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Is it malpractice to abandon a losing argument when doggedness could lead to a juicy settlement? The answer is no, a New Jersey state appeals court said Tuesday in a victory for a Hackensack, N.J., plaintiffs’ lawyer and his firm. “Plainly, it would be bad public policy if a malpractice claim could be predicated on an anticipated legal error,” the panel said in Belle v. Bottinelli, A-786-00T2. Chemical distributor Anthony Van Belle, the plaintiff, was badly hurt in an explosion at his home in Amsterdam but his product liability suit against chemical companies was not caused by a federal court in Newark, N.J., in 1994. At the request of the defense at that trial, U.S. District Judge Dickinson Debevoise tried the case under Netherlands law. Then Van Belle sued his lawyers, saying the decision was wrong and that the verdict would have been different if lead counsel Terry Bottinelli, of Herten, Burstein, Sheridan, Cevasco, Bottinelli & Litt in Hackensack, had argued more forcefully for a trial under New Jersey law. Van Belle argued that even if Debevoise was right, a more vigorous pursuit of the choice-of-law argument would have made the defendants more willing to settle, perhaps for as much as $2.5 million. Bergen County, N.J., Superior Court Judge Charles Walsh rejected both arguments last year, and Appellate Division Judges Erminie Conley and Ariel Rodriguez agreed with him in last week’s per curiam opinion. First, they declined to disturb Walsh’s ruling that Netherlands law, not New Jersey’s, did indeed apply to the underlying case. At the time of the federal trial, New Jersey choice-of-law jurisprudence leaned toward the law of the jurisdiction in which the accident occurred. Second, because Debevoise made the right decision, any concession on that issue by Bottinelli couldn’t have been the proximate cause of any damages. And how that might have affected settlement talks can only be surmised, the court suggested. “To permit a plaintiff to predicate a legal malpractice case on a legal ruling which was erroneous would replace reason with conjecture,” the appellate panel said, quoting Walsh’s August 2000 decision. The lawyer who argued for Van Belle in the Appellate Division, Stephanie Mitterhoff, an associate in the Scotch Plains, N.J., firm of Jon Bramnick, says the choice-of-law question was the crucial one. She says she remains convinced that New Jersey law should have applied to the underlying case, but that an appeal to the state supreme court review is unlikely. Mitterhoff, who at the time of the argument was an associate in Springfield, N.J.’s Javerbaum, Wurgaft, Hicks & Zarin, says the six-page opinion — mostly blocks of quotes from the judge below — suggests that the appeals judges didn’t reanalyze the choice-of-law issue. “That was disappointing,” she says. “Because Judge Walsh did a conscientious job, they may have felt they didn’t need to do an independent analysis.” Bottinelli, represented by Christopher Carey, a partner in Morristown, N.J.’s Graham, Curtin & Sheridan, says, “I’m gratified that the firm was vindicated.” He says the firm didn’t fight for application of New Jersey law because its own analysis showed Netherlands law governed. To pursue the argument would have been frivolous, he says. Just as important, the choice of law had no influence on the verdict, he says. The case has had twists and turns that Bottinelli would like to forget. Van Belle was arrested and put on probation in 1995 after being accused of threatening a public official. He had written intemperate notes to Debevoise after the verdict. Bottinelli says he also was the target of threats that required security precautions. “The FBI told us not to open any packages,” he says.

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