Deadlines are basic to nearly every practicing attorney, especially those involved in litigation. We have deadlines for filing claims in the appropriate court, serving the Complaint on the defendant, serving and responding to discovery requests, notifying depositions, filing and responding to motions, and adhering to court appearances and other court-scheduled matters when engaged in discovery. Failure to meet a deadline may sometimes constitute legal malpractice by the attorney if it adversely affected your valid claim.
Even if your attorney missed a deadline, it does not necessarily mean that she committed malpractice. Often, courts (or opposing counsel) will grant extensions or there may be an exception to the filing deadline where a court will extend the date. And for any claim of legal malpractice, you must show that the underlying claim was valid and that you were harmed or suffered financially.
Commonly Missed Deadlines
No attorney is perfect, and an attorney will inevitably miss a deadline during their legal career. Still, most are not be fatal to the client’s case, especially if the failure to meet the deadline or to appear in court was insignificant. In contrast, other failures may well result in a dismissal of the entire claim or lead to the introduction or omission of key evidence that undermined the claimant’s case.
Attorneys who are overwhelmed with cases with little to no assistance risk missing deadlines. An attorney who feels that her client’s case lacks merit or who has a dispute with the client may purposely miss a deadline that leads to dismissal without letting the client know the real reason for its dismissal and hoping the client will not make any inquiries.
Common deadlines that are missed include:
- Statute of Limitations—the most commonly missed deadline is the statute of limitations. You only have a specified time to file a lawsuit in the appropriate court. For example, in Massachusetts, you have 3-years to file a basic negligence (personal injury, auto accident) claim or your case may be permanently barred. If your claim is against a medical provider or a municipality, there are other deadlines of which your attorney needs to be aware. Unless there is an exception to the statute of limitations or your attorney can present a valid reason for missing the deadline, your case is usually barred.
- Will Contest—if you have doubts about the validity of a will, that the executor is abusing his fiduciary duty, or you suspect the testator was unduly influenced, you have a limited time to contest the will. Should your attorney have failed to inform you of the deadline, or he missed the filing date after having been retained, you could well have missed out on assets that you otherwise would have recovered if your challenge had been upheld. In this case, you should consult a legal malpractice attorney.
- Summary Judgment—it is common practice in many civil lawsuits where the claims may lack validity for one party to bring a summary judgment motion to either have all claims dismissed or to show that there are no material facts in dispute and that judgment should be awarded to the plaintiff on some of the claims. If such a motion is filed against you, your attorney must timely respond. If he does not, and you had a likelihood of winning, and the case is dismissed, you may have a legal malpractice claim.
- Other Motions—in litigation, lawyers file motions to have certain testimony or other evidence excluded for various reasons. Courts impose deadlines for these motions and for the opposing party to respond. If your attorney missed the deadline, she could ask for an extension that may be granted. If not, your case could be jeopardized by the exclusion of favorable evidence that would have altered the outcome.
Burden of Proof
If you suspect that your attorney missed a deadline that led to the dismissal of your claim or seriously jeopardized it and caused you damages, you should consult with a legal malpractice attorney. However, not all missed deadlines rise to the level of legal malpractice. Like any other claim, you have the burden of proving that your attorney committed negligence and that you suffered damages as a result.
For example, though your car accident claim was not timely filed in court, you still must demonstrate that it was a valid claim. This often requires that your legal malpractice attorney try the underlying claim, a process referred to as the case-within-a-case. Your attorney must prove that the opposing party had a duty to you to exercise ordinary care, that the defendant failed to exercise that level of care, and that the defendant’s negligent conduct was the cause of your damages You must also show or prove that you suffered damages, such as medical expenses, lost wages, and pain and suffering. So, if your claim was valid and testimony shows that your attorney’s handling of your case fell below the accepted standard of care and competence, then you should be awarded damages.
In another example, if the alleged negligence were a failure to respond to a motion to exclude evidence, your attorney must show that your claim would have been successful and resulted in a favorable outcome for you if your attorney had presented a competent response that likely would have prevailed.
What to Do
If your attorney missed a certain deadline that you suspect was fatal to your claim or resulted in an adverse outcome that should not have occurred, then promptly take the following steps:
- Gather all documentation about your claim and include all correspondence and phone records, including emails and text messages with your attorney or the office assistants.
- Seek an opinion from an experienced legal malpractice attorney. Not all missed deadlines may be legal malpractice but only a seasoned attorney who handles such matters can adequately advise you.
- File a legal malpractice claim if your new attorney opines that the failure to file on time did cause you serious consequences that should not have occurred if it was timely filed.
- Attempt negotiation—in matters where you have a strong argument that your attorney’s failure to file on time was malpractice, your legal malpractice attorney can often negotiate a settlement with the negligent attorney or his legal malpractice carrier.
Retain a Legal Malpractice Attorney from Burns and Jain
It is not uncommon for attorneys to miss important deadlines, and such conduct should be scrutinized. Should you find out or suspect that your attorney missed a deadline that led to the dismissal of your valid claim or to a result that should not occurred if there had been a timely response, then call the office of Burns and Jain at (617) 227-7423 for a consultation about your possible legal malpractice claim.