Why Did They Do It?
By Bruce Stanger
Even though I have investigated many claims of malpractice by other lawyers I am always surprised when a lawyer who we are investigating takes our inquiries so personally that they get irrational. While under investigation, they are obligated to give us their clients’ file yet they will often refuse and say: “it’s not fair,” or “you can’t do that to me.” I feel like saying “Chill – who hasn’t made a mistake?” Or in my lighter moments “Can’t you take a joke?” Well I don’t say either – I simply insist, and if they refuse to give over the file we threaten to file a grievance or we ask them to please call their insurance carrier, and they will tell them to give us the file.
In the vast majority of the cases their error was one of ignorance or lack of attention.
A Case of Ignorance
Too many lawyers – especially in tough economic times – try to work in an area that is out of their primary area of expertise. The prime example is the trust and estate lawyer who normally does wills. In a time when an estate lawyer I know was struggling, and not getting enough “estate” business, one of her clients was in an auto accident. This is a very different area of work, but the trust and estate lawyer did some research to see how she could help. She wrote down the wrong statute of limitations and did not sue the person in time. We got the case, sued the lawyer on behalf of her client and her insurance carrier paid.
In another situation, our client was injured by a product in a store when the item fell on him and caused a nasty injury. Usually, the statute of limitations for injuries is 2 years. The first lawyer held the case for more than two years; realizing that he had made an error he called in the client and told him he had blown the statute of limitations. The lawyer did the right thing and gave the client my name. The client came in, I immediately realized that the lawyer was wrong and there was still time. Fortunately, this was not a typical negligence case, and since it was a products liability case, the statute of limitations was longer, so the client still had time. I called the lawyer (with the permission of our client) and told him he had not blown the statute of limitations after all. I offered to send him the client back, but he was so relieved he told me to keep the case and we recovered a fair sum for our client.
Bottom line is that all too often a lawyer who should stay within their area of experience branches out thinking there is money to be made, when they should have referred the client to someone else.
Lack of Attention
A good deal of work goes into a case if a lawyer is going to adequately represent his or her client. When there is a lack of attention to those details, a case can blow up. We have sued lawyers for not realizing there are inconsistent statements in a contract, for failing to diligently pursue information by way of depositions or otherwise, or for simply forgetting to pursue a line of inquiry. With a good diary system, competent assistants and associates, a reasonable workload and simple attention to details, all of these cases could and should have been avoided.
Why is There Malpractice?
Rarely is it malice. Generally it is due to a lack of diligence, or it happens when a lawyer takes on something they should not have taken on without going the extra distance to make sure they knew exactly what they were getting into.
If the lawyer is asleep at the switch he or she is responsible for damages to the client. We get those damages for their former client who has become our client. There was a time when lawyers would not bring claims against other lawyers. Times have changed. If you believe your attorney has committed malpractice, we are here to help.
Bruce Stanger is a principal in the West Hartford law firm of StangerLaw LLC. If you have any questions he can be reached at email@example.com or 860-561-0651.