The arguments within the complaints and the motions to dismiss are all contained within the following 5 documents: COMPLAINT AT LAW DEFENDANTS' COMBINED MOTION TO DISMISS (2-07-2018) MEMORANDUM IN SUPPORT OF DEFENDANTS'COMBINED MOTION TO DISMISS (2-07-2018) PLAINTIFF'S RESPONSE TO DEFENDANTS' COMBINED MOTION TO DISMISS (3-27-2018) DEFENDANTS' REPLY IN SUPPORT OF COMBINED MOTION TO DISMISS A number of corrections are needed. In these notes I go over each document and list each correction that I feel is necessary by page and section number. COMPLAINT AT LAW page 4, section 16: correction: the binding mediation was not chosen by Dulberg. He was forced into mediation by a direct order of the bankruptcy trustee. (Proof in Boudin case files, BK Docs folder) The trustee filed a motion for authority to enter into "Binding Mediation Agreement". The bankruptcy judge ordered the motion granted. A "high-low agreement" was not executed by Dulberg. It was ordered by the trustee and Dulberg was not given a choice. page 3, section 13: All statements are true. Detailed evidence of how Mast told Dulberg that Dulberg should accept $5,000 or he will receive nothing at all can be found in the email exchange within files 2-180.pdf to 2-207.pdf in the email folder. page 5, section 21: All items are correct. In addition, Mast informed Dulberg that Gagnon was insured for only $100,000. For 3 years working with Mast, Dulberg was informed and believed that the Gagnon insurance policy had a limit of $100,000 dollars. (proof: see file 2-104.pdf among email files). Dulberg later found out through successor attorneys that the actual insurance limit is $300,000. (proof: see boudin files, "def home insurance policy") DEFENDANTS' COMBINED MOTION TO DISMISS (2-07-2018) Page 1, section 1: minor correction: McGuires are not next-door neighbors. They live in different sub-divisions. Gagnon is not Dulberg's lifelong friend. MEMORANDUM IN SUPPORT OF DEFENDANTS'COMBINED MOTION TO DISMISS (2-07-2018) Page 1, bottom of page: Dulberg was ordered into binding mediation by a motion of the bankruptcy trustee granted by the bankruptcy judge. Dulberg never executed a high-low agreement. The bankruptcy trustee ordered the the acceptance of the high-low agreement. Dulberg was not given a choice. Page 5: It is stated that, "Simply put, Dulberg fails to plead any facts in support of his conclusions that there was some liability against the McGuires." After Dulberg stopped being represented by Mast, Dulberg contacted a tree and chainsaw expert named Dr Bobby L. Lanford, PhD. When Dulberg retained a new attorney, Dr Lanford was hired as an expert witness for Dulberg. The findings and conclusions of Dr Lanford are that both Gagnon and the McGuires were responsible for the accident. It is stated that, "In section 21 of his complaint, Dulberg alleges negligence against Popovich and Mast, but fails to identify what actions should have been taken and were not." Mast should have inquired from an expert witness in chainsaws and/or in homeowner liability law whether the Mcguires are fully or partially responsible for the accident. There is no evidence that Mast considered this option even though Dulberg, who is not an attorney, followed this course on his own. It is stated: " In section 21 (a), Dulberg fails to identify what investigation and discovery should have been undertaken." In retrospect, it seems obvious that an attorney should consult with at least one experienced expert witness on chainsaws or on homeowner liability law involving chainsaws before agreeing to settle a lawsuit with a homeowner in connection with a chainsaw accident for such a low amount. It is stated: "In section 21 (b) and (c), Dulberg fails to identify or discuss the law that "defendants failed to understand." The chainsaw and tree expert that Dulberg contacted on his own, Dr Lanford, clearly states reasons why the homeowners are at least partially responsible for the accident. (evidence: see the Boudin folder called "Dr Bob") Also, as Dulberg met with attorneys after he was no longer represented by Mast, most every attorney he consulted told him that they thought that the small settlement with the homeowners was a mistake. Page 8: It is stated: "He alleges in section 20, without any factual support, that the information regarding the McGuires' liability as a property owner, was "false and misleading." As discussed above, Dulberg fails to allege any specific facts about any false and misleading information or other specifics as to Mast and Popovich's negligent conduct. Dulberg fails to plead facts in support of the case within the case, i.e. the McGuires' liability in the underlying cause of action." There is no evidence that Mast consulted any expert witness on chainsaws or homeowner liability. Mast informed Dulberg repeatedly that he should accept the offer of $5,000 or he will receive nothing. Mast told Dulberg that opposing counsel for McGuire will successfully petition the court to dismiss the lawsuit if Dulberg does not accept the $5,000 promptly and he