Cer aw kw 10 oT 12 13 4 15, 16 7 18 19 20 21 22 23 24 25 26 FILES eee The Honorable Steven Gonzalez Noted for Hearing: May 30, 2008, 10:00 am. 200 HAY 19° py WehS Oral Argument Requested SUPERIOR COURT OF WASHINGTON IN AND FOR KING COUNTY CHRIS CORNELL, 3 Plaintiff, 3 No. 06-2-24639-0SEA v. ) JANET A. GEORGE’S OPPOSITION ) TOPLAINTIFF’S MOTION FOR VOLDAL WARTELLE & CO., P.S.,a ) PARTIAL SUMMARY JUDGMENT Washington Professional Service Corporation; ) | RE BREACH OF THE STANDARD LEE E. JOHNSON; JANET A. GEORGE; and) OF CARE JANET A. GEORGE INC. P.S., a Washington ) Professional Service Corporation, } Defendants. ) feapoennussnansFansessnnssasnesnasasanaanseasansato)} I. RELIEF REQUESTED Defendant Janet A. George (“George”) requests that the Court deny plaintiff Chris Comell’s (“Cornell”) motion for partial summary judgment that she was negligent as a matter of law in representing Cornell in his divorce from Susan Silver (“Silver”). In support of his motion, Comell offers no expert opinion that George fell below the standard of care. Instead, he relies solely on carefully selected portions of her deposition testimony to argue that the issue can be decided as a matter of law. When the entire record is considered, a jury could easily conclude that George met the standard of care in her representation of Comell. Accordingly, Cornell’s motion for partial summary judgment should be denied, GEORGE’S OPPOSITION TO PLAINTIFF'S MOTION FOR bedatasipredaslbameneracataed PARTIAL SUMMARY JUDGMENT RE BREACH OF THE 100 TOO STANDARD OF CARE - L seqnrtse Wasmnoro% 98108 ORIGINALCor ann rk wD 10 ul 12 13, 14 16 7 18 19 20 21 22 24 25 26 Il. FACTUAL BACKGROUND For purposes of summary judgment, the facts, and reasonable inferences therefrom, are taken in the light most favorable to George. With regard to Comell’s claim that George ‘was negligent as a matter of law, a jury would be entitled to believe the following evidence. A. Cornell Tells George He Wants to Split His Catalog of Songs with Silver to Avoid the ‘Time and Expense of a Valuati Cornell retained George in October of 2003 to obtain a divorce from his wife of thirteen years, Silver. Ex. 1, Dep. Comell at 9:18-10:8.' Comell is a rock musician who ‘wrote or co-wrote a number of songs during his marriage, By the time of her first meeting with Comell, George already had spoken with an accountant, who explained that valuing a song catalog such as Comell’s can be expensive and time consuming. Ex. 2, Dep. George at 40:10-15. However, when George suggested hiring the accountant to get started, Comell asked if a valuation was necessary if he simply split the catalog with Silver. Id, at 43:11-16, 45:3-16. George explained that a valuation could be avoided if he simply shared the entire catalog with Silver. Id. at 135:19-136:21, 140:13-20. However, if he wanted to do anything cise, a valuation would be necessary. Id. at 211:14-18. Comell then said it would be “fair” to share 50/50 with Silver because “she was there ftom the beginning.” Id. at 122:18-21. He also said he was very knowledgeable about intellectual property issues, but would need help with parenting issues associated with a three-year old daughter. Id, at 123:10-16, This initial meeting was the source of George’s understanding that Corel! wanted to be “fair” to Silver and to split with her all of his interests in his catalog of songs to avoid an expensive and time- consuming divorce. B. — Comell’s Efforts to Work out a Cooperative Divorce Are Not Productive, At first, Comel! hoped that Silver would be cooperative in finalizing a divorce based on his willingness to share everything 50/50. Ex. 1, Dep. Comell at 23:25-24:3. However, by ' All exhibits referenced herein are attached to the Declaration of Ralph B. Cromwell, Jr., in Support of Opposition to Motion for Partial Summary Re Standard of Care. GEORGE'S OPPOSITION TO PLAINTIFF'S MOTION FOR BYRNES & KELLER ur PARTIAL SUMMARY JUDGMENT RE BREACH OF THE cde mecpas Aner STANDARD OF CARE -2 Searrne, WastINoTox 98104 (200) 622.3000Caran er we ve 10 u 12 13 14 15 16 17 18 19 20 pa 23, 25 26 ‘November of 2003, Comell emailed George that Silver had repeatedly said that she wanted more than a 50/50 split of their property, Id. at 13:13-20; Ex. 3, Nov. 11, 2003, email. By carly 2004, Cornell told George that his discussions with Silver had not been productive, that she was not eager to have a divorce, and that she wanted more than 50 percent of the property in any settlement. Ex. 1, Dep. Cornell at 28;14-25; Ex. 2, Dep. George at 97:6-16, 100:1-14. Accordingly, in an email dated January 11, 2004, George outlined the divorce process for Comell and explained that to get a parenting evaluator and a mediator for property issues would take at least three or four months. Ex. 1, Dep. Cornell at 26:12-27; Ex. 4, Jan. 11, 2004, email. C. Cornell Instructs George to Offer Silver a wus Settlement in Return for a Quick Divorce and Promptly Runs into Obstacles. On January 20, 2004, Cornell called George and told her he wanted to quickly finalize his divorce from Silver. Ex. 2, Dep. George at 205:14-22, 208:12-18; Ex. 1, Dep. Comell at 30:12-17. To induce Silver to agree to a quick divorce, Comell told George to offer Silver houses in West Seattle and Ojai and a 50/50 split of “everything else.” Ex. 1, Dep. Comell at 3111-17, 38:4-13; Ex. 2, Dep. George at 208:19-23; Ex. 5, Jan, 20, 2004, George notes, Comell viewed this as a “generous” offer. Ex. 1, Dep. Comell at 36:5-22. In return, Comell said he wanted Silver to give him a divorce within a month or so. Id. Cornell then settled on ‘March 1, 2004, as the “deadline” on which his offer to give Silver a “generous” property settlement would expire, Id, at 38. A divorce by March 1, 2004, imposed a “tight deadline” requiring a “scramble.” Ex. 29, Dep. J. Mass at 108:1-14, George promptly called Silver's attorney Tom