Should I add my former attorney as a defendant in a personal injury case in NY?

May 19, 2014

Question

I am a plaintiff in a personal injury case in NY State supreme court. My former attorney withdrew after I refused to overstate my damages as he wanted. He told me that he could not find an expert to support the case. However, he did file the NOI (which requires that the attorney has consulted with a medical expert who has affirmed that there was deviation from standard of care) and then failed to reply to a SMJ motion. I vacated
I found five medical experts who were willing to testify that there was a deviation. I retained two who gave written affidavits. I motioned the Court to reinstate the medical malpractice part of the claim (only the lack of consent claim is viable at present),I have a trial date for the lack of consent case. SHould I add my former attny as def. at this stage or waitI have not been able to reinstate the med mal part of the case. I may not be able to undo that part at all.

Answer

As my colleagues have said, you probably don't have a claim against your former attorney because you cured the problem yourself. I'm just speculating because I don't know what happened here, but the expert your attorney originally consulted could have backed out, got ill, moved, or retired etc., so he's not necessarily being untruthful, but you successfully moved to vacate the SJ Order, and that's quite an accomplishment. Are you representing yourself at trial too? What are you going to do when you have to take the stand and testify yourself? You might want to consider engaging trial counsel.

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