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Chicago Partner Obtains Summary Judgment in Legal Malpractice Matter

On November 29, 2017, Litchfield Cavo LLP’s Chicago partner Paul A. Ruscheinski obtained summary judgment in the Circuit Court of Cook County in a legal malpractice matter. Plaintiff sued his former attorney alleging that in addition to defending against criminal charges from a confrontation with the Chicago Police Department, the attorney was also hired to file a civil case against the police, and failed to do so within the statute of limitations for a state law claim. The plaintiff alleged his former attorney repeatedly stated that a civil lawsuit would be filed, and it never was.

In the underlying matter, the plaintiff while on parole launched an unprovoked attack on several bus riders, and then confronted a responding police officer by charging him multiple times–even threatening to kill the officer. After refusing to respond to the police officer’s multiple attempts to calm the situation and during an attempt to tackle the officer, the plaintiff was shot. The plaintiff’s mother hired the plaintiff’s former attorney to defend against the impending criminal charges. Despite the plaintiff’s mother calling his former attorney’s office only one month later seeking a referral for a civil case, the plaintiff alleged that his former attorney was hired for this purpose and had a duty to file a civil lawsuit.

The plaintiff replaced his former attorney just before the two year statute of limitations expired for a federal Section 1983 claim but after the one year statute of limitations for a state case expired. The plaintiff’s successor counsel filed a timely federal Section 1983 claim, but inexplicably abandoned it and advised the plaintiff it would have been better to be in state court.

Whether or not the plaintiff’s former attorney was hired to file a civil case amounted to “he-said,  she-said” standoff.  Attorney Paul Ruscheinski argued, however, that the plaintiff’s self-serving statements were inadmissible because they were contrary to the remaining evidence in the case. Therefore, the former attorney never possessed any duty to file a civil case, and Paul Ruscheinski persuasively argued that the successor counsel’s failure to prosecute the timely filed Section 1983 case was the independent and superseding cause of the plaintiff’s damages.

Following oral arguments, the court granted summary judgment reasoning that the former attorney did not owe the plaintiff any duty after the time he was replaced. Critically, the plaintiff still possessed a viable action against the police at the time the attorney was discharged. There was no genuine issue of material fact that plaintiff’s failure to prosecute the timely filed federal Section 1983 case was the independent and superseding cause of his damages.