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Posted by John Steele at 12:30 PM | Permalink
My impression is that this kind of result is typical in personal injury cases in which the plaintiff dies prior to settlement.
I disagree with that result. The lawyer still has a client - the plaintiff's estate. The difference is that the defendant can expect to pay less for killing the plaintiff than for maiming him. Also, the defense can postpone resolution of the case by making the widow file all over again.
A parallel issue that I raise in class is the single-eye-witness case in which the witness dies and the prosecutor goes ahead with a plea bargain without informing the defense lawyer that there no longer is a prima facie case. Does anyone know of disciplinary action in such a case?
Monroe Freedman |
April 27, 2010 at 02:42 PM
I don't know of the latter, but unless I'm mistaken there is solid case law for the need to inform the opponent of the death of your party. (Whether or not that's a good rule isn't what I'm arguing; I'm saying that I think it's recognized law.)
John Steele |
April 27, 2010 at 03:05 PM
According to the underlying story, the attorney had already been disciplined 7 times in the past 12 years.
Steven Lubet |
April 27, 2010 at 03:43 PM
Yeah, he wasn't up for "Lawyer of the Year."
John Steele |
April 27, 2010 at 03:52 PM
Pain and suffering damages, the damages that typically cover the lawyer's contingent fee in most low end PI cases, can only be recovered by a living client, at least in California. Hence the motive to conceal the client's death.
David Cameron Carr |
April 27, 2010 at 07:39 PM
Once the client dies, the lawyer no longer has a client unless until the estate hires the lawyer to represent it. If litigation has already been filed, the estate (or a personal administrator) will have to be substituted for the deceased client. Some causes of action will not survive a party's death. The client's death terminates the lawyer's agency. Long story short, there are plenty of reasons that every court that has examined the issue has held that a lawyer must timely reveal a client's death. Monroe is right about the value of a case--death cases typically are worth less than cases featuring a catastrophically injured plaintiff. Defense lawyers have long joked that if you are ever driving and hit a pedestrian, be sure to back over him.
Doug Richmond |
April 28, 2010 at 03:09 PM
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