Hamerlinck to convey the offer. Immediately, there were complications. On January 22, 2004, George emailed Comell that Hamerlinck had told her that Silver was “really blown away, fragile, not handling it well” and that he was unsure “if I can push her.” Ex. 6, Jan. 22,2004, email. In contrast, when George informed Comell that Silver had not agreed to promptly meet with a parenting mediator, he became very assertive about his March 1 “deadline”: GEORGE'S OPPOSITION TO PLAINTIFF'S MOTION FOR ‘Byrnes & KELLER ur PARTIAL SUMMARY JUDGMENT RE BREACH OF THE Apbveceseeusenin STANDARD OF CARE -3 Searrie, Wasnitevon 98104 "200 629.2000‘Tom [Silver's lawyer] needs to know that I am not bullshitting about my generous offer being reversed if this does not move now. Please tell him to set these meetings up ASAP. He may think that Tam bluffing and test a litle bit. This will tum out very bad for his, client. That I promise. Thanks. CC Ex. 7, Jan. 27, 2004, email; Ex, 1, Dep. Comell at 127:13-22. Thereafter, Comell repeatedly emphasized to George that March 1 was a “deadline” and that she was to pressure Silver to meet it by threatening to withdraw his “generous” settlement offer. Ex. 2, Dep. George at 207:3-13, 209:10-20; Ex. 29, Dep. J. Mass at 134- 135. For example, on February 17, 2004, George emailed Comell: “We/they are moving forward, but very not as [sic] fast as you would like.” Ex. 8, Feb. 17, 2004, email. In response, Comell asked for confirmation that Silver understood that March 1 was a “deadline” and “no joke,” and how much longer the actual divorce would take: Are you absolutely sure they know March 1* is the deadline for the extras I am offering? . . . [T]he date I have given her is no joke. ‘When everything is agreed upon and signed how long does it take for the divorce to be recognized by the court? Ids Ex. 1, Dep. Comell at 130:25-131:8. Thus, George suddenly found herself in a situation where Silver was too “fragile” to proceed, while Comell was adamant that a “deadline” several weeks away had to be met. D. — George Repeatedly Wars Comell That His Deadline Is Impractical and Entails Risks. By the third week of February, George was emailing Comell that she was concerned that his “deadline” was impractical and entailed risks. On February 17, 2004, George emailed: “[W]e may not be able to exactly meet the March 1 deadline. Would you consider a brief extension?” Ex, 9, Feb. 17, 2004, email; Ex, 1, Dep. Comell at 133:24-134:10, Corel id not respond. Ex. 10, Feb. 23, 2004, email at p. 2; Ex. 1, Dep, Comell at 157:9-13. Then, on February 18, 2004, George sent another email stating: “I do not see how we can complete ‘the parenting issues in that time-frame” and cautioned that it would be “a shame to rush”: GEORGE'S OPPOSITION TO PLAINTIFI’S MOTION FOR BYRNES & KELUER us PARTIAL SUMMARY JUDGMENT RE BREACH OF THE, Teese STANDARD OF CARE -4 Sart, WARIEINGTON 9810S ‘2051 622.2000Seow waaueunn 12 13 14 15 16 7 18 19 20 24 22 23 24 26 This parenting plan is very hard to alter in the future and it would be a shame to rush into one that is not flexible and helpful to you Just to be divorced by March 1, 2004. Ex. 11, Feb, 19, 2004, email. Because Comell was often in Paris and Los Angeles, George also noted the process “would be easier and complete{d] more quickly” if he would actually come to Seattle “to participate as needed.” Id, George ended her email by expressing concern that Cornell’s insistence on a March 1 deadline entailed a risk that issues would be missed and cautioning him that any property settlement would be “a done deal”: In this rush I am concemed that issues are not clear. Once signed, the property is a done deal and the parenting is difficuly (sic) to alter. Id. Several hours later, Cornell emailed George: It can only get worse for them. I don’t buy that March first is impossible. If they want it done it wiil be done. Ex. 12, Feb. 19, 2004; Ex. 1, Dep. Comell at 144:16-22. At this point, Comell’s March 1 deadline was less than two weeks away. Comell complained that Silver would not respond to his settlement offer. Ex. 13, Feb. 23, 2004, email (“I know no more about her position now than I did three months ago.”); Ex. 14, Feb. 23, 2004, email (“I expect his counter offer for parenting NOW! As well as the property settlement stance.”). Over the next several days, George tried to set up a mediation for Comell and Silver to identify and resolve issues. However, he was in Paris and she was difficult to reach, Ex. 10, Feb. 23, 2004 email; Ex. 15, Feb. 21, 2004, email. Mediators were difficult to schedule on several days’ notice and there were: a lot of issues (i.e., parenting, support, royalties, property etc.) to resolve in a short period of time, and ALL of the issues must be agreed on before you can be divorced, Ex. 13, Feb. 23, 2004, email. George was particularly concerned that parenting issues would be time consuming given Comell’s past and alleged current substance abuse, that he traveled regularly, that it was unclear where Silver would live after the divorce, and that Comell spent a significant amount GEORGE'S OPPOSITION TO PLAINTIFF'S MOTION FOR, Byres & KELLER ur PARTIAL SUMMARY JUDGMENT RE BREACH OF THE. Ship somesaee oe STANDARD OF CARE -5 ‘seamen, Wasmneoron 98108 ‘@001629.2000ee wane en 10 Wn 12 13 14 15 16 7 18 19 20 21 2 23 24 25 26 of time in Paris. Ex. 16, Feb, 24, 2004, email. George asked again if Cornell would come to Seattle to facilitate a resolution: | think it might make sense for you to come to Seattle. Everyone in the same Vicinity can hasten reaching an entire agreement Ex. 10, Feb. 23, 2004, email at p. 1. However, Cornell was resistant: Tell me now why Lam coming now. To what end. Ihave many responsibilities with business and don’t live in Seattle. Please fell me how the next few days will help finish this. If T am there, Id. George reiterated her