Ugh…deadlines. Many classes of professionals are bound by deadlines. Attorneys are no different. Pleading requirements, discovery responses, motions, hearings and other proceedings must all be calendared to ensure that an attorney meets all deadlines. In fact, an easy path to malpractice is to miss a deadline. A recent New Jersey verdict highlights the importance of complying with deadlines and maintaining clear and open communication.
In the underlying case, Plaintiff hired Attorney to pursue an action against a number of parties for their negligence in designing and building a retaining wall needed to support the foundation for Plaintiff’s house. Allegedly, the wall “cracked and bulged” when it was completed causing expensive repairs. Plaintiff alleged that Defendant Attorney failed to secure an expert by the deadline which resulted in summary judgment on behalf of the construction and design professionals. A malpractice suit followed.
In the legal malpractice suit, Defendant Attorney argued that their expert had “repeatedly promised” to deliver an expert report but failed to timely deliver a report. Attorney claimed that he had conducted most of his communications with the expert by telephone and had no documentation to support his alleged efforts to secure an expert report. As a result, last week a jury returned an $850,000 verdict against Attorney Defendant.
There are some valuable lessons here. Primarily, of course, deadlines must be calendared and adhered to. There are myriad court mandated or statutory deadlines that have real consequences if broken. However, it is often the case that deadlines can be extended through motion practice or agreement of the parties. Thus, communication is key. Attorneys facing deadlines may be in a position to buy more time simply by asking. Finally, if an attorney cannot meet a deadline, the client must be notified and the file documented accordingly to prevent a result similar to the foregoing example.