26. Identify and describe the false and misleading information Mast and Popovich provided to you, and explain how you realized for the first time in December of 2016 that the information was false and misleading and the dismissal of the McGuires was a serious and substantial mistake, as alleged in paragraph 56 of your second amended complaint 

Original Answer:

Mast told Dulberg that Illinois law does not permit a recovery against the McGuires in the circumstances of Dulberg’s case and that Dulberg would not receive any recovery from the McGuires. Mast told Dulberg that the judge would rule in favor of the McGuires on a motion for summary judgment.
Mast further told Dulberg that Dulberg would retain his claim against Gagnon and be able to seek and receive a full recovery from Gagnon.

Supplemental Answer:

Identify and describe the false and misleading information Mast and Popovich provided to you

Short Answer:
Read the Emails and any other communications dated between October 22, 2013 and April, 14, 2014 between Mast and Dulberg, Mast and Barch. 

Described and identified below are a few examples:

A. OCTOBER 22, 2013:   
Mast makes settlement offer of $7,500 to McGuires through their attorney Barch claiming Dulberg discussed it with him and agreed.  
(POP 000192)

B. OCTOBER 30, 2013:  
Mast in an email to Dulberg first expresses doubt about Dulberg's case against Gagnon 
(Dulberg 001531, Dulberg 001533, Dulberg 001534, Dulberg 001535, Dulberg 001536) (POP 000195)

C. NOVEMBER 4, 2013:  
Mast requests a meeting with Dulberg.  Dulberg brings Barbara, his mother, to the meeting.  Neither Dulberg nor Barbara know what the meeting will be about.  It is at this meeting that Dulberg is first informed by Mast that Mast believes Dulberg has no case against the McGuires.  Mast makes a number of statements which surprise Barbara.  He claims that juries in this area are very conservative and Dulberg can't win against an old lady.  Dulberg disagrees.  It is at this meeting when Dulberg first gives Mast permission look into a possible settlement.
(Dulberg 001531)
(witness: Barbara Dulberg, Paul Dulberg)

D. NOVEMBER 18, 2013:  
McGuire's attorney Ronald Barch contacts Mast.  He claims he has been given authority to make an offer for $5,000.   
(POP 000181, POP 000181, POP 001204)

Dulberg is informed by Mast in an email.  Mast wrote:

"In addition, the McGuire's atty has offered us (you) $5,000 in full settlement of the claim against the McGuires only. As we discussed, they have no liability in the case for what Dave did as property owners. So they will likely get out of the case on a motion at some point, so my suggestion is to take the $5,000 now. " 
(Dulberg 001515)


Dulberg answers:

"Only 5, That's not much at all.

Is this a take it or leave it or do we have any other options?

...

I'm not happy with the offer."



To which Mast replies:  

"Paul whether you like it or not they don't have a legal liability for your injury because they were not directing the work. So if we do not accept their 5000 they will simply file a motion and get out of the case for free. That's the only other option is letting them file motion getting out of the case."  
(Dulberg 001519)


Dulberg replies:  

"I still don't get how they don't feel responsible for work done on their property by their own son that ended up cutting through 40% of my arm.  Perhaps their negligence is the fact that they didn't supervise the work close enough but they did oversee much of the days activity with David. Just because Dave was doing the work doesn't mean they were not trying to tell their kid what to do. They told him plenty of times throughout the day what to do. How is that not supervising?"



To which Mast comments:  

"Cause they had no say on how Dave did the work. That is what the evidence from all shows."  
(Dulberg 001519)



Dulberg later replies:  

"That's their personal issues of control with their own son. I will testify all day long about the things they wanted him to do that he did do throughout the day.


By claiming they had no control over the work dave did after all the preparation, money and time spent out in the yard yelling at him that they wanted certain things done in a particular way I don't see how they get out of the direct over site of the project because now that there is an injury they don't feel they had any real direct control over their own workers actions?

This is ridiculous.

Hans, they have to do better than claim they had no control over David that day. If that's the case why were they there watching the work most of the day? Even Bill had hands on doing some of the work and rarely let David go to long without checking and seeing if things were being done the way Carol and Him wanted it."

Dulberg 001516, Dulberg 001520, Dulberg 001522, Dulberg 001523, Dulberg 001524, Dulberg 001525


E. NOVEMBER 19, 2013:
Dulberg wrote to Mast:

"Hans,

A while back you told me that the jury's here in this county are primarily conservative and that they know the only reason we are before them is for money.

Not sure if that statement was meant to scare me or not but I do agree, they are, for the most part conservative and I would hope we should make it known we want money for damages, lawyers fees and the medical bills, etc... loud and clear.

We should also make it known to the jury that the parties or their insurance companies have never even offered to pay 1 cent for any of the medical damage and that's why we seek the juries help in settling this dispute. Perhaps if the insurance companies would have paid for these basic things none of us would even be here. but they didn't and now yes after years of waiting I am seeking money to pay for the medical treatments, you as the lawyer and finally myself as I'm the one who has had to suffer the consequences of the Gagnon/McGuire choices on that day.

