Legal Malpractice Case - An Oldie But a Goodie
Legal Malpractice Law Review brought to my attention an interesting legal malpractice case from 1979 in Pennsylvania, Schenkel v. Monheit, 226 Pa. Super. 396 (Pa. Super. Ct. 1979).
The plaintiff's lawyer in the underlying case (and now the defendant) failed to sue the original defendant's employer in an auto accident case. Plaintiff received a jury verdict of $10,000 in the original case, but said he would have received more had the employer, a corporation, been sued. So, he sued his lawyer seeking the "extra" money.
The appellate court in the malpractice action disagreed, saying that the corporate employer's liability was vicarious only and that joining the employer would have only enhanced collectability of the judgment. The failure to add the employer did not cause damage to the plaintiff because the original judgment was collected in full.
Do you agree or disagree with this result? As you evaluate your answer, remember T.P.I - Civil 1.04:
The fact that a corporation is a party must not influence you in your deliberations or in your verdict. Corporations and persons are equal in the eyes of the law. Both are entitled to the same fair and impartial treament and to justice under the same legal standards.
Also remember that jurors are presumed to follow the instructions of the trial court. See, e.g. State v. Williams, 977 S.W. 2d 101 (Tenn. 1998).
If jurors always follow instructions, why would insurance companies in states such as Nevada make such a great fuss if the plaintiff's bar tried to change the law and allow, for example, in an auto accident case, a lawsuit against the at fault driver's insurance company rather than against the at fault driver?
I have been practicing personal injury law for plaintiffs for 30 years in Las Vegas and it seems to me that we as plaintiffs' attorneys are trained to name as many defendants as possible. (It's always easier to include a defendant in a complaint than it is to make a Motion to Amend Complaint to add an additional Defendant; you never know what discovery will show about the responsible party, etc.)
This said, however, as an lawyer who also takes on plaintiffs' legal malpractice cases, the prejudice in this case to the plaintiff by his attorney not naming the driver's employer seems so speculative that this is not a case I would have taken.