by Brian Mahany
We don’t like to see lawyers make mistakes. It happens, however, and hurts the reputation of the entire profession. Often the mistake can be fixed for little or no cost. There might be some attorney’s fees or sanctions levied against the offending lawyer but most claims are easily resolved. Sometimes they are not, however, and the results can be disastrous for the client and the lawyer.
Rx.com is a large Internet based pharmacy company. They brought an unfair trade practices action against several pharmacy benefit managers. Unfortunately, their lawyers filed the case too late.
Congress and the states have passed laws which require lawsuits to be filed within a certain time period. If a client waits too long to file, there is no recourse. Sometimes, however, the lawyer waits too long. When that happens, it is often the lawyer’s fault. Missing a filing date (called the statute of limitations) can happen for a variety of reasons. If the matter is very complex or involves a novel theory of law, missing a deadline may not be the lawyer’s fault.
Rx.com claims that their missed deadline was the lawyer’s fault. Recently, their case got a big boost when a justice department lawyer testified that Rx had a great case had the matter gone to trial.
Unfortunately, the folks at Rx.com have waited for a long, long time for justice and may never see any money. Their original case was filed in 2004. Eight years later and after a tremendous amount of appeals, legal maneuvering and fights over jurisdiction, Rx is finally getting its day in court. One of the malpractice insurance companies, however, previously filed its own suit asking the court to be excused from having to pay any claims.
Juries don’t have a lot of sympathy for bad lawyers but getting a case before a jury could take a long, long time as Rx’s case proves. And even if the one gets to a jury, they still must win not one but two cases.
That’s right. Two cases. Legal malpractice lawyers call this “a case within the case.” First, you have to prove that your lawyer did something wrong. Cases based on bad strategy decisions don’t fare well but missing a court deadline is usually makes for a good case.
Assuming you prove that your lawyer mishandled your case and was negligent, you must then prove that had the original case gone to trial, you would have won. Here, Rx must prove that if its case was not dismissed because the lawyers waited to long it would have won.
Finding a legal malpractice lawyer is difficult. There is an unwritten code that many lawyers will not sue one of their own. Often, victims must look out-of-town to find a lawyer willing to take the case. The smaller the community, the more difficult to find a lawyer willing to sue a local lawyer.
The fraud recovery lawyers represent victims of legal and other professional malpractice including accountants, bankers and stockbrokers. If you lost money because of bad lawyering, give us a call. The call is free and without obligation. Of course, all inquiries are protected by the attorney -client privilege and kept in confidence.
Mahany & Ertl – America’s Fraud Lawyers. Offices in Milwaukee, Wisconsin; Detroit, Michigan; Portland, Maine & Minneapolis, Minnesota. Services available in many jurisdictions.