Today, Oregon's Court of Appeals let a defense lawyer get away with a mistake. The case, Dickey v. Rehder, highlights an interesting unfairness in how Oregon law treats a late filing by a plaintiff compared to a late filing by a defendant.
Mr. Jim Dickey exchanged land for a $250,000 promissory note. When he was not paid, he sued both the wife and the estate of the deceased husband who signed the note. The wife, Ms. Rehder, did not respond in time, and Mr. Dickey's attorney obtained a default judgment against her. Later, the lawyer for the wife asked the court to overturn the default judgment, but did not do it in the right way. The court gave the attorney a "do-over," and eventually lifted the default judgment.
Even though the attorney messed up when trying to reverse the judgment, it was not legal malpractice, because there probably was no harm done (unless he was stupid enough to charge Ms. Rehder for the efforts to correct his mistake). Before one may sue for legal malpractice, the malpractice must cause some damage.
But here's the rub of the case for me. If my client files a lawsuit one day late, then his or her claim is lost forever. No excuses. No do-overs. Even a quadriplegic may not seek justice if she sues one day late.
On the other hand, if the alleged wrongdoers are late in responding to a complaint, the court, nearly always, gives them a second or third chance. Somehow, Oregon law recognizes the unfairness of a defendant losing by default. Yet, it is okay for a defendant to win by default.
Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234
The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.
