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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