Lawyers: no harm in botching suit since it had no merit anyway

“A New York judge has permitted a legal malpractice suit to proceed against a group of personal injury lawyers who tried to argue that the medical malpractice suit they allegedly botched had no merit in the first place.” Morelli Ratner (of Benedict Morelli fame) and Schapiro & Reich had filed a suit on behalf of Victoria Kremen alleging failure to diagnose cancer. The suit was thrown out on statute-of-limitations grounds, but in her later action against the lawyers Kremen argued that they might have avoided the usual time limits by invoking certain exceptions to the statute. The lawyers proceeded to argue that Kremen’s suit was doomed anyway, but Manhattan Supreme Court Justice Emily Goodman was not impressed: “[S]uch arguments fly in the face of the fact that Defendants represented Plaintiffs for almost three years, presumably because they believed that the lawsuit had merit.” (Anthony Lin, Legal Malpractice Suit Against Personal Injury Lawyers Permitted to Go Forward”, New York Law Journal, Oct. 31).

7 Comments

  • I hope that this will be a trend and that and more attorneys are sued for malpractice. Once they face the same nightmare that they have created there may be some reform. I find it interesting that if a doctor does one thing and a so called “expert witness” says that he should have done something else, there can be a lawsuit. If an attorney advises one thing or tries a case a certain way and loses and you find a “expert” who says that he should have done it differently it is not malpractice.

  • That opinion ought to make you feel a little tight in the collar.

    One rational reaction would be to never take anything but a slam dunk case.* If you are unable to convince the Court to side with your tenuous legal argument to expand the statute or extend a theory of liability, you can’t call it tenuous later; by the Court’s logic, was the argument not a winner out of hand, you would have never made it, no?

    Also provides a disincentive to preserve arguments and objections for appeal; again, why would you make such an objection if you didn’t know that it was a winner (only to be stifled by the cruel and unfeeling courts).

    Looks like yet another case of bad facts yielding bad law.

    * If you have any of these laying around, feel free to call.

  • I like this argument. If it prevails, it represents “knowledge” of the lack of merit of the case against the doctors. That is an element (malice) for an abuse of process claim by the doctors. The doctors should file in time to make the statute of limitations deadline, unless they want to have the basis to sue their own lawyers for legal malpractice.

    A kind of legal Escher drawing.

    http://britton.disted.camosun.bc.ca/escher/drawing_hands.jpg

  • Isn’t their theory, as stated in the title of the post, the applicable standard for reviewing attorney error in criminal defense?

    (Obviously, there are different policies applicable to a criminal defense, but it just struck me as interesting.)

  • Okay, so much for the “contingency-fee attorneys won’t take meritless lawsuits” argument, that is, if you believe the defendant attorneys in this malpractice suit are now telling the truth. They change their whistle to whatever tune suits them at the moment. For shame!

  • In most states, to prove malpractice you generally have to prove that but for the attorney’s negligence your case would have won.

    There are some good arguments both for and against that rule.

  • […] covered this legal malpractice claim last year, with particular attention to the defendant law firm’s argument that it doesn’t matter whether the case was handled […]