Plaintiffs Should Not Be Held Accountable for Attorney Negligence

In the spring of 1990, with the help of a therapist I came to the painful decision to file a civil lawsuit against my then stepfather for years of sexual abuse I'd suffered at his hands. For an abuse victim, this goes against everything they were ever taught--that all powerful message of don't tell and keep the secret. But at the same time, what a powerful way to reclaim both my power and my voice and to have this perpetrator finally held accountable for his reprehensible behavior!

I found my attorney in a local community newspaper. I was a somewhat naive 29 yr old when it came to legal matters and so I did not know to ask what I know in retrospect would have been relevant and appropriate questions before hiring any attorney. For instance, I did not ask to see his credentials. I did not ask if he had been licensed in any other state other than Maine where I live. I did not ask whether he had any previous sanctions against him. Nor did I ask whether he carried malpractice insurance or ever had cause to use it. These are things I would do now if I had cause to hire an attorney. Lesson well learned.

It took me a fair amount of time to learn to trust the attorney because I was not used to positive experiences with male authority figures. But he won me over by being appropriate, kind and consistent for the first two plus years of our regular interactions. He had no previous experience in trying sexual abuse cases but he seemed very willing to learn and appropriately outraged by what I had been through. I found him to be very consistent initially. He kept me informed as to regular status updates. He and his secretary worked with me side by side when I had to prepare for depositions and write out my answers to interrogatories submitted by my stepfather's counsel. Shortly after submitting the interogatories and having all those painful memories stirred up I was hospitalized for the first time for symptoms of Post Traumatic Stress Disorder and Depression and he was supportive through that as well.

It was in the late fall of 1992, that he told me we should be put on the trial docket at any time and he asked me if I felt able and ready to proceed. I assured him that I did and he himself conferred with my therapist and told her I'd done a "masterful job" at my depositions and that he felt confident in our case. Weeks went by with no word which was quite unlike him. So I called and was told by his wife that he'd get back to me and he did not. I figured he was busy with the holidays and trying to wrap up some loose ends before the holiday break so I was not too alarmed at this point. Finally, in April of 1993, while on vacation from my full time job I took it upon myself to call the Superior Court in my city and see if we'd been placed on the trial docket. The lady hesitated briefly and then said "Lori, I can't believe he hasn't told you." I asked what she was talking about and she informed me that the attorney had failed to submit a witness list several weeks beforehand and so the judge gave him a 15 day extension which he also missed. The case was then dismissed "with prejudice" which meant that I could not re-file the same exact suit against my stepfather but could do so only if I included new memories. To say I was stunned and devastated is an understatement! I got off the phone, called my attorney, he called back and actually tried to minimize what he'd done. He pointed out there'd been a death in his family and I expressed my sympathies but he tried to tell me that he "thought he'd mailed it from there" and then said that if I'd give him a chance it was no big deal and he "could probably get it reinstated." I called my therapist and she gave me the name of another attorney which I hired immediately. We then appealed the dismissal of the case against my stepfather and went for that hearing several months later only to lose because we found out that my old attorney had been missing deadlines just months into the case against my stepfather and I'd never been told about it! My only option at that point was filing a malpractice suit against the old attorney which I was advised to do and ultimately did. I prevailed on that case but am STILL trying to collect and he has made it very difficult--including moving to a state where one cannot garnish wages except in cases of child support. Most recently he moved yet again--this time to a commune in New Mexico.

I believe that the laws should be changed so that a plaintiff can not be held accountable for information he or she was not previously made aware of! If I had known that this attorney had missed important deadlines in my case, I would have been on top of that immediately and made the appropriate decisions up to and including firing him and hiring another attorney before such damage could be done! The courts should have procedures in place once a deadline is missed that both the plaintiff and defendent as well as their counsel is made aware of such things since it could ultimately jeopardize the entire case. Granted, this would take more paperwork and require more manpower but in cases such as these, where a pedophile was NOT held accountable in a court of law SOLELY due to the negligence and malpractice of an attorney, I believe it would be well worth the effort! In my case, a previous ruling stated that "were it not for the action and inaction of my attorney" I would have prevailed in the underlying action against my now former stepfather. As it stands now, he never had to show up for the trial against my attorney. He never had to defend himself in a court of law against those charges. And I am still trying to collect a very large judgement as the result of winning the case against my attorney. Was justice served? I'll leave that decision up to you.

Lori D'Amico