“Failure to Prosecute” – Recipe for Legal Malpractice

“Failure to Prosecute” – Recipe for Legal Malpractice

Many lawyers seem to be disorganized. Some of the smartest lawyers we know can’t seem to get things done until the last minute and have offices that look like a crime scene. A messy office may turn off clients but isn’t necessarily bad. Waiting to the last second to meet deadlines is a recipe for disaster, however. Wait too long and chances are good that a critical deadline will be missed or a case dismissed for failure to prosecute.

When laymen hear the term “prosecute”, they may think of criminal cases and district attorneys. The term also describes what civil lawyers do when they pursue a client’s claims in litigation. Delay too much and a court can dismiss a claim for “want of prosecution” or failure to prosecute.

Pennsylvania Client Loses Case after Repeated Delays by Her Lawyer

A legal malpractice case against a Pennsylvania lawyer offers a good example of failure to prosecute civil claims.

In December 2007, Loreen Wright was involved in a car wreck. Almost immediately, Wright sought legal help and hired John Levan to represent her. Despite being hired in January 2008, Levan did not file suit until Christmas Eve, 2009. Pennsylvania law gives accident victims just 2 years to sue and Wright’s claim made it under the wire by just hours.

There are sometimes tactical reasons to delay filing but it is almost always a bad idea. Wait until the last minute and there is no room for error. That may have been the case here since Levan had to amend the complaint just 4 days later.

Even after the complaint was filed and amended, there was no record that it was served on the defendants. Filing a lawsuit stops the clock but there are also short deadlines in order to effect service.

Once again, the record appears that Levan was dilatory. Twice Levan had to extend the time for service. 11 months after filing and almost 3 years after the accident, the complaint was finally served.

There may still have been time to save the day and protect Loreen Wright’s case but it appears that Levan dropped the ball again. According to a legal malpractice claim filed against him, there were no further pleadings, no discovery. Nothing. Three different judges were involved in the case yet Levan never appeared in court or responded to notices.

Finally, the court issued Judgment of Non Prosecution. Wright’s case was over. She would never get her day in court. It was dismissed and tossed out but not because she did anything wrong.

Only after Loreen Wright hired a new lawyer to pursue a legal malpractice case did Levan seemingly wake up. Instead of turning over Wright’s file to her new lawyer, however, he apparently used it to show she had little damages from her accident.

The lawyer hired to zealously represent his client and obtain the maximum amount of damages for her pain and suffering was now trying to protect himself. He used her records against her to argue his former client’s damages were minimal.

A court ultimately ruled that not only was Wright entitled to compensatory damages but was also entitled to an award of attorney’s fees and punitive damages. The court ruled that Levan’s conduct in the personal injury case and especially his conduct after that case was dismissed was outrageous and malicious.

Failure to Prosecute and Suing Lawyers

There were many red flags in this case including Levan’s failure to keep Loreen updated on her case. Waiting until the last minute in litigation cases is unfortunately common but also a recipe for disaster.

Clients can usually break a fee or representation agreement with their lawyer if they have good cause. All lawyers have occasions where a few things get delayed but missing deadlines or repeatedly delaying is strong evidence of failure to prosecute and that is a sure indicator of legal malpractice.

Suing a lawyer is no easy task. No client wants to sue his or her lawyer. And most lawyers won’t touch these cases. It is easier to avoid a problem than bringing a legal malpractice claim, however.

If you think your lawyer is not being responsive, demand answers and demand them in writing. If the problems continue, try to negotiate an exit strategy but have a new lawyer lined up first. A lawyer who won’t withdraw or who demands unreasonable fees can often be nudged with the threat of a bar complaint or fee arbitration. That is where the state bar or bar disciplinary system can usually help.

If you lose money, however, or suffer other damages (like the dismissal of the original complaint), contact us immediately. [contact form LINK]

If the lawyer had botched your case, bar complaints and fee arbitration committees are usually not the answer. A bar complaint might get the lawyer reprimanded or even suspended but most grievance committees can’t award damages.  A fee arbitration may get you a refund of legal fees, but again, it won’t get you a damage award.

In many states, victims of legal malpractice only have one or two years to bring a complaint. If the lawyer has been hiding his or her malpractice, you may have even less time.  Instead of relying on their promises to make things right, give us a call. We will evaluate your case and help you decide your next action. If you need to sue, our team and national network can move quickly, effectively and anywhere in the United States. 

A Word About Legal Malpractice Lawyers

If you are reading this post, you have already been burned once by an unqualified or negligent lawyer. Before you trust your legal malpractice claim to yet another lawyer, make sure they really understand and concentrate in these cases. While any lawyer can accept a legal malpractice case, few lawyers concentrate or handle these claims routinely. Visit their website and make sure it is a big part of their practice.  Often, we see personal injury lawyers who simply throw a couple paragraphs on their website about legal malpractice cases.

Attorney Brian Mahany and his colleagues have handled many malpractice cases. Because we are experienced trial lawyers – malpractice lawyers – we believe that we are taken more seriously by both judges and defense lawyers.

For more information, contact attorney Brian Mahany at [hidden email], online or by phone at 877-858-8018.  Please note that we only consider cases where the real loss (provable damages) are $2 million or more. We treat every case as important. That means we won’t take on too many or smaller cases. If you do not meet our guidelines, consider contacting the legal referral service of your local bar association. 

Just looking for general information? Visit our Can I Sue My Lawyer information page.



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