I cannot believe that a conservative jury isn't going to award anything less than the cost of the medical damages and lawyer fees from them unless something catastrophic changes. I do see them being conservative as to what I will end up with at the end but not the real medical and lawyers bills. Even the conservative juries in this county are not so conservative that they won't give the base bills.

The McGuires insurance is free to go after David for damages if they lose.

Other than fearing a motion to dismiss the suit against the McGuire's insurance based on some false concept that because they didn't have their finger directly on the chainsaw trigger they hold no responsibility for damages.


what are the real benefits of letting them off so easy?

And I don't want to hear its because 2 parties vs 1 is much easier.

Letting off the McGuires insurance for such a small amount is anything but reasonable and I just can't see any ethical judge in this county not keeping them in the suit all the way for a jury to decide whether they had any part to play in the days events and the level of responsibility they share with David for the consequences considering it was the McGuires project, their land, their choice of who did the labor etc. etc...

When you advised me to seek a settlement with the McGuires insurance, I agreed to look at it only because they didn't have their hands directly on the trigger of the chainsaw and That you would get at the least the medical bills paid for out of it. I thought that was made clear in your office.

I know you work on approximately 33%. Is 33% of 5,000 even worth the time and money you already invested? It's only $1650 for you and I'm sure your hourly fee eats that up rather quickly, I know mine did back when I had hands and arms that worked so I could charge."   
(Dulberg 001517, Dulberg 001518)


F. NOVEMBER 20, 2013:
Mast sends an email to Dulberg:

"Paul, lets meet again to discuss. The legality of it all is that a property owner does not have legal liability for a worker (whether friend, son or otherwise) who does the work on his time, using his own independent skills. Here, I deposed the McGuires, and they had nothing to do with how Dave did the work other than to request the work to be done. They had no control on how Dave wielded the chain saw and cut you. its that simple. We don't have to accept the $5,000, but if we do not, the McGuires will get out for FREE on a motion. So that's the situation."  

Dulberg replies:

"Ok we can meet. I will call Sheila today and set up a time. Please send me a link to the current Illinois statute citing that the property owner is not liable for work done on their property resulting in injury to a neighbor. I need to read it myself and any links to recent case law in this area would be helpful"
(Dulberg 001515, Dulberg 001516)

Dulberg agrees to have another meeting with Mast in his office. 
(memo of meeting: POP 000003)

Dulberg brings his brother Thomas Kost with him.  Before the meeting Dulberg asks Mast to show examples of case laws which demonstrate that McGuires are not partially responsible for the chainsaw accident.  
(Dulberg 001515, Dulberg 001516)
(Witness Thomas Kost)

In the meeting Mast uses the example of Tilschner vs Spangler.  He claims that the McGuires are not responsible because Restatement of Torts 318 is not applicable in Illinois.  

He also claims that the accident was not forseeable by the McGuires and they had no control over Gagnon's actions.  

Mast also gave Dulberg a packet of other examples of case law.  
(dDulberg 000204 through Dulberg 000225 and Dulberg 000301 through Dulberg 000305)

Thomas Kost kept a rough set of notes during the meeting. (Dulberg 001217)

Mast claims that if Dulberg doesn't accept the $5,000 the McGuires will simply file a motion to get out of the case for free.  

Mast said the McGuires do not have to offer anything and are offering $5,000 to be nice.

Dulberg asked to read the depositions of the McGuires and of Gagnon before making a decision.


Mast writes a Memo to a person named "Jen" 
"We have a co-defendant that is not really responsible in this case and they have offered a nominal settlement of $5,000 in the case. I would like to accept it but I want to have a settlement memo prepared first to show how the money will be disbursed for the client to sign. Therefore, we will not need to call on the balances but we will only need to provide a settlement memo containing only any liens listed on the settlement memo.
Can you please prepare the settlement memo for me as soon as possible so that I can talk to the client about the offer."
(POP 001207) 

After the meeting, on the same day, Dulberg goes to the house of a neighbor of the McGuires to ask if they witnessed what was happening on the property the day of the accident.  He was looking for a witness that saw the McGuires actively participating in the work being done and supervising the work. (POP 000177)(Dulberg 001514)

Later that evening Dulberg writes to Mast:

"Hans,

I'd like to read David's dep before accepting the McGuire offer. Even after reading the McGuire deps and seeing how things easily get skewed in all honesty, I can't blame Carol or Bill for Dave's actions I just thought I was covered under their insurance. I know Carol & Bill thought I was covered as well irregardless of all the
half truths in their dep."  
(Dulberg 001512)


G. NOVEMBER 21, 2013:  
Mast orders Dulberg's deposition 
(POP 000593)

H. DECEMBER 2, 2013:  
Mast sends Dulberg's own deposition to him by mistake 
(POP 000176).

I. DECEMBER 4, 2013:  
Dulberg receives his own deposition in the mail.  Dulberg again informs Mast he wants to see Gagnon's deposition.  
(Dulberg 001504)

Dulberg writes to Mast:

"Hans,

I wanted to review David Gagnons dep before letting the McGuires off the hook.