concern that it was difficult to communicate by email. Id. (“I think the emails are passing over the Atlantic Ocean”); Ex. 17, Feb. 23, 2004, email (“I worry that you do not get the emails.”). By February 24, 2004, Comell was so frustrated he emailed George that “I fee! like this is a huge waiste (sic) off (sic) time” and that “maybe . .. I should consider a different counsel.” Ex. 13, Feb. 24, 2004, email. In response, George wrote a long email that summatized the difficulty of finalizing a complex divorce in such a short time and reiterating many of the concerns previously stated: * “[Plart of the problem is we are communicating by email”; “it would be much better if we could talk in person about some of these issues”; “i]t has concemed me that we do not have any way to get you these documents for your review.” . “T have been totally devoted to meeting your deadline.” * “Completing a dissolution is no easy task”; “complex dissolutions generally take 11-12 months to complete.” * “Istill do not understand the importance of your March Ist deadline” reference to Comell’s refusal to explain why he was in a hurry, © “Thave inquired about alittle flex time for the drop dead time, such [as] a week or $0, but you have not responded.” . “Your situation involves millions of dollars and the future of your child.” + [I}f this cannot be pulled together by March 1, there are other options, but knowing why this is so important to you would be helpful.” Ex. 10, Feb. 23, 2004, email; Ex. 1, Dep. George at 116:23-117:15. GEORGE'S OPPOSITION TO PLAINTIFF'S MOTION FOR ‘Bynnes & KELLER sr PARTIAL SUMMARY JUDGMENT RE BREACH OF THE 1000 eT STANDARD OF CARE -6 ‘Sucrrum Wanmreoror 08104Comer ane en 10 aT 12 13 14 16 7 18 19 20 21 22 23 25 26 ‘Then, suddenly, Silver agreed to mediate on March 1, 2004, using Rosselle Pekelis as amediator. Comell emailed: “I feel better about things...” Ex. 18, Feb. 24, 2004. As for George’s inquiry about why March 1 was so important, he would say only: “I need youto know that my aggressive stance in the long run will help all of us.” Id, He reiterated “I will not budge on my position.” Id. E, — Cornell’s Insistence That He Actually Be Divorced by His Deadline Means That Executed Documents Must Be Negotiated at the Mediation. Although Silver finelly agreed to a March 1 mediation, George still faced a very challenging situation in meeting Comell’s “deadline.” At many settlement mediations, the parties work out the key terms of an agreement and then refine and document the settlement in the days following the mediation. Ex. 19, Dep. Pekelis at 24-25. Here, however, by the terms of his offer to Silver, Cornell did not just want to reach a settlement by March 1, he actually wanted to be divorced. Id. Accordingly, at the March 1 mediation, it was necessary to not only reach agreement, but to actually draft and execute all of the documents necessary to enter a divorce. Id; Ex. 1, Dep. Comell at 51, 203, 208; Ex. 2, Dep, George at 200-204, This task was especially challenging here because Comell’s tight deadline meant there ‘was no real opportunity to conduet formal discovery or explore Silver’s position prior to the mediation. Ex. 2, Dep. George at 209; Ex. 29, Dep. J. Mass at 80, 107, 110, George drafted a property settlement agreement, a parenting plan, order of child support, findings of fact and a decree of dissolution to be executed at the mediation. Ex. 2, Dep. George at 200-204; Ex. 20, Feb. 27, 2004, letter. However, because the mediation was arranged on sueh short notice, the documents were not the end result of negotiations or an actual agreement between Cornell and Silver, Rather, they were in essence Cornell’s proposal to which Silver had not yet responded. George thus informed Cornell that it would be necessary to take the documents along and revise them at the mediation to reflect any actual agreement: My office and I have been nagging him [Silver's attomey], calling ‘him, sending him anything he needs to be in a position to completely settle on Monday. We will be taking all of the final GEORGE'S OPPOSITION TO PLAINTIFF'S MOTION FOR, bat ap at atlatl PARTIAL SUMMARY JUDGMENT RE BREACH OF THE Eff aune esses EE STANDARD OF CARE -7 ‘swerrum Wanttoro% 96104 ‘61 s22:2000wer Awe ew 10 ul 12 13 14 15 16 7 18 19 20 24 22 23 24 25 26 documents with us on Monday and can revise them at mediation and sign off on them if agreement can be reached. Ex. 18, Feb. 24, 2004, email. Then, the day before the mediation, George received Silver’s mediation materials and spoke to Silver's attomey. Ex. 21, Feb. 29, 2004, letter. She leamed that Silver had issues regarding the parenting plan and that there would not be any response to the proposed property division until the morning of the mediation. Id, George communicated this to Cornell with the comment “[o]bviously we have some work to do tomorrow.” Id. F. George’s Strategy to See Whether Silver Would Agree to Accept Only Revenue from the Song Catalog Generates No Respons One of the documents needed to finalize a divorce by March 1, 2004, was an agreement to divide Cornell’s interest in a catalog of songs he had written or co-written. George explained to Comell that she was not an intellectual property lawyer and would need help in drafting an appropriate document. Ex. 1, Dep. Cornell at 216-17, 243. George’s first choice to assist her was Rick Schneider, a California entertainment attorney with whom she had previously worked. However, Comell did not want to hire Schneider because he was too expensive. Ex. 2, Dep. George at 205-06; Ex. 22, Oct. 30, 2003, email. Accordingly, when Comell announced he wanted a divorce in five weeks, George hired Steve Winters, a Seattle intellectual property attorney. As was noted above, Cornell told George from the start that he wanted to split the song catalog with Silver to avoid a valuation. Similarly, Comell’s