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Is it Legal Malpractice To Fail To File An Appeal On Time?

In a case that came down from the Massachusetts Appeals Court this week (July 31, 2019), it was held that “garden variety oversight” by defense counsel was not grounds to allow additional time to file an appeal.

In the case, Edward R. Pierce v. Hansen Engineering and Machinery, 18—1355, Massachusetts Appeals Court (2019), the plaintiff, Mr. Pierce was injured on the job.  He alleged that the he was maneuvering a pallet jack from a truck onto a loading dock, with 800 pounds of freight on it, over a dock plate (which lies between a truck and the loading dock) and that the dock plate was defective causing him to fall, necessitating hip surgery and that he is unable to return to work.

His attorney presented evidence, through an expert, that the dock plate was not kept in good working order and that the defendant was negligent because they failed to maintain it properly – in fact, they only repaired it after prior reports of malfunction rather than per the instruction manual.  Mr. Pierce testified that he was informed by one of the defendant’s employees that there had been problems with the dock plate “for some time.”  The jury believed him and after a jury trial in December 2017, Mr. Pierce won.

The deadline for filing a notice of appeal was March 14, 2018.  However, the defendants filed a request for an extension to file an appeal late – on March 22, 2018.  While that was granted by the trial court, Mr. Pierce filed an appeal of the court’s extended deadline.  Nevertheless, the two different defense law firms (trial counsel and appeal counsel) each thought the other would file the appeal.  In the meantime, appeal counsel was in Thailand, according to the affidavit he filed with the Court.  They failed to communicate with each other.  This is “garden variety oversight” and “insufficient to warrant a finding of excusable neglect,” the Court held.  The Appeals Court decision referred to a prior case in which they held that “excusable neglect…is meant to take care of emergency situations only,” or situations that “unique or extraordinary” and not simple miscommunications between counsel.  In this case, there was texting back and forth between trial counsel and appeal counsel, so the Court was not convinced of anything extraordinary or of an emergency nature.

Are There Damages in This Legal Malpractice Case?

There likely was malpractice here – the attorneys failed to file the appeal as instructed by their client.  However, winning the first step, negligence, is not winning a legal malpractice case.  They need to prove damages.  To prove damages now, the defendants would have to file a legal malpractice lawsuit against their attorneys and show that, more likely than not, they would have won the appeal.  We have not reviewed the case, or the trial work of counsel, but appeals are hard to win and the technical grounds the defendants planned to appeal are, in fact, technical –involving the trial court failing to give jury instructions for “comparative negligence”.

Thus, even though the defendants in the underlying case could have a valid and winnable legal malpractice case against their counsel, there would have to be sufficient proof that they would have won the appeal and then won a trial.  And that’s a lot to prove!

Burns & Jain is a Legal Malpractice Trial Law Firm

Attorney Neil Burns and Attorney Roshan Jain are effective advocates for their legal malpractice clients.  They have won trials, successfully defended summary judgment motions by malpractice insurance defense counsel and resolved hundreds of cases on behalf of legal malpractice victims.  Call for a free consultation.  617-227-7423