• July 10, 2019

Civil litigation generally spans about a year in Minnesota courts, with larger cases often stretching an additional year (or two) (or, in rare cases stretching many more years).

Work on a particular case is almost always in fits and starts, with flurries of activity followed by fallow periods (awaiting a court ruling on a motion, allowing time for responses to discovery, because of scheduling challenges, etc.).

One of the nauseating aspects of our work, one of the risks of civil litigation for trial lawyers, is that mistakes are made — omissions — and it can be several months or more before the oversights come to the lawyers’ attention. The lapses lie, land mines, and the consequences (if any) may be months or even years away. This is particularly unpleasant because the oversights, if caught promptly, are almost always easily remedied. If they aren’t, they aren’t.

So we are sympathetic to lawyers, Napoli Shkolnik PLLC, Hunter J. Shkolnik, and Paul Napoli Law PLLC (or, to be more precise, their predecessory firm, Napoli Bern Ripka Shkolnik) (collectively “NS”), defendants in a professional malpractice claim, who allegedly failed to disclose medical $1.5 million in their client’s medical expenses in discovery (in a much followed lawsuit against Toyota arising from a terrible car accident).

When their client eventually won at trial (and on appeal) (represented by other lawyers), she was not able to recover medical expenses that had not been disclosed in discovery.

Now, NS’s former client is suing NS for their mistake (and an allegedly “unauthorized settlement demand” (here at p. 2) or “unauthorized settlement agreement” (here at p. 4) (?)). NS, incidentally, is also suing for fees that it claims that it earned before being terminated.

Unfortunately, there is no rock solid practice pointer in this post other than to highlight the risk. Trials almost never happen; in civil litigation, they are almost always remote in time and, in a sense, “out of mind.” Checklists and docketing mitigate but cannot eliminate the risk.

[Also, Minnesota lawyers are not required to carry malpractice insurance (as Oregon lawyers are in Oregon). Legal malpractice insurance should be required in Minnesota.]

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