The first thing to understand about a malpractice claim based on a lawyer failing to file a lawsuit on time is that failing to file will only count if the case missed was a worthwhile one that would have been victorious if filed. In New Jersey as well as elsewhere, it’s not legal malpractice to fail to file a case that has no legal merit and would have been dismissed in any event. Thus, in the legal malpractice case dealing with a missed filing deadline, the client will have to prove that his case had legal merit.
That procedure more or less calls up the Shakespearean technique of portraying a ‘play within a play’, or in this situation, a case within a case, to determine whether the case allegedly not filed was worth filing in the first place. In the reported case, a man claims that he entered into an attorney-client relationship with a law firm in another state in March 2006. At that time he retained the defendants to represent him in a medical malpractice claim and a wrongful termination claim, according to the complaint. He claims that they could have filed from March 2006 through March 2013, but they failed to file both cases.
The man claims that neither complaint was filed within the deadline. He claims suffering a monetary loss from the defendants’ missing each deadline. He claims that this prevents him from moving forward. That may be true, but again it’s stressed that it must be proved to be a legitimate claim before the failure to file is malpractice.
That question for each case alleged to be neglected will likely be decided by the trial judge presiding over the legal malpractice case. If they were in fact both valid claims, then the proof that they were not filed and the time limits have expired, will establish a case requiring compensation if it can also be shown that damages were suffered. In New Jersey and all other jurisdictions, legal malpractice is the performance of the legal services in a manner that falls below the minimum required level of competence that is reasonably expected to be provided by the sued attorney’s peers in the community.
Source: Source: The West Virginia Record, “Man sues R. Stephen Jarrell for legal malpractice,” Kyla Asbury, Aug. 6, 2013