offer to induce Silver to give him a divorce in a matter of weeks was haif of “everything,” aside from real estate. Ex. 23, Declaration of Susan Silver §ff 4-6 (previously filed on May 2, 2008), Ex. 1, Dep. Comell at 36-38. Accordingly, when George worked with Cornell’s accountant, Lee Johnson, to prepare a spreadsheet listing assets to be divided, she described the split of the song catalog in broad terms: “50/50 of alll pre-separation intellectual property.” Ex. 24, Feb. 24, 2004, email; Ex. 25, Feb. 27, 2004, email. George sent this spreadsheet to Cornell for review and GEORGE'S OFPOSITION TO PLAINTIFF'S MOTION FOR Byawes & KELLER us PARTIAL SUMMARY JUDGMENT RE BREACH OF THE Spee Lc leis STANDARD OF CARE- 8 Sarin, WasntwoTon 98106 ‘2006222000,comment more than once. Exs, 24 and 25, Comell acknowledges that he reviewed the spreadsheet and that it was then used at the mediation as a tool to assist in negotiating a division of property. Ex. 1, Dep. Comell at 66, 76, 80. Notwithstanding the offer to split “everything” 50/50, Winters initially drafted a much narrower document which divided the song catalog such that Silver received only 50 percent of the revenue from the songs. Ex. 26, Feb. 24, 2004, email and draft agreement. Indeed, under Winters’ initial draft, even the sharing of revenue was limited to ten years or $5 maillion, Ex. 26 at 4.1. This limited offer of revenue was conceived as a negotiating strategy to see if Silver would take something less than half of “everything.” It was developed by Winters, George, and Lee Johnson (Comell’s accountant) who discussed that this would be an opening position to see what Silver would say in response: I said before, if T want to get to 50 percent I start at 70 or 80. I did not know what Susan might be willing to give up in all of this because I did not know Tom’s position. So I took an aggressive position, [ told Steve Winters he wants to share 50/50, draft a royalties agreement as the shot across the bow and let’s get a response from them as to what Susan is willing to work out with Chris. Ex. 2, Dep. George at 139:12-19: see also id. at 136, 213, Vol. 2 at 62: Ex. 27, Dep. Lee Johnson at 429:5-17 (“[A]s an initial draft to the other side we didn’t. .. want to offer more rights than revenue . .. not knowing exactly what Susan [Silver] wanted.”), Ex. 29, Dep. J. ‘Mass at 122-123 (“very aggressive approach . . . not even necessarily what Chris (Comell) wanted”), Given its aggressive nature, George’s associate, Julie Mass, believed that Silver very likely would not sign the Revenue Sharing Agreement as initially drafted. Ex. 29, Dep. J. Mass at 130 (“99 percent sure she wasn’t going to go for the proposal as he drafted it”), George sent Winters’ draft Revenue Sharing Agreement to Cornell, explaining: “tis justa raft proposal-obviously you and Susan will both need to review and approve it.” Ex. 26, Feb. 24, 2004, email. GEORGE'S OPPOSITION TO PLAINTIFF'S MOTION FOR ae ee ee PARTIAL SUMMARY JUDGMENT RE BREACH OF THE Tegan eee STANDARD OF CARE-9 Seatten, Wastmonor 99204 "206 69.0000,George also sent it to Silver's attomey with the expectation that he would respond prior to the mediation and clarify what Silver would agree to take in the resulting negotiations, Ex. 2, Dep. George at 136, Vol. 2 at 63. In fact, as was noted above, Silver did not respond on property issues prior to the mediation. In addition, just prior to the mediation, Silver's attomey announced that Silver would not sign any agreement at the mediation regarding the song catalog without consulting a Los Angeles entertainment attomey, who could not be retained on such short notice. Ex. 2, Dep. George at 204:18-22, Vol. 2 at 58-59; Ex. 29, Dep. J. Mass at 151:16-152:25. Instead, to meet Comell’s deadline of a divorce by March 1, Silver proposed there would be an agreement at the mediation on the key points such as what she would get half of, with the specifics of an actual agreement to be negotiated later between Steve Winters and whatever entertainment attorney she retained in Los Angeles, Ex. 29, Dep. J. Mass at 152; Ex, 2, Dep. George Vol. 2 at 56-57. G. — Atthe Mediation, George Expresses Concem That Cornell Is in a Hurry. Thus, George arrived at the mediation with a draft proposal which she had no idea whether Silver would accept, and a packet of draft agreements that would have to be revised by hand if Comell was going to get divorced that day. George’s associate Julie Mass was also present at the mediation. Although George repeatedly asked Comell to come to Seaitle to discuss his divorce with her, he chose instead to arrive from Paris the night before the mediation. Ex. 28, Feb. 27, 2004, email; Ex. 1, Dep. Comell at 197; Ex. 2, Dep. George at 199. Given all the issues and the need to reach a final agreement that day, George emailed Comell just before the mediation, advising that his accountant, Lee Johnson, “has been of invaluable assistance,” and that both she and Lee Johnson thought it “wise” that Johnson attend the mediation. Ex. 28, Feb. 27, 2004, email. However, Cornell decided on the morning of the mediation that he did not want to pay for Johnson to attend, and directed George that she could call him if there were questions. Cornell felt the same way about Steve Winters. Ex. 2, Dep. George at 155-158; Ex. 29, Dep. J, Mass at 136:25-137:7, 187-88, 190. GEORGE'S OPPOSITION TO PLAINTIFF'S MOTION FOR Byrwes & KELLER us PARTIAL SUMMARY JUDGMENT RE BREACH OF THE So aoe Brarpan Or carer Searren, Wasianorow OB10% ‘2061 622.2000oe aA eo N 10 ul 12 13 14 15 16 7 18 19 20 21 2 23 24 25 26 Rosselle Pekelis, the mediator, testified that, at the mediation, Comel] was “impatient,” Ex. 19, Dep. Pekelis at 12:11-13, “not very interested in the details,” id, at 54:2- 4, “in a hurry to get the divorce done,” id. at 11:21-23, and stated “the divorce has got to get done . . . consistent with [his] deadline,” id. at 52:21-25, She also recalled that “throughout the day,” she heard George expressing “concern about this hurry” to Comell. Id. at 30:19-23. In fact, Comell was in such a hurry, Silver became suspicious that his girlfriend must be pregnant. When Pekelis told George that this suspicion was causing problems, George asked Comell, who denied it was true. Id. at 17:9-19:10, To move things along, Comell was “agreeable” at the mediation and his approach was not to bargain or negotiate when Silver raised issues. Dep. J. Mass at 32:23-34:6; Ex. 2, Dep. George Vol. 2 at 61:9-23. Most of the mediation was spent on parenting issues. Ex. 2, Dep. George at 200. Property issues were not discussed until late aftemoon/eatly evening. Id, Several times during the mediation, George called Lee Johnson or Steve Winters to update them on the status of negotiations. Ex. 2, Dep. George at 155-158. By early evening, however, Comell told her to release them because they were not needed. Id, at 157:17-158:10. Ex. 29, Dep. J. Mass at 161:14-21. H. Silver Refuuses to Limit Herself to Sharing Only Revenue from the Song Catal The song catalog came up last, late in the evening. Ex. 1, Dep. Cornell at 253:18-20 (“late the night of the mediation”). Silver told Pekelis that she would not agree to a division of the song catalog where she shared only revenue because she believed (1) the song catalog ‘was community property, and (2) Comell had offered a split of “everything” in return for a divorce by March 1, 2004. Ex. 23, Decl. of Susan Silver, J 8; Ex. 29, Dep. J. Mass at 154:1- 5, Pekelis conveyed this position to George and Comell by saying something like Silver would not sign the language drafted by George and had written out new language that she wanted: GEORGE’S OPPOSITION TO PLAINTIFF’S MOTION FOR, Byres & KELLER us PARTIAL SUMMARY JUDGMENT RE BREACH OF THE cl STANDARD OF CARE - 11 SEATTLE, WASHINOTON 98104Cer anne un 10 W 12 B 14 15 16 7 18 19 20 aL 22 23 24 25 What I recall is Rosselle coming in the room and saying she (Silver) does not like this agreement, she will not sign it. She has some other language she’s proposing. ... Ex. 29, Dep. J. Mass at 155:6-12. The reference to language that Silver would not sign was not just a reference to the Revenue Sharing Agreement drafted by Winters. Id, Rather, George had drafted a Property Settlement Agreement to be executed at the mediation so that Cornell could enter his divorce. Id, In that agreement, there was a Section XII entitled “Property To The Wife,” listing everything Silver was to receive in the divorce. Ex. 30, Property Settlement Agreement at 6- 8. The language which Silver objected to provided that she would receive: T. Fifty percent of all royalties and distributions from any contracts entered into for work performed by either party prior to the date of separation or songs written up to the date of separation. .. Id. at 7-8. Silver would not agree to this language and wrote out new language that did not mention “royalties and distributions”: Susan and Chris will each own 50% of the rights arising from ‘works created prior to the filing of the petition. Id, at 7A. Silver's language was handwritten with the word “own” appearing above the other writing, inserted into the text via a line and an arrow. Id. Silver’s language went on to say that a definitive agreement would be negotiated within 30 days and that there would be binding arbitration regarding any dispute or failure to agree, Id,; Ex. 2, Dep. George at 179:17-25. George, George's associate Julie Mass and Cornell then discussed Silver's proposal with perhaps some participation by Pekelis, Ex. 29, Dep. J. Mass at 192. First, George told Cornell that she thought it was a bad idea to “piecemeal” a settlement, where many of the specifics would have to be negotiated later or decided by an arbitrator. Ex. 2, Dep. George at 207:20-208:4, Vol. 2 at 60; Ex. 31, May 12, 2004, email; Ex. 29, Dep. J. Mass at 162. George also expressed concer that “this was being rushed.” Ex. 29, Dep. J. Mass at 163:5-6. GEORGE'S OPPOSITION TO PLAINTIFF'S MOTION FOR, ‘BERNER & HELIER uy PARTIAL SUMMARY JUDGMENT RE BREACH OF THE soc STANDARD OF CARE- 12 ‘snarcun Waermowor 98108 ‘e081 828.2000However, Comell wanted to get a divorce that day if possible, and waiting until Silver could consult an entertainment attorney and work out a complete agreement was not acceptable to him. Ex. 2, Dep. George at 207-08; Ex. 29, Dep. J. Mass at 156. George then explained that she was not an intellectual property attorney and could not explain how the language would be applied in practice, but that Silver’s language was what Cornell had been talking about from the start, he was sharing half of “everything” with her. Ex. 2, Dep. George at 124:6-12, Vol. 2 at 60; Ex. 29, Dep. J. Mass at 155-156, 158-59, 162. Comell looked at Silver's language and decided that he wanted to share with Silver because she had been with him from the beginning. Ex. 29, Dep. J, Mass at 156:19-25, In addition, an agreement on division of the song catalog was “the last piece” necessary to achieve his goal of a divorce by March 1, 2004. Id. at 163. Eventually, Comell and Silver each initialed the resulting handwritten language, which was called page or paragraph “7A.” See Ex. 30; Ex. 1, Dep. Cornell at 84:5- 17, Atthe same time, they crossed out the language about sharing “royalties and distributions” in George’s Property Settlement Agreement and both initialed that deletion, Ex. 1, Dep. Cornell at 246-48. I Comell Promptly Marries His Pregnant Girlfriend, The next morning, Corel! was first in line at the courthouse to finalize his divorce. Ex. 2, Dep. George at 208:2-4; Ex. 29, Dep. J. Mass at 194. He married his girlfriend, Vicky, several weeks later. Ex. 1, Dep. Cornell at 85. Vicky Comell has testified that she learned she was