[Ed: One of the things we constantly harp on in BigLaw is paying attention to detail. Junior associates almost never get it until they screw something up because they assumed it was right; senior associates and partners, based on their own personal experience, try to prevent subsequent screwups. We're going to try something new: We'll be linking together thematically articles in which people failed to pay attention and it cost themselves or their clients. We're engaging in some revisionist history and including the "Due Diligence Matters" piece about Madoff as the first in the series. We're also aware of Muphry's Law - so feel free to nitpick our own errors in the comments.]
McAfee has sued WilmerHale, claiming, among other things, that the firm defrauded the software vendor by overbilling for the defense of its now-convicted CFO, Prabhat Goyal. According to the National Law Journal:
[McAfee] asserted that the $6.8 million of the $12 million it cost to defend Goyal included unjustifiable fees and expenses for numerous WilmerHale partners and associates, in addition to charges for luxury hotel rooms, limousines and bar tabs.
Most of McAfee’s related claims were dismissed in October. This time, though, WilmerHale had filed a petition with the Texas Court of Appeals for a writ of mandamus, which would have required the trial court to dismiss the fraud claims as well. That petition was denied on a number of procedural grounds, as a result of which, the fraud claims will proceed.
While the judges went to the trouble of addressing the substance of the motions, they were none too happy about it.
The firm’s screwup after the jump.
As the judges wrote, they felt the whole opinion was unnecessary (at fn. 1, internal citations omitted):
The author of this opinion would also deny relief on the ground that the certification at the end of relator’s petition for writ of mandamus does not substantially comply with the requirements of Texas Rule of Appellate Procedure 52.3(j), as amended effective September 1, 2008. The rule requires the person filing a petition for writ of mandamus to certify that he or she has read the petition and concluded that “every factual statement in the petition is supported by competent evidence included in the appendix or record.” The certificate at the end of relator’s petition contains only an averment that “the Petition truly and correctly recites the factual allegations set forth in the pleadings and the evidence in the record.” But in light of the foregoing analysis, it is unnecessary to address this issue.
Admittedly, the rule was changed just a few months ago, but this is why you have to check the original source every single time.
What do you think happened here? We’re willing to bet that someone either duplicated a previous Texas filing without doing a rule check or, even worse, including a generic certification without tailoring it to Texas at all.
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wow – there is never ever a good reason not to be detail oriented. thanks for reminding us.
wow – there is never ever a good reason not to be detail oriented. thanks for reminding us.