Legal Malpractice in Civil Procedure

 

What is Civil Procedure?

The Massachusetts Rules of Civil Procedure are the Court imposed rules that all litigants in the Massachusetts (and federal) Courts require to proceed from filing a Complaint, through trial and appeal.  These rules include detail from how Complaints should be captioned, how service on defendants should be made and how pleadings should be signed.

There are hundreds of rules, including subparts.  They are complicated but they help lawyers and judges move cases through the system.

What Types Of Civil Procedure Violations Result in Legal Malpractice?

The attorneys at Burn & Jain have represented many victims of legal malpractice where the attorneys simply could not follow the Rules of Civil Procedure.  Let’s review some of the most common violations and the results:

Failing to serve a Complaint in a timely fashion.  While filing the Complaint with the Court starts a lawsuit, SERVING the Complaint on the defendant is the next step.  Generally, you have 90 days to serve the Complaint.  The Complaint should be sent to the Deputy Sheriff for service.  Of course, you need to follow up as the directions as to how and where to serve may not be carried out correctly.  We have represented victims of legal malpractice because an attorney simply did not follow through and have the Complaint served.

Failing to answer interrogatories in a timely fashion.  We have seen this many times.  The attorney initiates a lawsuit and then when the defendant, by their attorney serves “discovery” against the plaintiff, the plaintiff’s lawyer simply neglects to comply with the rules – you have to answer interrogatories within 30 days.  Thus, the attorney has to draft answers to interrogatories, review with the client, have the client sign, AND return the signed interrogatories to the defendant…within 30 days.  Negligence happens in this process and folks get defaulted.

Failing to appreciate the complexities of a summary judgment motion and losing the case.  Summary judgment is a rule that allows a judge to decide a case without a trial.  Basically, the rule says that taking all of the information discovered in discovery, and viewing it in light most favorable to the opposing party, the moving party wins.  This can sound simple, but motions can be complicated and the rules are nuanced so as to require much attention, in a short time, to exactly the points made by moving party.  When someone looses here, it can be clear that there was malpractice.

Why do Attorneys Lose as a Result of Procedure?

We think most of these cases are because the attorney is too busy or is having external problems.  The Rules of Civil Procedure are taught in law school and, for folks that don’t understand how they apply, the Clerks at the various Courts will assist.  Further, simply calling the other side and asking a few questions would likely result in resolving any questions.  Frequently lawyers have too many cases, or ask an inexperienced associate to handle a case, or an external problem gets in the way of aggressively and effectively litigating a civil case.

Retain Competent Counsel in Legal Malpractice

If you lost your case in Superior (or District) Court in Massachusetts and you think that your lawyer may have failed to adequately follow the Rules of Procedure, you may have a legal malpractice case.

Seek competent counsel.  Burns & Jain has represented victims of legal malpractice for decades.  We have represented clients whose attorneys failed to understand, or follow, the Rules of Civil Procedure and, as a result, lost their rights to proceed with a case in Court.

Call us for a free consultation.