pregnant with Comell’s child on January 15,2004. Ex. 32, Dep. V. Comell at 44, This was five days before Comell called George on January 20, 2004, to tell her he wanted to quickly finalize his divorce by March 1. Ex. 1, Dep. George at 208. Comell acknowledges that he learned Vicky was pregnant some time in Jate January of 2004, Ex. 1, Dep. Comell at 190:13-17. Vicky gave birth to the Comells’ first child in September of 2004, just about the time Comell would have been in trial with Silver had his divorce not settled. Id. at 191-92. ‘GEORGE'S OPPOSITION TO PLAINTIFF’S MOTION FOR BYRNES & KELLER ur PARTIAL SUMMARY JUDGMENT RE BREACH OF THE ppnntink cop lean STANDARD OF CARE - 13 SeATTEE, WAniNGTON 9105awe 10 iu 12 13 14 15 16 7 18 19 20 2L 22 23 24 25 26 Ii. STATEMENT OF ISSUES Whether the Court can rule as a matter of law based on selected deposition exhibits that George fell below the standard of care. IV. EVIDENCE RELIED ON Defendant George relies on the pleadings and papers on file herein and on the Declaration of Ralph E. Cromwell, Jr., the Declaration of Janet A. George and the exhibits attached thereto served herewith, and the Declaration of Silver which was previously filed. V. LEGAL AUTHORITY AND ARGUMENT A. A Jury Could Easily Find That George Met the Standard of Care. On this record, a jury could easily find that George met the standard of care under the difficult circumstances imposed by Comell. George did everything humanly possible to slow him down and advise him of her limitations. He repeatedly refused her advice, refused to tell her why he was in a hurry, refused to extend his “deadline,” refused to come to Seattle to meet with her. She then, against all odds, got him what he wanted ~ a divoree by March 1, 2004, on exactly the terms he repeatedly told her to offer — sharing “everything” 50/50 with Silver plus an offer of the two houses as an inducement to get the divorce done quickly. If, with the benefit of hindsight, Comell now regrets sharing all of his intellectual property 50/50, or wishes more had been done to clarify the specifics of how that would work in practice, itis not because George fell below the standard of care, It is because he refused to listen to her, thought he knew best, and wanted to marry his pregnant girlfriend. B. ¢ Standard of ‘urns on Reasonable Conduct Under the Particular Circumstances, a Question of Fact. ‘To comply with the duty of care, an attomey must exercise that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonably careful and prudent lawyer in the practice of law in this jurisdiction. Hizey v. Carpenter, 119 Wn.2d 251, 261, 830 P.2d 646 (1992). The touchstone for determining compliance with the duty of care is whether the attorney acted reasonably under the circumstances. Malpractice liability “is GEORGE'S OPPOSITION TO PLAINTIFF'S MOTION FOR BYRNES & KELLER ur PARTIAL SUMMARY JUDGMENT RE BREACH OF THE 3000 Seoown AN STANDARD OF CARE - 14 SEATTLE, WASHINGTON 08104 ‘@01 632.2000Ce A Awe e 10 n 12 13, 14 15 16 7 18 19 20 21 23 24 25 26 premised on the conduct of the ‘reasonable’ lawyer.” Id. at 262. Thus, whether any duty has been breached is dependent upon whether the attorney acted reasonably “under the circumstances of the representation.” Id,, accord Barrett v, Freise, 119 Wn. App. 823, 842-43, 82 P.3d 1179 (2003); Hansen v. Wightman, 14 Wn. App. 78, 92-93, $38 P.2d 1238 (1975). The standard of care does not require perfection. An attorney can make a mistake and still comply with the standard of care. See Stangland v. Brock, 109 Wn.2d 675, 681-82, 747 P.2d 464 (1987) In short, an attomey’s duty is to act as a reasonable attorney would under the circumstances. Whether specific obligations existed under the circumstances and whether a reasonable attomey would or would not have acted in a specific manner are questions of fact, that generally must be established by expert testimony. See Hizey, 119 Wn.2d at 261-65; ‘Walker v. Bangs, 92 Wn.24 854, 858, 601 P.2d 1279 (1979); Hansen, 14 Wn. App. at 93. As the court in Hansen observed, where the existence of any “duty to inquire or disclose” is dependent upon disputed facts under the circumstances, “then it is for the trier of the fact to decide.” Id, at 87. C. — Comell Asks the Court To Find That George Breached the Standard of Care Based of ‘Two Cases Which Are Completely Distinguishable. Here, the Court cannot determine as a matter of law that George acted unreasonably or fell below the standard of care. Comell argues that because George did not advise Comell that use of the word “own” in the language drafted by Silver might convey an ownership interest in his songs, she failed to advise him of the legal consequence of the language. However, Corel] offers no expert declaration that George fell below the standard of care and ignores most of the record which is replete with warnings by George that she was not an - ‘The issue of whether an attorney erred is distinct and independent from the issue of whether the attorney was negligent. The attorney who has erred might not have been negligent, even if the error caused injury to the client. Ironically, the attomey, wiho was negligent, ultimately may ‘tum out not to have erred. 