August 20, 2020

Michael Gross recognized by Best Lawyers in America 

Michael Gross was selected for inclusion in The Best Lawyers in America 2021 edition.  Best Lawyers is one of the oldest and most respected peer-review publications in the legal profession.  Inclusion each year reflects the consensus opinions of leading lawyers about the professional abilities of their colleagues.  Michael was selected for inclusion among appellate lawyers.  Michael Gross Law Office was separately selected for appellate practice in the U.S. New & World Report list of Best Law Firms 2021.  The office  was selected to the list for appellate practice.

November 15, 2020

Michael Gross selected to 2020 Missouri & Kansas SuperLawyers list

Michael Gross was selected to the 2020 Missouri & Kansas SuperLawyers list for appellate practice.  SuperLawyers is a rating service operated by Thomson Reuters.  Each year 5 per cent of the lawyers in each region are selected through a multiphase process that includes a statewide survey of lawyers, independent research, peer nominations, and peer evaluations.  Michael also was named to SuperLawyers lists of the top 50 lawyers in St. Louis and the top 100 lawyers in Missouri and Kansas.

February 22, 2021

Michael Gross named one of Missouri Lawyers Weekly’s “most powerful attorneys in appellate law”

The trade weekly said its list features “practitioners who have defended or opposed notable jury verdicts and helped to set important precedents that shape the law.”  The paper reported: “Our editorial team reviewed published appellate opinions, interviewed attorneys and other leaders around the state, and examined the archives of Missouri Lawyers Weekly to compose a list of what we believe are the 30 most powerful appellate attorneys in Missouri.”

April 26, 2021

John Garvey and Michael Gross Obtain Affirmance of Judgment Enforcing Law Firm’s Right to Recover Fees After Withdrawal From Litigation

The Missouri Court of Appeals affirmed a judgment enforcing a law firm’s right to recover fees from its former client in Pivot Holdings LLC v. The Daniel And Henry Company.  Michael Gross and the Hon. John Garvey (ret.) represented the law firm on appeal.

The law firm had represented two related corporations as plaintiffs against a third company.  It sought and was granted leave to withdraw from the case when the clients failed to resolve their own disagreement about whether to settle their claims or continue preparing for an imminent trial.  The law firm then asserted a lien for attorney fees against proceeds of that litigation.

One of the clients eventually obtained a substantial verdict.  The trial court conducted a hearing and entered judgment enforcing the former law firm’s lien against the proceeds of that verdict.  The ex-client appealed.  It raised numerous challenges to both the right of the firm to recover its fees after having withdrawn from the case and the manner in which the trial court had ordered payment to be made.

After the appeal was briefed and argued, the Court of Appeals held that “none of these points have merit.”  The court rejected in particular the former client’s several arguments contending that the law firm had agreed to exempt it from liability for fees and  collect only from its other client.  After a thorough review of evidence presented in the trial court, the appellate panel concluded:

In sum, the evidence showed there was no express agreement between the law firm and its client to absolve the client of responsibility for paying the firm for its services … In the absence of an express contract regarding attorney’s fees, the universal rule is that a promise to pay the reasonable value of an attorney’s services is implied.  Thus the trial court correctly imposed an implied promise in this case.

The Court of Appeals also rejected the notion that the law firm had forfeited its right to be paid by withdrawing from the client’s case.  The court acknowledged the general rule that a lawyer who withdraws from a case without justification is not entitled to payment for the services he rendered.  But it also recognized a proviso to that rule:

Forfeiture is generally inappropriate when the lawyer has not done anything willfully blameworthy, for example, when a conflict of interest arises during a representation because of the unexpected act of a client or third person.

The Court of Appeals affirmed the trial court’s determinations that the law firm “had just cause to withdraw based on the clients’ conflicting positions regarding settlement” and thus that “forfeiture of the firm’s fee was inappropriate on this record.”  The appellate court noted the firm’s efforts to get the clients to resolve their conflicting instructions with respect to settling their case or continuing to prepare for trial, as well as its actions to protect both clients from adverse consequences when resolution was not forthcoming and withdrawal became necessary.  The court flatly rejected the notion that the firm had violated any duty of loyalty or trust, affirming the trial court’s determination that the firm “had just cause to withdraw” and was entitled to recover its fees.

 

July 1, 2021

Lauren Bronson, Mark Bronson, and Michael Gross obtain dismissal of police officer’s appeal in excessive force case

A junior college faculty member tried to address the junior college district board at a public meeting.  The professor was speaking out of turn to protest the way the meeting was being run.  When he failed to leave the room upon request, the  board member in charge of the meeting instructed a police officer to remove him.

The police officer approached the professor from the rear of the assembly room.  A moment later he tackled him, driving him face-first into the floor and causing him to suffer a brain injury.  On the floor  the officer placed his knee between the professor’s shoulder blades, then got him up and applied a wrist lock before walking him out of the assembly room.

The professor sued the officer for using excessive force while making that arrest.  He contended that the arrest was for a non-violent misdemeanor, that he had not posed a threat to anyone, and that he had not resisted arrest or tried to flee.  In the United States District Court the police officer claimed that the faculty member had suddenly charged toward the board members at the front of the room, necessitating the violent takedown.  He moved for summary judgment on the basis of qualified immunity–i.e., his actions during the arrest were reasonable and he had not violated any of the professor’s civil rights.

The professor’s version of the event was that the officer approached him from behind and bumped him, causing him to take one reflexive step forward, and then performed a leg sweep and threw him to the ground. Several witnesses submitted affidavits in support of that version.  The District Court considered that testimonial evidence as well as the junior college district’s video recording of the event.  The Court found the video inconclusive and the testimonial evidence sufficient to allow reasonable jurors to believe the professor’s version of the incident.

The District Court denied the police officer’s motion for summary judgment, and the officer appealed. Lauren Bronson, Mark Bronson, and Michael Gross represented the professor in the Eighth Circuit.

The Court of Appeals explained that “the problem with the police officer’s argument is that the district court never found that the professor erratically charged board members.”  Its opinion concluded:  “We find nothing in this record, including the video, that clearly contradicts the district court’s factual determinations or the professor’s assertion that the officer pushed him.”

The Eighth Circuit’s dismissal of the appeal was based on a unique feature of federal qualified immunity law.  The Court of Appeals explained that it has limited jurisdiction to conduct interlocutory review of a district court order denying qualified immunity in a civil rights case.  If the appeal is limited to the “purely legal question” of whether the evidence in the District Court was sufficient to allow a jury that was so inclined to find that the defendant had violated a clearly established civil right of the plaintiff, jurisdiction exists.  If the appeal, once analyzed, really is a claim that the District Court weighed conflicting evidence and came up with an incorrect decision, there is no appellate jurisdiction.  The appeal must be dismissed so that the case can move forward in the trial court.

The Eighth Circuit found that it had no jurisdiction to consider this appeal:

An officer “cannot create appellate jurisdiction by using qualified immunity verbiage to cloak factual disputes as a legal issue.”  We are required to look beyond the officer’s characterization of the issue and consider whether the argument, instead of raising a legal issue, is simply a claim that “the plaintiff offered insufficient evidence to create a material issue of fact,” which we lack jurisdiction to review.