: Vergano sought to recover excessive damages by falsifying entirely or exaggerating the pain and impairment she suffered as a result of Robinson's malpractice. She sought the services of Fullam to accomplish that purpose. Absent Fullam's prosecution of the Malpractice Case based on Vergano's claims of pain and suffering, Vergano would not have been in a position to obtain a verdict against or a settlement with the Malpractice Defendants. Therefore, because Vergano sought to use Fullam's services to advance claims that were entirely false or exaggerated, the crime-fraud exception applies.
The problem with that simplistic reasoning is that it vitiates the attorney-client privilege when the policy justification for the crime-fraud exception does not pertain. That justification is based on the premise that when a client seeks out an attorney for the purpose of obtaining advice that will aid the client in carrying out a crime or a fraudulent scheme, the client has abused the attorney-client relationship and stripped that relationship of its confidential status. As Justice Cardozo put it, "The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law." This rationale, however, I dare to venture, is itself bottomed on the assumption that the client has actively sought out legal advice from the lawyer, in order for the client to plan how he will carry out a crime or fraud.
In this case, the only thing that Vergano arguably did to abuse the privilege is to go to an attorney, tell the attorney the details of her claims of pain and impairment, and ask the attorney to present those claims. In this respect, it is important to remember that there is no doubt that Vergano was victimized by malpractice, and that the malpractice caused her pain and impairment to some material extent. Vergano, therefore, brought to Fullam a malpractice claim that was, at bottom, bona fide. Critically, the Malpractice Defendants do not argue that Vergano provided Fullam an initial, more modest story about pain and impairment, received advice from Fullam about what type of testimony would be most useful in obtaining a high damage award, and then modified her story in order to make a more compelling, but false, case. In fact, the Malpractice Defendants seek to show that what Vergano told Fullam about her claims of pain and impairment is substantively the same as what was incorporated in the complaint, interrogatories, and pre-trial stipulation filed on Vergano's behalf, and in Vergano's deposition testimony, in the Malpractice Case.
In other words, if the crime-fraud
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