Tennessee Injury Law Center : Lawyers for Personal Injury and Wrongful Death : Serving Memphis, Nashville, Knoxville

I had a case pending in Circuit Court in one of the counties in Middle Tennessee.  The defendant filed  a motion for summary judgment and my lawyer forgot to respond on time so the judge dismissed my case.  Can I sue my lawyer for not filing papers on time to keep my case alive?

Assuming that your lawyer had proper, timely notice of the motion for summary judgment and she was still representing you at the time the papers were due, she should  have filed a response to the motion for summary judgment assuming that there was a good faith reason to oppose it.  A lawyer cannot oppose a motion unless there is a good faith basis in the facts and / or the law to oppose it.

If you sue the lawyer, you will have to prove that (a) the lawyer should have filed on response; (b) the failure to file a response caused you to lose the motion; (c) if the case had not been dismissed you would have won the case; and (d) the amount of damages you would have won.

Expert testimony will be required to prove points (a) and (b).

If you want to sue this lawyer you must do so within one year of the time you knew or should have known that the lawsuit was dismissed.  Failure to file suit on time will result in a loss of your rights.

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My lawyer missed the deadline for filing my lawsuit.  What are my rights?

You may well have a case against your lawyer.  To prove that case, you have to prove that the lawyer should have filed the case on time and, if he or she had done so, you would have prevailed in the case.

So, you really have two separate cases.  First, you have to prove the lawyer's error.  Second, you have to prove that you would have won the underlying case and the the amount of damages you would have won.  If your original case had no merit, your case against the lawyer will not be successful.  Why?  Because the lawyer's failure to file your case on time did not cause you any damage - you would have lost the case anywhere.

The law has deadlines for filing claims against lawyers.  You should consult a lawyer as soon as possible to see if your claim has merit.

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I was hurt in a car wreck in Lebanon, Tennessee last year.  I hired a lawyer two months after the wreck.  He called me last week, and told me he forgot to file my lawsuit on time.   He said he filed it late and hopes that the other side won't say anything but that if they figure it out my case will be dismissed.  What do I do now?

Your lawyer did the right thing by telling you that he made an error.  The failure to file a lawsuit within the one year period required by Tennessee law is legal negligence absent extraordinary circumstances not apparent from your question.

You need to hire a different lawyer to help you evaluate your case and, if necessary and appropriate, assert a claim against the lawyer.  To prove your case, you will need to prove that the lawyer committed malpractice by not filing the case on time.  You will also need to prove that more likely than not you would have won the underlying case (the care wreck case).  Lawyers refer to this second case as "the case within the case." 

Do not attempt to reach a settlement with the lawyer without seeking independent advice.  You need a different lawyer to help you evaluate the case. 

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 I was hurt in a car wreck in Carthage, Tennessee  last year.  I hired a lawyer one month after the wreck.  She called me last week, and told me she forgot to file my lawsuit on time.   She said he filed it late and hopes that the other side won't say anything but that if they figure it out my case will be dismissed.  What do I do now?

Your lawyer did the right thing by telling you that she made an error.  The failure to file a lawsuit within the one year period required by Tennessee law is legal negligence absent extraordinary circumstances not apparent from your question.

You need to hire a different lawyer to help you evaluate your case and, if necessary and appropriate, assert a claim against the lawyer.  To prove your case, you will need to prove that the lawyer committed malpractice by not filing the case on time.  You will also need to prove that more likely than not you would have won the underlying case (the care wreck case).  Lawyers refer to this second case as "the case within the case." 

Deadlines apply to cases against lawyers.   Ordinarily, you must file a malpractice case against a lawyer within one year of the time you discovered or reasonably should have discovered that you had a claim against the lawyer.  

Do not attempt to reach a settlement with the lawyer without seeking independent advice.  You need a different lawyer to help you evaluate the case and determine a fair value for the case.

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 I think I have a medical malpractice claim in Tennessee. I live in Tennessee and the malpractice occurred in Tennessee.  Can I hire an out-of-state lawyer to represent me in this case?

Yes, although the out-of-state lawyer must either have a Tennessee law license or must work with a Tennessee lawyer on the case.

The more important question is why would you hire an out-of-state lawyer to represent you?  There is a real advantage to hiring a lawyer who is familiar with Tennessee law (the law of every state is a little different, and Tennessee has some very unusual aspects to its medical malpractice law) and who knows the way our legal system works.   There are some very good medical malpractice lawyers in this state who have experience in a wide variety of medical malpractice cases, and thus it rarely makes sense to go to the trouble of finding an out-of-state lawyer to work on a case.  

If you hire an out-of-state lawyer read the employment agreement carefully and see if you bear the responsibility for travel expenses.  There tends to be a significant number of hearings and depositions in medical malpractice cases, and if you are responsible for those expenses your recovery in the case, if any,  will be decreased.

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I was hurt in a head-on automobile accident.  The driver that crossed the centerline and hit me died in the wreck.   Do I have legal rights against him even if he is dead?

Yes.   Although you can't sue someone who is dead, you can sue his estate.   If an estate is not opened for him, you (through your lawyer) can petition the court to have an estate opened so that you can sue it and collect the monies you are entitled to recover.

The fact that the person who hit you died does not relieve his insurance company of the obligation to defend the case and pay the monies to you that you are entitled to receive under the law (up to the liability insurance policy limits). 

An experienced personal injury lawyer will know how to help you through this process.   Remember that in Tennessee a personal injury claim must be filed against the responsible people within one year of the date of the accident.   Under these circumstances you will need act even more promptly than usual because the lawyer you hire will need to do extra work to get an estate opened for the decedent so that suit can be filed within one year of the date of the accident.

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I was hurt in a car wreck in Nashville  last year.  I hired a lawyer two months after the wreck.  He called me last week, and told me he forgot to file my lawsuit on time.   He said he filed it late and hopes that the other side won't say anything but that if they figure it out my case will be dismissed.  What do I do now?

Your lawyer did the right thing by telling you that he made an error.  The failure to file a lawsuit within the one year period required by Tennessee law is legal negligence absent extraordinary circumstances not apparent from your question.

You need to hire a different lawyer to help you evaluate your case and, if necessary and appropriate, assert a claim against the lawyer.  To prove your case, you will need to prove that the lawyer committed malpractice by not filing the case on time.  You will also need to prove that more likely than not you would have won the underlying case (the care wreck case).  Lawyers refer to this second case as "the case within the case." 

Do not attempt to reach a settlement with the lawyer without seeking independent advice.  You need a different lawyer to help you evaluate the case.

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