When you file a motion for continuance, you are telling the court, your client, and opposing counsel that you are not ready for trial. This engenders risk even for early trial settings. Two of the biggest legal malpractice cases that our firm has handled involved motions for continuance of early trial settings that were denied.
In the first case, the client had purchased defective gear boxes over many years that were installed in its customers’ buildings. The gear boxes failed, causing millions of dollars in damages. In the resulting lawsuit, the gear box manufacturer filed a $10,000 counterclaim for unpaid gear boxes. The court set the case for trial and the client’s lawyer was not ready. He filed a motion for continuance, but the trial court denied it. The manufacturer obtained a $10,000 judgment for the unpaid gear boxes.
Under the legal doctrine of res judicata, the judgment on this small counterclaim barred the client’s claim for more than a million dollars. To make the situation much worse, the client’s lawyer did not disclose to the client what had occurred. The lawyer spent thousands of dollars of the client’s money unsuccessfully attempting to change the result in the trial court. When these efforts failed, the client learned what happened and sued the lawyer for malpractice.
In the second case, the lawyer was hired to represent a rehabilitation hospital after a woman died. The woman’s attorney pled that she had strangled in restraints that were used to calm her agitation and sought $4,000,000 in damages. The defense attorney did nothing to defend the hospital—failing even to serve basic discovery to find out who the plaintiff’s witnesses and experts would be.
As the trial date approached, the defense lawyer filed a motion for continuance. A visiting judge heard the motion and denied it. The case was then tried, and not surprisingly, it was a disaster for the hospital. The plaintiff was awarded $5,000,000—more than she sought in her original petition. In the subsequent malpractice case against the lawyer, our firm interviewed the pathologist who performed the autopsy of the plaintiff. He would have testified that the plaintiff died of natural causes, thus disproving the plaintiff’s theory of the case.
The message is that every trial setting—including an early one—must be taken seriously. By admitting that you are not ready for trial in a motion for continuance, you are putting your client’s fate into the hands of a judge. When that goes badly, Plaintiff’s Exhibit 1 in the legal malpractice case will be your motion for continuance.