will receive nothing. It was only later during the arbitration settlement when Dulberg knew the actual settlement amount, received the opinion of an expert witness on trees and chainsaws, and was told by other attorneys that the believed the agreement with the McGuires was a mistake that he realized that the information from Mast concerning the McGuires' liability was false and misleading. It is stated: " Dulberg alleges that he was advised to seek an independent opinion from an attorney handling legal malpractice matters on or about December 16, 2016, but provides no other explanation about why he was unaware of a claim until December 16, 2016. What happened after he signed the agreement on January 29, 2014?" Dulberg clearly states it was the amount awarded by the arbitration judge that helped him realize that the course of action taken by Mast was a mistake and the claims made by Mast were quite misleading. In addition, the expert testimony of Dr Lanford and the opinion of other attorneys who disagreed with Mast reinforced this realization when he understood that the actual settlement amount could not be collected due to the low settlement of the McGuire lawsuit. The arbitration meeting was held December 08, 2016. He sought an opinion from an attorney handling legal malpractice matters about 1 week later. Page 9, top of page: It is stated, "In other words, the plaintiff must explain why he did not discover the cause of action until December 16, 2016. The plaintiff has the burden of proving the date of discovery." Dulberg clearly explained that he did not discover the cause of action until he received an arbitration award on December 08, 2018. It is not difficult to prove when the arbitration meeting took place. PLAINTIFF'S RESPONSE TO DEFENDANTS' COMBINED MOTION TO DISMISS (3-27-2018) Page 3, section 3: It is stated: "DULBERG's malpractice action is proper because DULBERG properly established that due to POPOVICH's malpractice, the case was settled for an amount much lower than what DULBERG expected." Correction: Dulberg did not know what to expect until he knew of the final arbitration settlement amount. It was only after this settlement, reading the expert witness findings and conclusions, and listening to the opinions of other attorneys that Dulberg had an idea of what he could reasonably expect. Only after the arbitration was over could Dulberg for the first time form a reasonable opinion as to what one could expect in his situation. Page 4, section 4: Correction: It is very important to understand that the "high-low agreement" was never executed as part of the McGuire settlement. It was executed as part of the arbitration agreement of December 08, 2016. Also, Dulberg never executed the high-low agreement. The bankruptcy trustee made the decision to accept a high-low agreement. Dulberg was not given a choice. The bankruptcy judge ordered that the trustee is authorized to enter into a "binding mediation agreement" without Dulberg's consent. (evidence: see Boudin files, BK Docs folder). According to the final arbitration decision, the expert findings and conclusions of Dr Lanford, and the opinion of other attorneys contacted by Dulberg, evidence suggests that Dulberg would have recovered more if the McGuires had not been dismissed from the case. Page 6, section 16: This is absolutely true. Evidence from emails (files 2-180.pdf to 2-207.pdf, email folder) clearly demonstrates that Dulberg disagreed with the low settlement offer and only reluctantly agreed after being informed that he will receive either $5,000 or nothing and if he delayed he would receive nothing. The larger body of email evidence shows he was never comfortable with the settlement and felt pressured into it by being given a very narrow range of poor choices. Page 8, section 23: It is stated, "In this case there is no record of DULBERG specifically testifying to knowing exactly what the terms of the settlement agreement." This is true. And there is much email evidence demonstrating that he never understood why the McGuires were not at least partially liable for a chainsaw injury that happened on their property. Correction: Mast has nothing to do with any high-low agreement. The high-low agreement was accepted by the bankruptcy trustee as part of the December 08, 2016 arbitration settlement. THIS HAS NOTHING TO DO WITH MAST OR POPOVICH. It is stated, "Unlike in Larson Plaintiff, DULBERG was never informed by his attorneys that a "high-low" agreement would limit his recovery against the remaining defendants." This is untrue because the statement implies that Mast is in some way connected to or responsible for a high-low agreement that took place 2 years after the McGuire settlement of $5,000 was offered. This statement and others like it confuse the McGuires' settlement with the arbitration agreement ordered by the bankruptcy trustee 2 years later. The high-low agreement has nothing to do with Mast or Popovich and they are in no way responsible for it. Arguing as if they are responsible for or connected to the