It happens all the time: an otherwise good PI lawyer with a healthy auto practice has a product liability case come into his office. The case is a little bit out of his wheelhouse. Despite best intentions for his client, he commits legal malpractice by mishandling the case.
There seem to be five recurring scenarios of how this kind of legal malpractice usually happens, all of which can be avoided if only PI attorney had the potential pitfall on his firm’s radar. Here they are in reverse order:
5. Statute of Repose. Most PI firms have a good system for tracking statutes of limitations but don’t track statutes of repose. Blowing a statute of repose is equally as deadly to a product liability case as missing the SOL. The fix is easy: put the SOR in the firm’s system and track it for every case that involves a defective product. Here’s a comprehensive 50 state memo our firm put together that we use to track both statutes of limitations AND repose.
4. Evidence and Chain of Custody. Like the murder weapon is to a homicide prosecution, the defective product is to a product liability claim. Because the plaintiff has the burden of proof it’s the PI attorney’s job to investigate, document, preserve, and prove chain of custody for the defective product and other physical evidence (think skid marks and crash debris at a crash site). I’ve talked about it here and here before, but this is where good office procedures are the fix.
3. Empty Chair. Here’s the scenario: a distracted driver crosses into oncoming traffic and crashes into the plaintiff’s vehicle. Plaintiff dies because her car’s defective airbag failes to deploy. There are two defendants with plenty of coverage — the distracted driver and the airbag manufacturer. Early in the case Plaintiff attorney takes some easy money from the distracted driver and then tries to refer the product case to a firm that specializes in product litigation. Really bad idea. This can create a host of unanticipated problems for both the case AND the referring PI attorney. Although it might be appropriate in some situations, this scenario often creates more problems for the client than it solves.
2. Crappy Experts. Most product manufacturers are self insured and are deadly serious when it comes to defending their products. They hire A Team law firms and A Team experts. Their experts are usually engineers who grew up in the industry, designing and testing the product at issue. They’ve published reams of studies (albeit often self-serving drivel written solely for litigation purposes) and are gifted on the stand. The only way to win at trial is to have equally qualified, experienced and talented experts. The problem: A Team experts who will to testify for a plaintiff are few and far between. Which means they can command ridiculous retainers and fees. The result? The uninitiated PI attorney flinches, hires a local engineer or retired cop he uses for his auto cases, and gets hammered. So don’t cheap out. Bite the bullet. Hire the best or lose.
1. Networking. When I was with a defense firm representing manufacturers, whenever a new plaintiff attorney would show up in a case we’d ask the question: is he wired or not? The attorneys who were “wired” were connected with other plaintiff attorneys who shared information about the particular product litigation at issue. By being connected to a network of shared information, the “wired” attorney would know how best to gut our defense experts during deposition; would know about the existence of smoking gun documents; would be prepared with and able to prove OSIs; and so on. If the lawyer wasn’t wired? Fresh meat. The lesson for me as a young lawyer was clear: network or die.
These are some of the most common legal malpractice land mines that, sadly, I see fellow plaintiff attorneys step on time and time again. Increased awareness about these issues is the solution. Hopefully this list will help someone, somewhere, avoid a potential problem — for both their client and their firm.