Missing a filing deadline is every lawyer’s nightmare. Sometimes the mistake can be fixed but not always. For example, it’s hard to sue a lawyer for legal malpractice if you hire him or her the day that a complaint or other filing is due. That apparently isn’t the case in a recent malpractice action filed in November 2017, however.
Legal Malpractice Claim Against Robert Lyon
Galen Sumrow lives in Caddo Mills, Texas. According to a petition filed in Dallas County, Sumrow claims he hired Attorney Robert Lyon in October 2010. Sumrow and another individual were disputing ownership of a hospital, Presbyterian Hospital of Rockwall. Sumrow hired Lyon to represent his interests in that dispute.
Concerned about how long he had to file a lawsuit, Sumrow says he discussed the statute of limitations (period to file a lawsuit) with his attorney, Robert Lyon. Unfortunately, he says that Lyon gave him bad advice.
Almost three years later in the spring of 2013, Lyon returned Sumrow’s file. No lawsuit had been filed.
Sumrow then found another law firm to pursue his ownership claims. Eight months after getting back his file, the new firm filed suit against the parties disputing ownership of the hospital.
The defendants in that lawsuit said that the time to file suit expired in May of 2012. That was the time period when Lyon had the file. In fact, he had the file at that point for 19 months.
What makes this case unique, is despite the defendants claims that Galen Sumrow’s claims had expired and that his suit was filed too late, Sumrow still managed to win at trial. The jury awarded him $666,232.75 plus interest plus thousands of dollars in costs.
The story ends, correct? Sumrow should be happy and Lyon off the hook, right?
No! The Texas Court of Appeals reversed the jury verdict and ruled that Sumrow’s lawsuit really should have been filed by May 31st, 2008. In ruling against Sumrow, a three-judge appeals panel specifically decided that a letter previously sent by Lyon helped establish the filing deadline. Ouch!
A case that should have been a happy ending for Sumrow’s first lawyer, Robert Lyon, suddenly became a nightmare!
After learning that the court of appeals said he waited too long to file suit, on November 20, 2017 Galen Sumrow sued his first lawyer for legal malpractice. According to the petition (complaints are called petitions in Texas), “As of June 1, 2012, Lyon was and had been representing Sumrow for approximately 20 months. Moreover, as of that date, Lyon was in possession of the information necessary information to timely file suit, which was the same information used to file suit for Sumrow.”
In this case, it will be hard for a jury to say that Sumrow suffered no damages as another jury already set those damages at two thirds of a million dollars.
Missed Deadlines & Legal Malpractice
Missed filing deadlines is one of the most common forms of legal malpractice. Assuming that the client didn’t wait until the last second before hiring the lawyers or failed to cooperate, there really are no good reasons to miss a deadline.
In this case, it appears the lawyer waited because he thought the deadline was months or years away. A three-judge appeals court clearly disagreed.
We are concerned because even though the lawyer had the file for 19 months, he never filed. Worse, he appeared to have given his client bad advice.
Unless there is a sound legal reason to delay filing, we question why Lyon would wait. That wait, even though in good faith, has cost his client at least $665,000 in damages. And for no reason.
Whenever you hire a lawyer for a litigation matter, we suggest that you ask in writing what the deadlines are for filing a complaint. And make sure the lawyer responds in writing. Having a paper trail avoids a “he said, she said” debate later when the finger pointing begins.
Once you receive that written statute of limitations date form your lawyer, follow up with her to make sure your complaint is filed promptly. It’s okay for a lawyer to take time to investigate before filing but if the statute is looming large, make sure it is either filed promptly or you start looking for another lawyer immediately.
Our final tip is never to sign a release in return for getting back your file. (In many states, withholding a client file or demanding a release to get back your file is a bar violation and ethical breach.)
Ultimately, your lawyer is responsible for meeting all filing deadlines. Being a diligent client, however, better insures that your case will proceed smoothly and that you won’t need our services!
Suing Your Lawyer for Missed Deadlines
Suing a lawyer is not for the faint of heart. Lawyers by the nature of their profession are pretty savvy. They are often street smart too.
Insurance companies that defend legal malpractice claims also know that the new lawyer will have to prove two cases.
Two cases? Yes! It is called the case within the case and works like this:
First, your legal malpractice lawyer has to prove that your first lawyer breached a duty of care to you. In missed deadline cases that is usually straightforward. (Insurance company lawyers can still argue that you didn’t hire the lawyer in enough time to prepare a complaint or that you didn’t cooperate in providing information or documents.)
So, let’s say that you prove the lawyer wrongfully missed a deadline, the case still isn’t over. Actually, that only gets you back the place you were years earlier when you fired your first lawyer.
The second prong of the “case within the case” involves proving that your original claim had merit. (For Sumrow, that should be easy as a jury already decided in the original case that damages were $665,000.00)
That means that legal malpractice lawyers often have to prove two cases, the malpractice case and whatever case brought you to your first lawyer
Finding a qualified legal malpractice lawyer is difficult. Most lawyers don’t want the hassle of trying to prove two cases. They are also often reluctant to sue another lawyer, especially if that lawyer is local.
We are unique in that we are a national boutique law firm that handles legal malpractice cases throughout the United States. We aren’t afraid to sue lawyers no matter how big or powerful their law firm.
Legal malpractice is considered by some to be the toughest cases to prove. We are proud to say that we are one of just a handful of law firms in the United States who concentrate on these cases nationally.
For more information, visit our legal malpractice information page. Want to see if you have a case? Speak to an experienced legal malpractice lawyer today by contacting us online, by email at [hidden email] or by phone 877-858-8018 All inquiries are protected by the attorney – client privilege and kept confidential.