high-low agreement will allow the judge to dismiss the complaint. This mistake needs to be fixed. DEFENDANTS' REPLY IN SUPPORT OF COMBINED MOTION TO DISMISS Page 1, Introduction: It is stated, "One of the underpinnings of Dulberg's legal malpractice claim, is that a "high low agreement" he executed somehow caused him to settle his personal injury case for an amount lower than what he "expected." But Dulberg has failed to attach any such "high low agreement" to his complaint. He has also failed to identify the terms of the agreement in his complaint, and how the terms somehow affected his case. While in ^ 3 of his Response he argues that the "high low agreement" was executed as part of the McGuire settlement, in view of Illinois Supreme Court Rule 137, he has not and cannot allege in his complaint that a "high low agreement" was executed as part of the McGuire settlement, or that Popovich or Mast had anything to do with it. In any case, the execution of a "high low agreement" by Dulberg in connection with the McGuire settlement makes little sense at the time, in view of Dulberg's later mediation and settlement with the co-defendant, David Gagnon." Unfortunately, these arguments for the defendants are true. The high-low agreement was not executed as part of the McGuire settlement. It is a mistake to suggest that it was and it allows the defendants to easily find a glaring inconsistancy in otherwise strong arguments. They took advantage of the mistake and this weakness to have the original complaint dismissed. Dulberg should have been reading the arguments more carefully and should have spotted the mistake when it was first made. I will summarise the mistakes clearly: a) Dulberg did not execute any high-low agreement. It was forced on Dulberg on the authority of the bankruptcy trustee. The authority was ordered by the bankruptcy judge. Dulberg was never given a choice. b) Dulberg had no idea what to "expect" until he heard the final judgement reached in arbitration on December 08, 2016. He couldn't have known what expectation would be reasonable without first learning the results of arbitration, reading the findings and conclusions of expert witnesses, and learning of the opinions of other attorneys. c) The actual terms of the high-low agreement are not included in the complaint. The fact that the bankruptcy trustee had the authority to agree to a high-low agreement by order of the bankruptcy judge without permission or consent of Dulberg is not mentioned in the complaint. d) The high-low agreement was not executed as part of the McGuire settlement in December, 2013 and January, 2014. It was executed as part of the binding arbitration agreement ordered by the bankruptcy trustee in December, 2016. e) Popovich and Mast had nothing to do with the execution of the high-low agreement in December, 2016. f) The claim that the execution of the high-low agreement was made by Dulberg in connection to the McGuire settlement makes little sense. The terms of the two different settlements are being confused. Page 2: It is written, "Dulberg cannot allege that he was "forced" to settle his case with the McGuires for $5,000. He had every right to reject a settlement, or to retain new counsel. " This is untrue. The email evidence from November, 2013 to January, 2014 (files 2-180.pdf to 2-207.pdf in the email folder) clearly demonstrates that Dulberg was informed that he was sure to receive nothing if he didn't accept the $5,000 and he had a very limited amount of time to decide before this final offer would be withdrawn. It is written, "He also fails to allege how he would have fared any better against the McGuires, "but for" Popovich's alleged malpractice, and fails to explain why he waited over 2 years after Popovich withdrew in order to sue the firm" The expert witness findings and conclusions of Dr Lanford which were part of the binding arbitration agreement clearly and reasonably describe how both Gagnon and the McGuires are liable for the chainsaw accident. There is no evidence that Mast consulted or planned to consult any expert witness related to chainsaws, trees, or homeowner liability law before informing Dulberg he had no case against the McGuires. If he had done so and communicated with a person who shares the same clear and reasonable opinions as Dr Lanford, Mast could easily have realized that his later advice to Dulberg was very poorly thought out. It is written: "He does not allege in his Complaint whether the McGuires made a settlement offer, or whether Dulberg made a settlement demand. Did Mast forward a written settlement offer to Dulberg? Did he accept it and mail back an executed release? How was he pressured to settle? The written record clearly shows that the McGuires' attorney made a settlement offer. (evidence in Boudin folder "Release of William McGuire/Carolyn McGuire") The email record from November, 2013 to January, 2014 clearly shows that Dulberg was unhappy with the offer and couldn't understand how Mast could claim that the homeowners were not at least partially liable