Is Failing to Sue All Possible Tortfeasors Legal Malpractice?

In many civil cases, there may be more than one tortfeasor or defendant. For instance, in a construction defect case, possible defendants may be the general contractor, a sub-contractor, the architect, or a supplier of defective materials that led to injury or other harm. In a car accident claim, multiple parties may have failed to stop in time and caused a chain collision, complicating the issue of which collision or negligent act was the cause of the claimant’s injuries. Where a corporation is involved, subsidiaries or other business entities may exist which may share in the alleged malfeasance.

Since a claimant is generally not in the best position or has the experience, education, and training to analyze liability or fault in a case, it is the duty and obligation of the claimant’s attorney to assess all possible defendants to obtain the most compensation available. 

Failure to consider other potential defendants can lead to a significant loss of additional compensation, especially if the overlooked party is a deep-pocket defendant or one who may owe at least some compensation to the claimant based on its degree or percentage of fault. This oversight could result in the seemingly primary or sole tortfeasor lacking the financial resources to cover the alleged damages. There is also the risk that the named defendant might not be liable or has minimal liability compared to other unnamed defendants, potentially leaving the claimant with a loss of significant compensation. 

Burden of Proof

In a legal malpractice claim, the victim or claimant must prove all elements of the claim. These are:

  • The defendant attorney owed a duty of care to the claimant
  • The attorney breached his duty of care
  • The breach or defendant’s negligence was the proximate cause of the claimant’s damages
  • The claimant suffered harm or incurred damages

Once the client retains an attorney, an attorney-client relationship is created where the attorney has a solemn duty to diligently advocate for his client and use the skills expected of a reasonably prudent and competent attorney practicing in the legal community. This duty includes fully investigating a claim to determine liability, seeing if there is comparative negligence, finding and evaluating possible defendants, determining the case’s value, and whether a defendant party is insured or has the resources to adequately compensate the claimant. 

An attorney who omits a tortfeasor in the case may have committed malpractice. However, a claimant must prove that the omission prevented the claimant from obtaining a judgment against a tortfeasor who has culpability and available resources. For instance, assume there were two campfires where the campers neglected to extinguish the fires before leaving. As a result, a nearby house was burned to the ground. The homeowner’s attorney sued one group of campers but neglected to sue the others, believing their negligence was not the cause of the fire. At trial, the evidence shows that the fire was caused by the unnamed campers, whom the attorney failed to include in the lawsuit. In this case, the attorney’s omission prevented the homeowners from obtaining a monetary judgment. 

A party claiming malpractice must also show that the alleged unnamed tortfeasor had resources that could be used to compensate the claimant. So, even if that party had some modicum of liability, its lack of financial resources or insolvency would mean the claimant would not prevail in its malpractice claim.

Retain a Legal Malpractice Attorney from Burns and Jain

Only a select group of attorneys with the requisite determination, skills, resources, and experience handle legal malpractice claims. These cases are often difficult to handle and involve investigating the attorney’s negligent conduct, the possible parties involved, and determining the validity of the underlying claim that is the basis for the malpractice allegation. Call a legal malpractice attorney from Burns and Jain at (617) 227-7423 for a free evaluation of your possible malpractice claim.

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