2 Ronald E, Mallen & Jeffrey M. Smith, Legal Malpractice § 20.1, at 1267 (2008). GEORGE'S OPPOSITION TO PLAINTIFF'S MOTION FOR BYRNES & KELLER ue PARTIAL SUMMARY JUDGMENT RE BREACH OF THE ee mae STANDARD OF CARE - 15 Searrun Wastonon 88104Car Aw ee De 10 M1 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 intellectual property attorney, that Comell should slow down and consult experts, that he come to Seattle and do more to participate and that he was sharing “everything” with Silver. As authority for the proposition that the Court can nevertheless rule, as a matter of law, that George fell below the standard of care, Cornell cites Jones v . Allstate Ins, Co., 146 Wn.2d 291, 45 P.3d 1068 (2002) (“Jones”), and Bowers v. TransAmerica Title Ins, Co., 100 Wn.2d 581, 675 P.2d 193 (1983) (“Bowers”). However, Jones and Bowers are very different from this case. Both involve non-attomeys drafting legal documents for both sides of a transaction without advising of the inherent conflict or of the legal consequences of signing. Jones involved an insurance adjuster obtaining a release for personal injuries, 146 Wn.2d at 294; Bowers involved an escrow agent who prepared sale documentation for a real estate transaction, 100 Wn.2d at 584, The actual holding in Jones illustrates the many differences with this case: Allstate’s claims adjuster here fell below the standard of care when she advised the Joneses to sign the release, did not properly advise them that there were potential legal consequences in signing the release. . . or alternatively refer them to independent counsel, did not properly disclose to the Joneses thet she had an interest wich conilicted (was adversarial) with theirs, and followed Allstate’s policy of discouraging attorney involvement in the claims process. 146 Wn.2d at 312. Here, one can go down this list of factors and distinguish George's conduct from every one of them. D. — George’s Conduct Is Completely Distinguishable from Jones and Bowers, George is an attomey licensed to practice law. She did not represent both sides of the negotiations. Thus, unlike Jones, there are no allegations that she had a conflict of interest. Unlike Jones, there is no allegation that she discouraged attomey involvement, Nor can it be said that she advised Comell to agree to the language of page 7A. George’s actual advice was that she was concemed that he was in a hurry, and that it was a bad idea to “piecemeal” the settlement leaving significant issues as to the meaning of page 7A open for later negotiation or arbitration. Cornell ignored this advice. His insistence GEORGE'S OPPOSITION TO PLAINTIFF’S MOTION FOR Pee eee ee PARTIAL SUMMARY JUDGMENT RE BREACH OF THE ee STANDARD OF CARE - 16 SEATTLE, WASHINCTON 98104Cera AHR ON 10 1 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 on hurrying and his “deadline” are why there was not enough time to get Silver’s response to ‘Winters’ draft Revenue Sharing Agreement and work out an actual agreement at mediation, thereby identifying any issues or misunderstandings. Indeed, George specifically told Comell in writing that: “In this rush I am concemed that issues are not clear.” Ex. 11, Feb. 19, 2004, -20. Thus, unlike Jones, George did not recommend that Comell agree to page 7A. Rather, she did her best to slow him down and caution him that the email; Ex. 1, Dep. Comell at 140: choices he was making entailed risks. Also unlike Jones, this is not a case where George failed to advise Comell of her limitations or her need to consult with other counsel. Virtually the first advice George gave in writing was that she needed to hire an intellectual property attorney to assist her with intellectual property issues. Ex. 22, Oct. 30, 2003, email; Ex. 1, Dep. Cornell at 114. Comell acknowledges understanding that George needed help with intellectual property issues and that was why she hired Steve Winters. Ex, 1, Comell Dep. at 118-121, 216-17, 243; see Ex. 33, Jan. 24, 2006, email. Indeed, when Silver’s attorney later wanted to depose George ina subsequent arbitration over the meaning of paragraph 7A, Comell explained to his lawyer in ‘graphic terms his understanding that George was not an intellectual property attomey and had no role in intellectual property issues: Let him [Silver's attomey] depose Janet George, what can she possibly (sic), in terms of any [Intellectual Property] agreement. She’s not a [Intellectual Property} kind of attomney. She had someone else draft it... She can’t help them except by proving to be incompetent. We had no agreement, they rejected the revenue sharing agreement and that was the end of it, Janet never handled anything in terms of IP, So what the hell is he thinking. Ex, 33, Jan, 24, 2006, email; Ex. 1, Dep. Comell at 242-43. George reminded Commell at the mediation that she was not comfortable with intellectual property issues, suggesting that they call Winters, only to have Comell refuse: A. No. Tasked Chris, should I call Steve Winters and get him down here and he said no. Q And you remember that conversation? GEORGE'S OPPOSITION TO PLAINTIFF'S MOTION FOR ‘BYRNES & KELLER us PARTIAL SUMMARY JUDGMENT RE BREACH OF THE. Han LCL peda STANDARD OF CARE - 17 Searten. Waesnowor 98104 ‘S06'629.2000See uyr sn eon u 12 13 14 15 16 7 18 19 20 21 2 23 24 25 26 A. Tremember that conversation because I was on the phone a lot to Lee Johnson and a lot to Steve Winters, more to Lee Johnson. I remember the table where the phone was and where Chris was in the room and I remember on the phone saying, you sure you don’t want Lee Johnson to come down, you are sure you don’t want Mr. Winters to come down. Ex. 2, Dep. George at 156:11-23. If Comell then felt comfortable in proceeding because he understood his interests in the song catalogue, or because he thought it was fair to share with Silver, or because his girlfriend was pregnant and he wanted a divorce, or for any other reason, then that is his right - but he should not blame George for the choices he made, Finally, unlike Jones, this is not a case where George failed to inform Comell that there would be legal consequences to acceptance of the language of page 7A. In fact, itis the opposite, George repeatedly informed Cornell in writing that the Property Settlement Agreement would have significant legal consequences, that it would be a done deal, that he would have to live with it for years, that millions of doliars were involved, and that she was concemed that he was going too fast to carefully consider or define the issues. George