One of the first things drilled into your head as a first-year law student is to do good legal research and to assume nothing about the law.  Every legal issue involved in your case needs to be researched and carefully evaluated.  After all, the law changes.  Part of a lawyer's job is to understand what the state of the law is at any given time and how that law impacts cases being handled by the lawyer.  This requires a good bit of diligence.  Changes in the law don't just happen in the legislature.  They also happen in the courts.  Courts change the way they interpret the law, and they write published statements, called "opinions," that explain their reasoning.  A lawyer's job is to research those opinions and to understand the current state of the law.

In the case of Sarah E. Gilbert and her medical malpractice lawyer, Barry J. Nace of Paulson & Nace in Washington, D.C., a jury has found that Nace committed legal malpractice in a medical malpractice case, apparently for failing to properly name the plaintiff, who was a minor at the time, and, as a result, missing a statute of limitations deadline.  Nace waited until four days before the statute of limitations expired to file a lawsuit.  That is a potential problem in and of itself.  Although it is not unusual for lawsuits to be filed just before the statute of limitations expires (we've all done it), it is not the ideal situation because it leaves very little time to correct problems with the filing if they arise.  Filing a case this late in the game always leaves me a bit nervous for that reason but, sometimes, it is not something you can avoid.  Sometimes, for instance, the client has contacted you late in the game and you're trying to help them.  If you file your complaint just before the period to do so is about to expire, you better make sure it is perfect and that all the "i's" are dotted and all the "t's" are crossed.  Once that statute of limitations period expires, you may be out of luck and unable to correct mistakes in your filing.

Unfortunately, in Gilbert's case, the trial court found that an enormous procedural problem existed with the complaint.  The complaint filed in Richmond Circuit Court named Gilbert's parents as the plaintiffs as Gilbert's "next friends," but failed to name Gilbert as the plaintiff.  The trial court found this was incorrect because Gilbert's parents were not the people who were injured.  Gilbert was the person who was injured and Gilbert should have been named as the plaintiff.  Had this been done properly, the case would have been in Gilbert's name, by her parents as her next friends (not the other way around).

This, of course, is a very simple issue.  And it is understandable how a human mistake like this could be made.  Mistakes do happen all the time.  The point, however, is what I said about the lessons learned in the first year of law school.  Assume nothing.  Research everything.  Take nothing for granted.  If your client is a minor, as Gilbert was, red flags should immediately go up because minors lack certain rights under the law.  One of those is that they cannot just go out and file a lawsuit on their own.  They must do so by a "next friend," an adult.  When a lawyer drafts a complaint for a minor, this train of thought eventually drills down to the following question in the lawyer's mind: "how should we phrase the complaint to properly name our minor client as the plaintiff?"  Again, a very simple research question but, like many simple research questions in our profession, it is one that has devastating consequences for the client if not answered correctly by the lawyer.

Kevin W. Mottley
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Richmond, VA trial lawyer dedicated to handling brain injuries, car accidents and other serious injury claims
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