Suing a Lawyer for Missed Deadlines (Legal Malpractice)
Practicing law is a stressful occupation. Everyday there are new deadlines, miss one and your client may suffer. We aren’t suggesting that clients don’t have even more stress. That is why lawyers generally are paid well. We are paid to shoulder the burdens of our clients. A man who fell in an Illinois parking lot has even more stress today after a court dismissed his case because of his lawyer’s repeated neglect.
Lawrence Krivak tripped in the parking lot of a Home Depot located in Elk Grove, Illinois. He says uneven pavement caused him to trip. That fall caused a painful fractured elbow that required several surgeries to repair.
Krivak hired lawyer John Corbett to represent him in a lawsuit against Home Depot. Almost immediately, things went downhill.
According to the court,
“Beginning with the first status conference, Krivak’s counsel, John James Corbett, missed many court appearances, played loose with deadlines, and eventually drew a discovery sanction and reprimand from the magistrate judge. Krivak’s counsel attributed his delinquency to his firm’s unfamiliarity with federal practice—specifically, his assistant’s inexperience with monitoring the district court’s electronic docket and keeping an eye out for emails transmitting court orders, scheduling information, and the like. But even as the litigation progressed over the course of two years, the inattention continued. The district court’s patience eventually ran out.
“As discovery came to a close, Krivak’s counsel failed to ap- pear at the final two status conferences before the magistrate judge. The no-shows prevented the court from confirming a dispositive motions schedule. The magistrate judge and the district judge both warned counsel against missing further conferences. The magistrate judge provided a clear and precise instruction: ‘If counsel, for any reason, is unable to personally appear, he must notify the Court at least 24 hours in advance.’ And the district judge similarly warned that if counsel failed to appear at yet another conference without 24 hours’ notice and good cause, ‘this case will be dismissed with prejudice for want of prosecution.’”
Shortly after that warning, on December 19, 2019 Krivak’s lawyer failed to appear for a scheduled conference. The court kept its word and dismissed Krivak’s case. According to the judge, it was the third time in a row that his lawyer missed an appearance.
Evidently that dismissal finally got the lawyer’s attention. He filed a motion to have the case reinstated and even showed up in person to plead his case.
In an effort to protect his client, the attorney then filed an appeal. According to the U.S. Court of Appeals, however, the appeal was filed too late!
A three judge panel didn’t stop there. They reasoned even if the appeal was timely, the dismissal was proper. The lawyer blamed his staff but that didn’t rise to the level of excusable neglect, according to the court.
“[C]ounsel still inexplicably missed the next conference. And he has no one to blame but himself, as attorneys—not their staﬀ—are expected to exercise diligence in monitoring the disposition of their cases. Disregarding court orders and deadlines is a risky course, and counsel’s inattention caught up with him.”
So what happens to Krivak? He lost even though there is nothing to suggest that he did anything wrong.
“The misfortune of Krivak bearing the cost of counsel’s shortcomings is not lost on us, but it does not provide reason to overturn the district court’s decision. Attorney inattentiveness to litigation is not excusable, no matter what the resulting consequences the attorney’s somnolent behavior may have on a litigant. Because Krivak chose counsel as his agent, he bears the consequences of counsel’s actions. It pains us to observe that the proper remedy, if Krivak is to have one at all, is a malpractice action against the attorney.”
There you have it. Even if you do nothing wrong, you can still be responsible for the failures of your lawyer. Some may find that result harsh. Clients have told us that the court should have fined the lawyer but not dismissed their case.
While dismissals are relatively rare, if your lawyer misses too many deadlines, you could see your case dismissed. The record in this case suggests that Krivak’s lawyer missed many deadlines. We have seen cases dismissed when the lawyer missed a single deadline.
As noted by the court’s opinion, Lawrence Krivak does have an option. He can sue his lawyer for legal malpractice.
Bringing a successful legal malpractice action means you have to win two cases. First, you must show that your lawyer did something wrong. Assuming all the facts in this story are true, that step will be easy in this case. Krivak’s lawyer had a duty to his client and breached that duty by missing court deadlines. As a result of that breach, Krivak was denied his day in court.
The inquiry doesn’t end there, however. In the legal malpractice action, Krivak must still prove damages. And that means he must prove that he was likely to win his slip and fall lawsuit against Home Depot. Assuming he can do so, he must also prove his damages from that fall.
This is what legal malpractice lawyers call the case within the case. The victim of malpractice must prove both the malpractice by the lawyer and the underlying case for which his lawyer had been hired.
If your lawsuit has been dismissed because of things your lawyer did or failed to do, you may have a claim for legal malpractice. Most folks who are victims of legal malpractice are already stressed from whatever issue that caused them to hire a lawyer in the first place. That stress can become overwhelming if their lawyer fails them. Many folks simply give up.
It doesn’t have to be that way.
Finding a law firm willing to sue other lawyers is difficult. Often you may have to look out of town for someone. If you are the victim of legal malpractice and that malpractice involves a significant amount of damages, we may be able to help.
We and our network of legal malpractice lawyer have helped people all over the United States. To learn more, visit our legal malpractice information page. Ready to see if you have a case? Contact us online, by email [hidden email] or by phone 877-858-8018. All inquiries are without obligation and kept completely confidential.