I last discussed this problematic topic on June 30th. This unpublished decision, Godbold v. Karlin & Fleisher, LLC, 2014 IL App (1st) 131523-U, illustrates a malpractice trap contained in Illinois law.
Usually, the rule in Illinois is that you must wait to file your malpractice action until you lose the underlying lawsuit. However, you should not wait to sue while the underlying decision is on appeal. That is the unfortunate mistake that the lawyers made in the Godbold case.
Underlying Case – Plaintiff Missed the Statute of Limitations
Godbold hired the lawyers to represent her in a medical malpractice action Unfortunately, the trial court found that the case was not timely filed and dismissed it on May 7, 2010. Godbold then appealed that decision, which was affirmed on June 17, 2011 by the Illinois Appellate Court.
The Legal Malpractice Case – Plaintiff Again Misses the Statute of Limitations
On June 25, 2012, Godbold sued Karlin & Fleisher for legal malpractice. The problem with the lawsuit is that Godbold sued more than two years after the underlying case was dismissed. The appellate court affirmed. The court explained how the discovery rule works in this fashion:
“A suit for legal malpractice must be commenced ‘within 2 years from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought.’ 735 ILCS 5/13-214.3(b). The Illinois courts have held that the claim arises when the underlying case was dismissed, or May 7, 2010. The appellate court then held that the appeal of the medical malpractice dismissal did not toll the statute of limitations. This decision is consistent with other Illinois cases. As the court notes in its thoughtful opinion, “a ‘legal malpractice plaintiff does not have the burden to prove the exhaustion of all avenues of appeal on the underlying claim in order to state a legal malpractice action.'” Bloome v. Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., 279 Ill. App. 3d 469, 475 (1996).
The key thing to remember is that it is better to sue too early than too late. If you lose a case due to the negligence of your lawyer, your injury has occurred and you should sue immediately.
Finally, this opinion discusses an important issue and should be published.
Edward X. Clinton, Jr.