"Next friend"

“Next Friend” Lawsuit Creates Legal Problems

We have written before about guardians ad litem. A recent Alaska case reviewed the similar — but different — use of a “next friend” in a civil lawsuit. What’s the difference, and why did it matter in the Alaska case?

Helen’s boating accident

Back in 1993, a 17-year-old boat operator collided with another boat on an Alaskan river. The boat she hit included a pregnant passenger named Helen Bravo. Helen hit the back of her head, briefly passed out and may have swallowed water in the accident.

Helen’s baby was born six months later. Though the birth itself was unremarkable, her daughter Ashley had been assessed as eligible for special education services by her third birthday. She evidenced cognitive difficulties, attention deficit / hyperactivity disorder and other problems during her minority.

Helen apparently had long believed that the boating accident contributed to Ashley’s cognitive and developmental difficulties. Of course, Helen’s ability to file a lawsuit for the injuries would have run out within a few years of the incident itself. But Ashley’s ability to file a lawsuit would not run out until two years after her eighteenth birthday.

Helen files a lawsuit on behalf of Ashley

When Ashley turned 18, the statute of limitations began to run on her possible claim. Just a few days before the statute would preclude any lawsuit, a lawyer representing both Helen and Ashley filed against the owner and operator of the other boat. The lawsuit named Ashley as the plaintiff, and Helen as her “next friend”. Helen signed the lawsuit and managed the legal proceeding in consultation with her (their) lawyer.

Under conventional practice, Helen could simply declare herself to be “next friend” but a court proceeding would ultimately be necessary to settle any lawsuit or receive funds. For the moment, though, no one objected to her “next friend” characterization.

The defendants did, however, object to the merits of the case. Discovery quickly established that medical experts could draw no connection between the boating incident and Ashley’s cognitive difficulties. In fact, the defendants filed a motion for summary judgment — that is, to dismiss the lawsuit altogether. The also asked for Ashley and Helen to pay their legal fees and costs to that point in the litigation.

Just before the court heard their motion for summary judgment, the defendants made an offer to Helen and her attorney. Agree to dismiss the lawsuit, they said, and we’ll agree not to ask for our fees and costs. Ashley would be better off than if she proceeded with a lawsuit that she likely couldn’t win.

Helen refuses to dismiss

Though her lawyer advised her that the “walk-away” offer made sense, Helen insisted that the lawsuit should continue. She made the decision on behalf of Ashley, still acting as her “next friend”.

The lawyer was suddenly in a difficult position. He believed that the “walk-away” resolution was in Ashley’s best interests, and he had a duty to protect her interests. His other client, Helen, was insisting that he go forward with an action that he no longer believed had merit. He had an irreconcilable conflict in duties, and so he moved to withdraw as counsel.

In his motion to withdraw, the attorney noted that Helen was “getting away with” representing her daughter’s interest without any legal authority. She had not been appointed as conservator of Ashley’s estate, or guardian of her person. She had not even been appointed as guardian ad litem — an option available through the court.

The trial judge sympathized with the attorney’s dilemma, and let him withdraw from the case. The judge did not, however, appoint a guardian ad litem, or order a conservatorship or other proceeding to assess Ashley’s ability to make her own decisions. He ordered Helen to get a new lawyer or to proceed without counsel.

The case is dismissed, and Ashley ordered to pay fees

Helen apparently could not find new counsel, and she did not respond to the defendants’ motion for summary judgment. She did file documents with the court asking that her attorney be ordered to return and finish the case; the court declined to require him to pick the case back up. Ultimately, the trial judge dismissed Ashley’s lawsuit and ordered her — and Helen — to pay about $5,000 in costs and attorneys fees.

Helen appealed the court’s resolution. Last week the Alaska Supreme Court reviewed the lawsuit and ordered the trial judge to reconsider the role of “next friend” as it played out in Ashley’s case.

The state’s high court noted that Helen had no legal standing as “next friend”. She had not been appointed as her daughter’s surrogate (as she would have been in, say, a conservatorship proceeding). There had not even been a clear finding that Ashley was unable to make her own decisions.

Once the lawyer withdrew, Helen had no legal authority to file anything in the litigation — including, in fact, the appeal itself. Because the judgment was against her personally as well as her daughter, though, the Supreme Court went ahead and considered the case and remanded it for further proceedings.

The trial judge had plenty of evidence, noted the appellate justices, that there were questions about Ashley’s ability to make her own decisions. He should have conducted some sort of evidentiary hearing and appointed a guardian at litem — or perhaps even insisted on a guardianship or conservatorship filing.

The Supreme Court reversed the dismissal and remanded the case back to the trial judge. They ordered the trial court to reconsider the withdrawal of Ashley and Helen’s attorney. That was intended not to keep him in the case, but to determine whether a gaurdian ad litem or other representative should be appointed for Ashley. Bravo and Bravo v. Aker, January 4, 2019.

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