Failure to Anticipate Judicial Error Not Malpractice
A Michigan court has decided that a lawyer's failure to raise a meritless statute of limitations defense did not give rise to a malpractice claim. The lawyer failed to assert the defense in a child support action because the parent had made partial support payments, which renews the child support obligation under Michigan law. But when the parent was arrested for failure to pay child support, the family court judge erroneously raised the statute of limitations defense sua sponte and released the parent.
The Michigan Court of Appeals held that the lawyer had no duty to foresee and exploit the court's error. More interesting is the court's statement that the lawyer would not have been guilty of malpractice even if the statute of limitations had been a valid defense. It seems the court would have considered failure to raise the defense to be an honest and reasonable mistake.
Does the reasonable mistake defense apply in Tennessee? I'd rather not test that theory.
For more information see this post in the Family Law Prof Blog, and this copy of the opinion.