Articles Posted in Legal Malpractice

Legal malpractice trials, which have always been kind of weird, just got weirder. In a case of first impression, the New York Court of Appeals in Grace v. Law recently held that the failure of a plaintiff to appeal an underlying adverse ruling does not bar a subsequent legal malpractice claim, unless the attorney-defendant can prove that plaintiff would have been “likely to succeed” in his appeal.

Say what? What does all this mean?

Let’s say your lawyer messed up your New York personal injury trial. He forgot to call a key witness. The jury found against you. You sue him. His defense? “Hey, maybe I should have called that witness, but if you had only appealed the trial result to the appellate court, maybe you would have won. We’ll never know because you never appealed. Therefore I win because you can’t prove the appellate court wouldn’t have given you a victory.”

When a client brings a potential New York legal malpractice case to me, one of the first things I do is try to calculate the statute of limitations (the last day the lawyer can be sued). I say try because this is not always easy in legal malpractice cases. And that’s what I am going to blog about today.

Here’s the easy part: The statute of limitations is always three years. Here’s the hard part: When does the three-year period start running? The legalese answer is, “when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court” (Ackerman v. Price Waterhouse, 84 N.Y. 2d 535). But what does that mean? In most cases, it is the day the lawyer made the mistake (committed malpractice), but not always. Some of the cases say that the damages due to the malpractice need to be “sufficiently calculable” for the clock to start running. But “sufficiently calculable” is not always black and white. There are grey areas. That’s why we don’t always know what a court will find to be the “accrual date” (start date) for the three-year period.

Does it matter when the client found out about the malpractice? Example: A client consults a lawyer about what he thinks is a great lawsuit, but the lawyer tells him (wrongly) that he has no case. More than three years later the client consults another attorney who says, “gee, that was a great case, but your statute of limitations on it expired about a month after you saw that first attorney. That first attorney should have filed suit for you and you would have gotten a million-dollar recovery!” Does the three-year statute of limitations bar the client from suing the first lawyer, even though the client did not know he had been malrpracticed until after the three-year period had run?

We have brought many New York legal malpractice lawsuits against other New York personal injury lawyers. In fact, we are one of the few firms in our area willing to sue other lawyers for malpractice. Our experience has taught us a few things. One thing we have learned is how a client can suspect that his lawyer has committed legal malpractice in his personal injury or medical malpractice case even when the lawyer won’t tell the client. How? Read on.

Phone rings. Secretary tells me a potential client is on the phone with a personal injury case and he wants to “switch lawyers”. I take the call. The potential client says, “my lawyer at first told me that I had a great personal injury case, that I had a lot of money coming to me, but now all of a sudden he tells me the case is not worth pursuing. He is trying to talk me into dropping the case. But I don’t want to drop it. Can you represent me?”

Wooo! When I hear this, red flashing lights go off in my head. The first question I ask is, “WHEN did your accident happen?” If the answer is, “just over three years ago”, I say to myself, “bingo”.