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When a Lawyer Fails to Understand the Governing Law

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This blog illustrates an example of legal malpractice in the personal injury context. Many attorneys practicing personal injury law are quite skilled at obtaining recoveries from private insurance companies for motor vehicle accidents or slip-and-falls. These are what we might call ordinary general liability cases. Even in these ordinary cases, there are many legal issues that could affect the outcome. However, when a general liability tort claim is brought against a government/public entity, knowledge of an additional set of statutes, regulations and common law precedent will be required. When lawyers disregard or are ignorant of these special requirements, dire results can ensue for the client, such that his otherwise meritorious claim for the recovery of damages against a governmental/public entity is lost.

Mr. Green (as always, a pseudonym) was gravely injured at the airport in a trip-and-fall on a sidewalk defect. In Massachusetts, such sidewalk defects have a $5,000.00 damages cap, no matter how serious the injury may be. Mr. Green retained an established personal injury firm, X&Y, to sue the government agency that administers the airport facilities. X&Y did not understand that the $5,000 cap applied to Mr. Green's case. They also failed to understand the legal status and administrative structure of the defendant. This was a vital omission because the governing statute, in this example M.G.L.c. 258, imposes a notice requirement that is shorter than the tort statute of limitations period, and also identifies the administrative level to which notice must be given. Thus, through ignorance, X&Y failed to give notice of Mr. Green's case to the correct individuals at the agency. That ended Mr. Green's case, but it is instructive to note that X&Y also brought a loss of consortium claim on behalf of Mr. Green's spouse, in ignorance of the legal principle, established by the Massachusetts Appeals Court years earlier, that the agency responsible for Mr. Green's injuries was immune from being sued for loss of consortium claims. The suit proceeded nevertheless, but X&Y did not obtain any discovery from the agency, although the agency propounded a good deal of discovery to be answered by Mr. Green. The agency knocked out Mr. and Ms. Green's claims on summary judgment.

Postscript: even though this was a clear case of legal malpractice, the personal injury case against the airport was fatally defective from the beginning through no fault of the attorney, in that nobody who plaintiff could identify actually caused the sidewalk defect on which he tripped. Thus, there was no meaningful basis on which to bring a claim against X&Y. I hope this is instructive as to the level of analysis needed to evaluate most legal malpractice claims. There is no substitute for having an experienced legal malpractice lawyer conduct such an analysis for you.

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