When a lawyer fails to file a lawsuit within the statute of limitations, it means the client is forever barred from filing the lawsuit. It means that the lawyer’s negligence or “malpractice” has ruined the client’s case, simply because the lawyer missed the deadline for filing the lawsuit. How could this happen?
There are many reasons why a lawyer may miss the statute of limitations. These include:
- Sloppy internal office procedures
- Suing the wrong parties
- Filing papers in the wrong court
- Not understanding the law that applies to the case
- Not knowing which jurisdiction applies to the case
If a lawyer misses the statute of limitations on a case that had merit, then the lawyer will be liable to the client for the value of the damages which the client would have won in the underlying case if it had been filed on time. Let’s look more closely at the different ways lawyers commit malpractice by missing the statute of limitations.
Sloppy Office Procedures
Many lawyers are so busy trying to get new cases, they fail to pay attention to the cases they already have. They fail to develop and maintain accurate office procedures for managing their caseload and for monitoring the deadlines on each file. When a lawyer has five or ten files, a caseload may seem quite manageable. But when he gathers more than 100 files, and begins filing lawsuits and motions and going to court on a regular basis, the lawyer will need to develop a highly precise calendar system to track every single date and deadline in every single case. Many different software programs are available for this purpose. Still, the programs are only as good as the people using them – if the lawyer and his staff are not keeping track of deadlines, then a mistake may occur.
Sloppy office procedures include not communicating with clients on a regular basis, not answering phone calls, not sending out letters or responding to letters on a timely basis. Failing to gather important records, such as police reports and medical records, losing and misplacing records and files, and allowing the file to gather dust as time slips by are all examples of negligent office habits that could turn into a malpractice case. If the lawyer is pre-occupied by a busy court schedule, and he’s behind in opening his mail and tending to his calendar and other deadlines, he may very well overlook the fact that the deadline is about to expire for filing the lawsuit in his client’s case. This deadline IS the statute of limitations. If the lawyer misses the deadline, there is NO WAY BACK! And it will be nothing more than the lawyer’s carelessness – his sloppy internal procedures – that got him in trouble.
The Law Offices of Mark S. Guralnick targets those law firms that negligently handle their client’s affairs and miss the statute of limitations. We show exactly where things went wrong, by reconstructing the file and demonstrating how the client would have recovered damages had the lawyer properly filed the lawsuit on time.
Suing the Wrong Parties
Another common situation we see are lawyers who miss the statute of limitations because they sued the wrong parties. In effect, they missed the deadline to sue the proper parties because they sued the improper parties and failed to correct the lawsuit before the statute of limitations ran out. This is truly a shame because the lawyers filed the lawsuit on time, but they negligently failed to consider who they were suing—and that negligence cost their clients the right to recover any damages.
Malpractice occurs when lawyers fails to conduct a thorough investigation before filing a lawsuit to determine who should actually be sued. For example, a lawyer may misunderstand which doctors or nurses were involved in a medical malpractice action, and in so doing, may mis-identify the parties in their medical malpractice case, thus committing legal malpractice. In an auto accident case, they may fail to obtain the police records or the follow-up investigative records, and may fail to name ALL of the potentially liable parties in the accident. These omissions may likewise lead to a legal malpractice lawsuit.
The Wrong Court
Yet another problem is when a lawyer misses the statute of limitations because he or she files a lawsuit in the wrong court. If a lawyer inadvertently files a lawsuit in a federal courthouse instead of state courthouse, or in the wrong county courthouse, the lawyer may subsequently find that the lawsuit is dismissed for lack of jurisdiction or for improper venue. By the time this occurs, the statute of limitations may have expired, preventing the lawyer from re-filing the lawsuit in the proper court system.
While such accidents do happen from time to time, and may be attributable to nothing more than a misunderstanding by a law office employee or a filing clerk or courier service, it is ultimately the attorney’s duty to supervise every aspect of the case – from the drafting of the lawsuit to the filing of the lawsuit and every step thereafter. The attorney must micro-manage these important steps of the process, because even a minor mishap can foredoom the client’s case and lead to a malpractice action.
Not Understand Which Statute Applies
Lawyers also get in trouble by assuming that one size fits all – in other words, by assuming that the statute of limitations is always the same for all cases. Lawyers who simply don’t understand the law, or who don’t care to research the law, place their own clients at high risk, by exposing them to malpractice. They may mislead their clients into believing that there is a long statute of limitations for certain kinds of personal injury cases when, in fact, there is a much shorter limitations period. Here are two examples of malpractice cases we have handled where lawyers simply did not understand the law:
- A client was injured on a cruise ship that originated in Florida. The lawyer advised the client that she had a four-year statute of limitations to file suit against the cruise line, in accordance with Florida law. This was incorrect. Under maritime law, the cruise law was permitted to set its own one-year statute of limitations for presenting a personal injury claim. The lawyer, in this instance, failed to file a claim within the one-year limitations period. Our law firm, therefore, presented a malpractice case against the lawyer and successfully recovered damages for the client’s personal injuries from the lawyer.
- A child was injured on an international flight that originated at New York’s John F. Kennedy Airport. The lawsuit against the airline was filed approximately 30 months after the incident occurred – within New York’s three-year statute of limitations. However, it was NOT New York’s three-year personal injury statute of limitations that applied to this case, but rather the two-year statute of limitations set forth in the international treaty governing air travel (Article 35 of the Montreal Convention).
While statutes of limitations may broadly cover general areas of law such as negligence, contracts, and insurance claims, they do not comprehensively or universally apply to each and every possible kind of personal injury claim with the same limitations period. Attorneys must be vigilant and inquisitive; they must question any fact situation presented by a client that suggests a potential variation in a conventional statute of limitations. Lazy lawyers who assume one size fits all – that, one statute of limitations works for every kind of case – should be avoided.
The Wrong Jurisdiction
Not filing in the proper jurisdiction can also lead to the dismissal of a client’s case. When a lawyer mistakenly files a lawsuit in the wrong state and allows the statute of limitation to expire, he may have no way to correct the situation when the lawsuit is dismissed by the judge in that state.
Consider, for example, a car accident case in which the lawyer’s client is seriously injured. The accident occurs in Pennsylvania, but neither the client nor any other driver in the accident resides there. Four other drivers in the accident each come from four different states. The lawyer sues the driver who he believes to be most negligent in causing the accident, and he files the lawsuit in Florida three years after the accident date. The Florida courts, however, refuse to take jurisdiction over the other drivers involved in the accident, and the statute of limitations for suing each of them has expired in each of their states (including in Pennsylvania, where the statute is two years for personal injury claims).
In this unfortunate scenario, the lawyer did not carefully consider which jurisdiction(s) were most appropriate for filing suit (and in consideration of their applicable statutes of limitations).
The Law Offices of Mark S. Guralnick concentrates its specialized team of professional liability attorneys on helping victims of legal malpractice and attorney negligence. If you have been a victim of a mishandled legal claim, please feel free to contact our office for a free evaluation of your case at 1-866-337-2900.