told him in writing that he should consider a brief extension to allow sufficient time to clarify all the issues. Because he disregarded this advice, it was not possible for George (or for anyone else) to give Comell advice about what page 7A meant, except in the most general of terms. This is because Comell agreed, against George’s advice, that virtually all of the specifies ‘would be negotiated later by other attomeys who specialized in intellectual property or entertainment law issues. Nevertheless, Comell argues that George was negligent because she specifically did not explain that Silver's use of the word “own” might effect a transfer of ownership rather than just revenue. However, George told Comell that he was sharing “everything” with Silver. Comell does not explain why the concept of “everything” is unclear or why he would reasonably believe that “everything” meant something less, such as only revenue. In addition, George referenced sharing “everything” in a situation where Comell was being asked to cross GEORGE'S OPPOSITION TO PLAINTIFF'S MOTION FOR Byrnes & KELLER us PARTIAL SUMMARY JUDGMENT RE BREACH OF THE sooctT toon STANDARD OF CARE - 18 aeons eer ‘0m 6355000Sem rx aueuna 12 13 14 15 16 7 18 i9 20 21 22 23 24 25 26 out and initial language referring to “royalties and distribution,” while initialing new language that prominently contained the word “own.” A lawyer such as George would reasonably believe that a client crossing out language about sharing royalties and distributions and then substituting new language described in terms of “everything” would be alerted that a change was being made, Finally, in terms of what George reasonably believed Comell would understand about “everything,” a jury would consider Comeli’s oft-expressed intent to make Silver a “generous” offer to induce her to give him a quick divorce that she did not want. Ex. 1, Dep. Comell at 36-37; Ex. 2, Dep. George at 208-209. In a situation where a client repeatedly affirms he wants to be not just “fair,” but “generous,” George would have no reason to believe that Comell would interpret “everything” in a limited fashion. E, There Are Other Factors Affecting the Standard of Care Which the Court Cannot Evaluate as a Matter of Law. In short, Jones and Bowers offer no support for Comell’s assertion that the court can tule as a matter of law that George fell below the standard of care in advising him. The situation here is distinguishable in every respect. Moreover, the standard of care is not an inflexible, one-size-fits-all rule; it turns on the particular circumstances. Here, there are other difficult circumstances affecting the standard of care not present in either Jones or Bowers: + It was late at night after a long day of negotiations; © The client was in a hurry and refused to slow down or extend his “deadline”; © Acomplex area of Iaw was involved; © Theclient had been informed that George did not feel comfortable in advising on intellectual property issues and rejected suggestions that other professionals, including an intellectual property attorney and long-standing business manager familiar with the music industry, attend to assist; and * The client would not explain why he was in a hurry so that options could be considered. How even one of these factors affects the standard of care is not addressed in Jones or Bowers. Nor does Comell offer any other authority or explanation of how the Court can evaluate the effect of these circumstances on the standard of care as a matter of law. GEORGE’S OPPOSITION TO PLAINTIFF'S MOTION FOR BYRNES & KELLER ur PARTIAL SUMMARY JUDGMENT RE BREACH OF THE. Heceemanmeomitt STANDARD OF CARE - 19 Sart, WastineoToN 98104Cer anron 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 VI. CONCLUSION, Comell is a celebrity. He expects to be insulated from life’s problems or inconvenient details. Here, despite repeated efforts to advise and counsel him, George was not able to insulate Comell from all of the consequences of the choices he made. She did, however, get him exactly what he wanted — a quick divorce by March 1 — on exactly the terms he instructed +her to offer — a 50/50 split of everything other than real estate. George did so under difficult circumstances for a client who repeatedly refused her advice and would not say why he was in ahurry. Ifnow, with the benefit of hindsight, Comell is dissatisfied with the bargain he made, he should not blame George. There is no basis on which the Court can conclude that George fell below the standard of care as a matter of law based on selected portions of deposition testimony as Comell requests. Accordingly, Comnell’s motion for partial summary judgment should be denied. DATED this 19th day of May, 2008. BYRNES & KELLER ur py Beret ©. Conmuets ‘: Ralph E. Cromwell, Jr, WSBA #11784 Christina L. Haring, WSBA #30121 Attomeys for Defendants Janet A. George and Janet A. George Inc. P.S. GEORGE'S OPPOSITION TO PLAINTIFF'S MOTION FOR ByRwus & KELLER ur PARTIAL SUMMARY JUDGMENT RE BREACH OF THE oer STANDARD OF CARE - 20 SEATTLE, WASHINGTON 98104 ‘om o222000Ce Ia Hehe HN 10 oF 12 13 14 1s 16 17 18 19 20 21 23 24 25 26 CERTIFICATE OF SERVICE ‘The undersigned attomey certifies that on the 19th day of May, 2008, a true copy of the foregoing pleading was scrved on each and every attomey of record herein via the means listed below: HAND DELIVERY Mark Johnson Sims Weymuller Donovan R. Flora Tohnson Flora PLLC 2505 Second Avenue, Suite 500 Seattle, WA. 98121 Counsel for Plaintiff Chris Comell FACSIMILE & FIRST CLASS MATL Gary Abboit Klarice Benn Abbott & Paris PC 111 SW Fifth, Suite 2650 Portland, OR 97204 Counsel for Defendants Voldal Wartelle & Co., P.S. Rasa € Corsssr0 2 GEORGE’S OPPOSITION TO PLAINTIFF'S MOTION FOR Byrnes & KEeLuer us PARTIAL SUMMARY JUDGMENT RE BREACH OF THE enemies STANDARD OF CARB - 21 |SRATTER, WARHINOTON 9910