Representing clients under the age of 18 in civil litigation involves more resources and more procedural steps than representing adults. Intake and client management procedures used in working with adults are not good enough when attorneys are called upon to protect the interests of a child. To get the best possible result for a child, and to avoid trouble, special attention and a customized approach are necessary.
During intake, evaluating a claim related to the injury of a child may have the feel of evaluating an adult’s claim. One or both parents may be present, with or without the child or other children. The parent or parents will undoubtedly be eager to advance the claims and protect the rights of their child. They will sit at the table, anxious to make decisions, feeling certain that they know what is best for the child. However, whether the parents can or should control the case is one of the first and potentially most difficult decisions facing the attorney. The claim must be brought in the name of the adult(s) who can best advance the child’s interests. Competency, financial literacy, and whether the parent has appropriate rights and responsibilities must be evaluated.
As part of choosing the child’s proper “next friend,” all potential defendants must be identified. Too often, attention is focused on a single principal wrongdoer. There may be other independent, culpable defendants who are jointly responsible. Parents may overlook their own responsibility for harm done to the child. A spouse may be “third-partied” into litigation under a theory of negligent supervision or pursuant to a vicarious liability motor vehicle statute. Will that create a conflict of interest for a parent advancing claims on behalf of the child? Negligence claims against a landlord or contractor for a faulty porch or unsafe window may trigger a negligent supervision claim against the parent. Parents who put children in a car seat may not realize that they are subject to a contribution claim for their misuse of the car seat, for their own driving, or perhaps even for failing to make good decisions about medical treatment.
Liability conflicts of interest are not the only problem. Under the Bar Rules, a lawyer cannot advance the interest of one client against the interests of another. Therefore, in the situation where limited insurance proceeds must be shared by multiple parties, it may be appropriate to either find a different attorney for each family member or find another appropriate way to apportion damages. Researching available liability insurance coverage and underinsured motorist coverage is part of that process. Understanding the full impact of the injury on the child may take months, or even years. Being sure that no stone is left unturned may require a significant financial investment.
Setting the right course early may require financial resources beyond just the cost of investigation. Hiring a guardian ad litem for the child in select cases, for example, may ultimately become critical to success on liability and damages. This need arises where the fact-finder is likely to want assurance that the child’s resources will be properly protected from well-meaning but short-sighted family members. Early steps to eliminate such problems will inspire confidence in the parents that they made the right choice of counsel and that the child’s lawyer has the resources necessary to succeed with the case.
Parents who intend to represent the interests of a child must be educated as to the Rule 17A requirement that settlement funds must be placed in a secure account bearing “the highest possible interest rate” and that funds may not be withdrawn without court approval until the child reaches the age of majority.
Counsel must also project forward. What will the settlement be worth with interest at age 18? Will the claim gain value by waiting until the child is older and damages accrue, or should the claim be resolved sooner because a structured settlement or compounded interest will yield the highest result?
Talking with the family about a realistic timeline will help the child’s claims stay on track. Maine’s generous statute of limitations for most minor claims can be beneficial, but also carries a risk that the family or counsel may delay action until a deadline is too close. The passage of time can mean serious trouble if key witnesses disappear or other evidence is lost. Keep the case on course with benchmarks and accountability checks that the client, parent, and attorney are responsible to meet.
Statutes of limitation should always be researched thoroughly and appropriately calendared. The most common statute of limitation is six (6) years after the eighteenth (18th) birthday. Medical malpractice limitations are the earlier of either three (3) years after the eighteenth (18th) birthday or six (6) years after the negligence. Maine Tort Claims Act claims are two (2) years, but the statute is tolled during minority. Consider all liability theories when researching statutes of limitation. Even if the primary liability theory in a child’s case is that a defendant was negligent, other theories, such as assault, defamation, and battery, may be viable. Steps must be taken to protect the child’s right and opportunity to pursue them.
If the case is to be settled under Rule 17A, the Court is required to scrutinize the settlement documents prior to granting approval. Recent experience shows that children need greater levels of protection than our system has provided in the past. Courts are aware of and sensitive to numerous instances in which children discover, upon reaching majority, that settlement funds that were supposed to have been protected and secure have been dissipated or outright stolen. As a result, judges are increasingly careful about approval of infant settlements and related legal fees.
Pursuant to Rule 1.15 of the new Rules of Professional Conduct, simply retaining the file for 8 years after settlement is not enough to meet counsel’s ethical obligation. The better practice is to retain the file for 8 years after the client turns 18, or after the last payment of any structured settlement is made, to be certain that the original documents are “safeguarded until such time as they are out of date and no longer of consequence.”
In all of these cases, everyone involved wants to be able to look back, years after settlement, with confidence that all available options were considered and that wise decisions were made about how to protect the child’s interests. That is best accomplished through careful communication, client education, avoiding common conflicts or the appearance of conflict, hiring appropriate outside professionals, and good record keeping.