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Slim Fee, Harsh Words for Attorney's Handling of Record Dram Shop Case
Judge criticizes attorney's work, says she engaged in subterfuge to remain on case after girl's mother sought to fire her
New Jersey Law Journal
April 28, 2008
High-profile lawyer Rosemarie Arnold was awarded a scant $227,000 in hourly fees on Tuesday for 4 1/2 years representing Antonia Verni, the girl whose paralysis caused by a crash with a drunken New York Giants fan focused national attention on binge drinking at sports events.
The $105 million verdict against stadium vendor Aramark Corp. in 2005 set a dram shop record, and Arnold, who was fired from the case in 2003, had asked for half the contingency fees.
An appeals court set the verdict aside. Even so, the victim recovered $1.8 million in settlements with other defendants. And with successor counsel, she ultimately won a confidential pact with Aramark last year before a scheduled retrial.
That recovery was "substantial," but Arnold's contribution was insignificant, Bergen County Superior Court Judge Robert Wilson said in an opinion that criticized Arnold's work.
She deserved only her firm's hourly blended rate of $275 for 827 hours of work she could document, the judge said, noting that she didn't keep billing records for the first three years of the case and calling dubious the data she presented in an attempted reconstruction.
Besides her tepid effort, Arnold engaged in subterfuge in a futile effort to remain in the case in 2003 when Verni's mother sought to fire her, Wilson said.
Because the settlement with Aramark is confidential, the aggregate value of the various settlements and fees are not public and Wilson did not refer to totals in his opinion.
"What I can say is that $227,000 is a miniscule fraction of the fees in the case," says David Mazie of Mazie, Slater, Katz & Freeman in Roseland, N.J. Mazie and colleagues spent 6,000 hours on the case after taking it over in 2003 and obtained most of the settlements. He argued that Arnold deserved nothing.
Arnold's lawyer, Joseph Tacopina of Tacopina & Seigel in New York, counters that the opinion is full of factual errors and that he has filed a notice of appeal. He calls the $227,000 "an outrageous amount and a judicial slap in the face."
"Half of the entire legal fee would be a fairer amount," he says.
Arnold, a certified civil trial attorney who heads a 13-lawyer personal injury firm in Fort Lee appears often on television as a commentator and handles criminal cases, too. Among her clients is Joran Van Der Sloot, who has been questioned about the 2005 disappearance of Natelee Holloway in Aruba.
Verni's father Ronald had once seen Arnold about representing him in a case arising from a barroom brawl.
It never went beyond a single consultation, but Arnold testified that she recalled the Verni name when she read about the horrific Oct. 24, 1999, crash in which the intoxicated fan, Daniel Lanzaro, crashed into the Verni's car, paralyzing Antonia from the neck down.
Arnold dispatched her sister and law firm associate Elizabeth Arnold to Antonia's parents, who signed standard contingency agreements.
Under the pacts, the Vernis were responsible for paying hourly billings of $275, regardless of outcome, if they chose to discontinue the firm's services.
In denying Arnold a piece of the contingency pie, Wilson said she was stuck with that clause in the agreements. "She had no experience with a public nuisance case and no plaintiff's dram shop cases before the instant matter," he said of Arnold in his opinion. "She claimed a number of large settlements on other types of plaintiff cause of actions, but no jury verdicts of more than $5,000 for any case she has personally tried since 2003."
Arnold did arrange a $115,000 settlement from Ronald Verni's auto insurance after the accident. And she pointed out in pleadings that the suit she filed on Verni's behalf included defendants and causes of action that ultimately resulted in the settlements Mazie obtained.
The named defendants included Lanzaro, the Giants, the National Football League, automobile companies, insurers and the owner of a bar where Lanzaro drank after leaving the stadium.
But the judge said she did not produce documents to support her contention that she conducted extensive legal and Internet research on other causes of action.
"The court heard a great deal about the reputation that Ms. Arnold has created for herself," Wilson said. "While she is an experienced civil litigator, she did not expend much actual efforts performing services."
He said the firm determined that the best viable cause of action was a public nuisance suit against the Giants and the NFL for allowing pot smoking and drinking on a weekly basis. But no expert evidence to support the theory was developed, the judge said.
He also said Arnold concluded that Aramark could not be shown to have served Lanzaro while he was intoxicated, so a dram shop claim wasn't viable.
As it turned out, though an appeals court threw out Mazie's verdict against Aramark, his pursuit of the claim paid off eventually, the judge found.
Mazie's firm spent $582,290 in costs for experts, consultant, focus groups and trial presentations on this claim; pursued the case on remand; and prepared for a new trial, "all of which resulted in the substantial settlement and fees generated from the remaining Aramark cause of action," the judge said.
"Therefore the court finds no basis upon which to award the Law Office of Rosemarie Arnold legal fees from the Aramark settlement which she played no part in securing and from which she determined was not viable in pursuing," the judge said.
He also rejected Arnold's version of how she was taken off the case. In 2003, she reported to the court that she had just learned that the $115,000 payment from the Vernis' car insurance, which was supposed to be used for Antonia's care, had been diverted to an investment in a condominium. She testified that when she asked that Antonia's mother, Fazila Verni, be removed as guardian ad litem, the mother retaliated by firing her.
As it turned out, Arnold had known for months that the money had been used for a condominium and raised the issue only when it became clear Fazila Verni wasn't happy with the slow pace of the case, the judge found.
"It is clear that Ms. Arnold's actions in bringing the condominium purchase to the court's attention was a subterfuge to maintain her own representation in this tragic personal injury case," Wilson said.
After the dispute over Fazila Verni's actions, the court appointed Albert Burstein of Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz in Hackensack as guardian ad litem. In that role, he hired Mazie to replace Arnold.
Burstein's appointment would not have been necessary but for Arnold's "subterfuge," Mazie said Tuesday. He said Burstein's firm's fee is $218,000 and that he has filed a motion to make Arnold pay it out of the $227,000 awarded her.
Tacopina, meanwhile, says he is appealing on Arnold's behalf. He says Wilson's opinion includes errors about Arnold's record. The opinion says, for example, that Arnold never had a dram shop case before the Verni case and that she hadn't had a jury verdict of more than $5,000 since 2003. In fact, he says, she had handled several dram cases and had a verdict of $1.5 million a few years ago.
Tacopina says Arnold should have been given credit for bringing Aramark into the case and also defendants such as the NFL and the Giants, who paid $783,000 in settlements made public. "If she didn't bring in the football defendants, who were clearly culpable parties because they settled, it would have been malpractice," he says.
Tacopina filed a motion asking Wilson to recuse on grounds of bias but Wilson issued the fee opinion before deciding the motion.
