Sanctions: Allied Concrete attorneys want $900K in legal fees

The tragic day in 2007 when an Allied Concrete mixer crossed paths on Route 53 with the car of a young married couple, it took more than 25-year-old Jessica Scott Lester's life. Today her widower faces sanctions and possible perjury charges, and the career of the well-respected attorney who represented him has ended in shambles.

"Don't worry about sanctions," attorney Matt Murray wrote in an email to his client, Isaiah Lester, which was read in opening and closing statements by opposing counsel. "If we get sanctioned, after the trial, you'll have plenty of money to pay it."

After any elation and vindication Jessica Lester's husband and parents may have felt with the record $10.6 million wrongful-death verdict in December 2010, nearly a year later, the case has turned sharply.

A judge sliced Isaiah Lester's $8.58 million award almost in half and ordered monetary sanctions against Lester and Murray for spoliation of evidence during the trial, an amount the attorneys representing Allied Concrete's insurance company put at over $900,000.

Amid the dozen or so lawyers at the sanctions hearing September 23 in Charlottesville Circuit Court, one was noticably missing: Murray himself, former managing partner for Allen and Allen, the largest personal injury law firm in Virginia. Murray resigned from the firm July 6 and says he's retired from practicing law.

During the hearing to determine just how much Murray and Lester would have to pay– and whether Allen and Allen could escape liability for the $909,485.21 Allied Concrete's attorneys say the destroyed or withheld evidence cost the company's insurer in legal fees– Judge Edward Hogshire referred repeatedly to the "degree of deception" in the case.

"Nothing could be trusted," said Hogshire. "The process broke down because of the dishonesty."

According to a September 1 order from Judge Hogshire, the spoliation began in March 25, 2009, when Murray received a discovery request for the contents of Lester's Facebook account. Attached was a photo of Lester wearing a "I [heart] hot moms" t-shirt, and holding a beer can with other young adults.

Murray instructed a paralegal to tell Lester to "clean up" his Facebook page because, "we don't want blowups of this stuff at trial," the assistant, Marlina Smith, said in a deposition. She emailed that message to Lester the next day.

On March 26, 2009, according to the judge's order, Murray came up with a scheme to take down or deactiviate Lester's Facebook account so that he could respond that he had no Facebook page on the date the discovery request was signed.

When defense attorneys filed a motion to compel, Murray instructed Lester to reactivate the account. But in a December 16, 2009, deposition, Lester denied deactivating the account.

Murray is also accused of withholding the email from Smith instructing Lester to clean up his Facebook page when he was ordered to produce it shortly before the trial began. Murray falsely claimed after the trial that the omission was the paralegal's mistake, according to the court order.

At the sanctions hearing, attorneys for Lester and Murray complained that they'd received a huge pile of documents one day before the hearing, and that the fees that Allied Concrete's attorneys– from the D.C.-based powerhouse Patton Boggs– demanded included matters the judge had denied, such as the allegation of juror misconduct.

On that, Hogshire ruled that although Allen and Allen had given money to Meals on Wheels, which employed juror Mandy Hoy, it had not been proved that she had significant involvement with the firm or Murray.

Patton Boggs attorney Ben Chew called witnesses to support the $900K legal fee sanctions bill, and the court learned that McGuire Woods' Charlottesville-based insurance attorney J. Brian Jackson bills $475 an hour on high-exposure commercial liability cases.

Murray's attorney, Tom Williamson, brought in his own high-exposure insurance case attorney from Richmond, Gary Kalbaugh, who bills at a more modest $185 an hour. Kalbaugh testified that a Patton Boggs bill for $460,000 contained a couple of "red flag" items. "It's the largest legal bill I've ever seen," said Kalbaugh.

He calculated that the 1,455 hours billed is the equivalent of one lawyer working over eight months. "It seemed extreme," Kalbaugh says.

Attorney Chew contended that the bill, which covered attorney hours from March 2009 to December 2010, included only fees that were the result of spoliation, which the judge has ruled are sanctionable.

Over on the Lester side of the court, his and Murray's attorneys urged the judge to let Lester off the hook.

"An argument could be made that Mr. Murray alone should be responsible," said Murray's own lawyer Williamson.

Indeed, as Lester's new attorney, Malcolm McConnell, pointed out, "Some things Mr. Lester did were what his lawyer told him to do."

Allen and Allen had its own lawyer, who suggested that Murray went rogue, and the law firm shouldn't be held responsible for his actions.

"Everything Murray did was in the scope of his job," Chew rejoined.

Judge Hogshire, apparently weary of the case that has dragged on for years, has given the plaintiffs' attorneys 10 days to file their objections to the Patton Boggs bills. "This will be the final order in this case," he warned.

At least until the appeals...