for the accident. (Evidence in files 2-180.pdf to 2-207.pdf in email folder). The email evidence clearly shows the details of how he was pressured to settle. Page 3, It is stated: "He also fails to explain why he would enter a high low agreement with the McGuires 21 months prior to a mediation with Gagnon." He never did. This claim was a mistake that should not have been included in the complaint. Page 4, top of page: It is stated, "Dulberg also continues to argue in pages 8 and 9 of his Response that he was unable to make an informed decision about accepting settlement because he was never informed "by his attorneys that a "high low" agreement would limit his recovery against the remaining defendants."" This is an incorrect claim that should not have appeared in the complaint. A high-low agreement was not part of the McGuire settlement. It was part of the binding arbitration agreement 2 years later. Page 4, It is written: "As discussed above, Dulberg has not and cannot allege in his complaint that Popovich or Mast had any involvement with any such "high low" agreement. Accordingly, his argument that they failed to inform him of the effects of the agreement, and how it could limit his recovery against the remaining defendants, is not well plead and amounts to a "red herring". In fact, in ^ 20 of his complaint, Dulberg sets forth the time frame of the execution of the "high low" agreement: "Following the execution of the mediation agreement with the "high low agreement" contained therein, and the final mediation award, Dulberg realized for the first time that the information MAST and POPOVICH had given Dulberg was false and misleading. .." Which is it? Is he claiming that the "high low" was executed in 2015 prior to Popovich's and Mast's withdrawal, or at mediation (almost 2 years later in 2017)? Obviously Popovich and Mast could not have counseled Dulberg regarding a "high low" agreement he apparently executed 21 months after their attomey-client relationship ended. The allegations concerning the "high low" agreement are not well plead and are dispositive ofDulberg's claims under section 2-615 and 735 ILCS 5/2-619 (a)(9)." The confusion as to when and by whom the high-low agreement was executed and very poor editing by Dulberg gave the defendants a very easy way to have the original complaint thrown out. They manage to use pretty weak arguments to dismiss the original complaint simply by taking advantage of this blunder. Page 5, It is written: "Again, Dulberg fails to describe how the settlement and dismissal of the McGuires was a mistake. But more importantly, he does not allege what happened in the 21 months after defendants were discharged as his counsel. Under Illinois law, he cannot simply bury his head in the sand. There was nothing preventing Dulberg from inquiring about the McGuires' liability from his successor counsel, also a personal injury attorney. If he felt pressured into settling with the McGuires, why did he not seek a second opinion at the time of the settlement?" It was a mistake because the expert witness who specializes in trees and chainsaws explicitly points out that the homeowners are partially responsible for the injury using very simple, logical and reasonable arguments. It was a mistake because Mast never sought this type of expert opinio. Because the Mast counsel directly contradicted the expert witness later contacted by Dulberg. Because most every lawyer with which Dulberg communicated afterward suggested that settling with the homeowners for such a low amount was a mistake. Dulberg did inquire about the McGuires' liability on his own and from his successor counsel. His successor council told him that they believe that settling with the McGuires was a mistake. It was the successor counsel that recommended contacting an attorney that works with malpractice cases. But Dulberg still couldn't have known whether the counsel of Mast and Popovich limited his final recovery until he could find out what the recovery would be. He found that out during the arbitration hearing, understood that the actions and advice of Mast and Popovich did indeed limit his recovery, and acted promptly. In conclusion: These notes show that the arguments in the original complaint are quite strong with the exception of a few incorrect statements that keep reoccurring throughout the documents. The defendants spotted these repeating mistakes and took advantage of them to have the original complaint dismissed. The actual counter-arguments of the defendants are not very good. They won a temporary victory simply by taking advantage of plaintiff mistakes, magnifying them, and turning them against us. The opposing side doesn't have strong counter-arguments and evidence exists within the written record to counter pretty much every one of their claims. Current problems for us: We must know our facts better. It is my opinion that if these notes are read carefully and each of these mistakes is understood, addressed and corrected, the amended complaint will be much, much harder to counter.