And that word "foreseeable" in the McGuire suite... 
Well I suppose if I gave anyone a chainsaw and told them to use it, given enough time, an injury is foreseeable, very foreseeable just not hoped for.

And the comment about people not liking friends who sue friends, um well we all should know other than entirely random acts such
as auto accidents, train derailments, air plane accidents, etc. Etc.. That most of the time it's those we know who hurt us most often
than not. and if it's serious we must be able to sue even if it is or once was a friend."  
(Dulberg 001504)

J. DECEMBER 9, 2013:  
Mast orders Gagnon's deposition 
(POP 000594)

K. DECEMBER 10, 2013:  
Mast sends Gagnon's deposition to Dulberg 
(POP 000175)

L. DECEMBER 18, 2013:
Dulberg writes to Mast after reading Gagnon's deposition:

"Hans,

I read through David's dep. it's mostly lies with a few truths. Where should I begin or better yet where would you like me to begin? Almost everything he said was made up, from which end of the branch I was holding, at who's direction I was doing it under and even as to why I was even there on the McGuires property, etc...
Not to mention the nonsense of $10,000.

...

As far as the McGuires are concerned give me a call."  
(Dulberg 001500)

Later that evening Dulberg has a long talk with Mast by phone.

Mast writes the following memo after the call:

"On December 18, 2013, I called Paul today after and email and we had a long discussion about the McGuire's liability and he seemed to concede and understand that probably based on the testimony there is nothing we can prove against the McGuire's and he is willing to take their $5,000 settlement offer."  
(POP 000884)

M. DECEMBER 26, 2013:  
Mast contacts McGuire's attorney Barch to inform him that they will accept the $5,000 offer. 
(POP 000670)

N. JANUARY 22, 2014:  
Judge Meyer approves a motion by McGuires for a good-faith settlement. 
(POP 000988, POP 000989)

O. JANUARY 31, 2014:  
Final release papers are signed by Dulberg and in the mail. 
(Dulberg 001491)

P. APRIL, 14, 2014:  
Mast informs Dulberg that he does not wish to take the Gagnon case to trial.

For the first time Mast recommends to Dulberg that he look for alternative counsel that wishes to pursue the matter. 
(Dulberg 001484)



explain how you realized for the first time in December of 2016 that the information was false and misleading and the dismissal of the McGuires was a serious and substantial mistake

The realization happened in December of 2016 after a series of events. Here are the main points.

1. February, 2016:
The expert, Dr Lanford's findings state:
"Mr. and Mrs. McGuire who owned the saw apparently did not heed the warnings posted on page 2 of the owners manual which states “Allow persons only who understand this manual to operate your chainsaw.”"

In Conclusion Dr Lanford wrote:
"After the review of the above evidence, it is my opinion that Mr. Gagnon was fully responsible for this accident and his parents - the McGuires -were also somewhat responsible by letting their son, Mr. Gagnon, use their chainsaw - a potentially dangerous tool - without enforcing the warnings and instructions available in the owner's manual. Mr. Gagnon was in full control of the saw and Mr. Dulberg was his assistant. Mr. Gagnon could have prevented this accident by following the instructions given in the owner's manual. The instructions in the owner's manual are quite clear and unambiguous, and if followed, would have prevented this accident. Mr. Gagnon admits that he was relatively inexperienced in the use of chainsaws, and therefore, should have been more careful while using such a potentially dangerous tool."
(Dulberg 001218, Dulberg 001219, Dulberg 001220)
(Dulberg 000235 - Exhibit No. 2 of McGuire deposition Chainsaw Manual)
(POP 000412)

2. December of 2016:
The ADR mediation award was more than could be collected from Gagnon alone. 
(Dulberg 001308)

This is true even without the High-Low agreement for ADR Mediation. 

Dulberg's Attorneys at the time, Randy and Kelly Baudin, had already done an asset check on Gagnon prior to the Hi-Low ADR mediation agreement. 
Gagnon could not have covered the full amount of the mediation award.

3. December 2016
Dulberg met with a professional Malpractice Attorney Thomas Gooch. Thomas Gooch advised Dulberg that he had a viable legal malpractice claim against Dulberg’s prior counsel, Hans Mast and The Law Office of Thomas J. Popovich, P.C., as outlined in Dulberg’s complaint and agreed to file a case on Dulberg’s behalf.

At this point, Dulberg fully realized that he had a viable malpractice case against Hans Mast and The Law Office of Thomas J. Popovich, P.C.