We lawyers at Michaels & Smolak have been around the block a few times. Collectively the four of us have clocked in over 100 years of experience as New York personal injury lawyers. But even after all those years, we’ve never been sued — not even once — for legal malpractice. Not that it couldn’t happen; anyone can make a mistake. Maybe we’ve just been lucky. But we do believe we have excellent systems in place to avoid committing malpractice.
Many of our peers have not been so lucky or so organized. We often read cases where our brethren NY personal injury lawyers have been successfully sued for legal malpractice. We also sue some of those lawyers for legal malpractice on behalf of their (ex-)clients. Based on all this experience, we believe we have inventoried the most common errors NY personal injury lawyers make. Fellow New York personal injury lawyers, take note:
1. Failing to file a claim within the limitation period. We call this “blowing the SOL” (statute of limitations). This is by far the most common form of legal malpractice committed by New York personal injury attorneys. If you fail to timely file the claim, it is malpractice as a matter of law. The client will get an automatic judgment against you on negligence (though he or she will still have to prove causation, i.e., that the claim would have been successful if timely filed.) Why is this missing the SOL so common? It should not be. The very first thing a lawyer should do when he takes in a new case is diary, in several places, including in a computer tickler system, the time limitations for filing suit. One reason some lawyers miss the SOL is that they do not properly diary it in several places (computer, paralegal diary, etc.). In our office the lawyers meet twice a month to make sure we have diaried all new cases correctly, in all the right places. We also systematically review each case when there is one-year left on the SOL, and again when there is only six-months remaining on the SOL. Another cause of missing a filing deadline is when the lawyer diaries the wrong statute of limitations, either because he miscalculated or misunderstood the statute of limitations. This is an easy mistake for the inexperience personal injury lawyer to make because, while the SOL for negligence claims is generally is 3 years in New York, it can be as short as one year (for suing a sheriff), or a year and 90 days (for suing a municipality) or two years (for wrongful death claims). Some lawyers just assume the SOL is 3 years without carefully considering or researching the multiple variations that are possible. You either have to know this stuff by heart (as we do) or look it up!