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!
2. Failing to sue all the correct parties. Let’s say you correctly and timely filed the claim. The three year SOL then goes by while you are in suit. You then discover that there are OTHER parties who should have been sued, and/or that the parties you actually sued were the wrong parties. Too late! You have again blown the SOL, but this time not because you diaried the SOL wrong, or miscalculated it, but because you did not carefully investigate who the responsible parties were. One way of avoiding this problem is to always sue the case out with at least 6 months left on the statute of limitations, and make sure you get your depositions done before the SOL expires. That way if, at depositions of the parties you did sue, you can learn of other possible responsible parties, you have time to add them to the suit! At Michaels & Smolak, we make every effort to sue a case at least six months before the SOL expires.
3. Failure to investigate all possible sources of insurance coverage. You may have sued all the right parties, and sued them on time. Congratulations! Then you settled the case based on what you believed were the “policy limits”, i.e., the maximum payment amount in all applicable insurance policies. Again, congratulations! But if you failed to properly investigate all possible insurance coverages, and there was more available, you have committed malpractice. Inexperienced personal injury lawyers often make this error, especially in car accident cases. They don’t realize that there is often “hidden” insurance, called “supplemental underinsured motorist” coverage, in their clients’ own auto insurance policy. That’s just one example. The experienced personal injury lawyer knows how to ferret out all the applicable insurance policies!
4. Failure to timely prosecute the claim. If you are a New York personal injury lawyer, you have a duty not only to timely file the claim, but to timely “prosecute” the claim– meaning follow through on the claim once it is filed. If you drag your feet too long, the defense can serve you with a “90-day demand” to prosecute (CPLR 3216). If you let then the 90 days go by without engaging in further prosecution of the action, your client’s claim can be dismissed. The same thing can happen if you repeatedly fail to show up for court-ordered conferences or any court-mandated appearances. For example, in Barnave v. Davis, 108 A.D. 3d 582 (2d Dept. 2013), an attorney failed to show up at a compliance conference, and this lapse led to the dismissal of the action.
5. Failure do meet other deadlines. Filing the claim within the SOL is not the only time-sensitive action you must take. In most cases – especially when you are suing a governmental entity or when you are in federal court – other deadlines loom, which, if missed, could lead to serious negative consequences for your client’s case, and thus to a future legal malpractice lawsuit against you. By way of example only: failure to provide your expert disclosure in time (your expert may be precluded from testifying); or failure to file your “certificate of merit” on time in medical malpractice claims; or when suing a municipality, failure to serve a notice of claim within 90 days.
6. Failure to sue under all viable legal theories. If you don’t handle a lot of personal injury cases, you might not fully comprehend the array of liability theories available. For example, if a construction worker falls from a ladder on a construction site, some inexperienced New York personal injury lawyers might sue the case out only on a negligence theory of liability. But under a peculiar New York State law (Labor Law section 240), such a construction worker may have a claim not only in negligence, but also in “strict liability” against the general contractor and owner of the site for his fall from the ladder. If the personal injury lawyer fails to sue under that legal theory, and that theory of liability would have won the case, then the client can sue his lawyer for legal malpractice.
7. Communication Errors. A lawyer is required to communicate all important developments in the case to his client, and especially settlement offers. If he does not communicate a settlement offer, and then loses the case, and the client later finds out there was a settlement offer, he or she is likely to sue the lawyer. To win the legal malpractice case, the client has to prove not only that the lawyer failed to communicate the settlement offer, but also that the client would have accepted the offer. Of course the dissatisfied client who sues her lawyer will say she would have taken the offer and will likely win. See, Englert v. Schaffer, 96 A.D. 3d 499 (4th Dept. 2012). Always communicate settlement offers to the client, and document that you have done so!
8. Failure to properly research the law. This is obvious. There are a thousand ways a lawyer can fail to property research the law. This can lead to the lawyer agreeing to unfavorable jury charges, or failing to object to improper evidence being admitted, or allowing his opponent to raise improper defenses, among many other things, all of which can cause a good case to crash and burn. When that happens, like a phoenix, another case arises from the ashes: The case against you, the lawyer who destroyed the original case!
9. Failure to properly protect and advance client’s rights at trial. Most strategic decisions lawyer makes at trial are protected from legal malpractice suits if the lawyer can show that they were judgment calls. There are thousands of judgment “calls” a lawyer must make during the frenzy of trial, sometimes on the spur of the moment, including what questions to ask in cross-examination, what witnesses to call or not call, how to make the closing argument, etc. Trial is a battle ground. Do I attack here or there? Should I emphasis this or that? Try second guessing a general during an invasion. Hind sight is 20/20, but the law recognizes that attorneys have discretion in battle. Once in a while, though, the lawyer makes such a terrible decision or error at trial that it can be the grounds for a legal malpractice case. An experienced personal injury trial lawyer is unlikely to make such a mistake.
Email me at: firstname.lastname@example.org I’d love to hear from you!
Michael G. Bersani, Esq.