Allowing a statute of limitations (SOL) to run on a client matter has always been a common malpractice error and I really don’t see that changing. One would think that with the rise of computerized calendaring systems there would be a decrease in the frequency of these types of errors. Unfortunately, it hasn’t played out that way. In fact, nowadays malpractice carriers classify some of these claims as a failure to respond to the calendar. The calendaring system worked; but for one reason or another, the attorney just didn’t get the job done. It happens. If statute of limitations dates come into play in your practice, here are a few thoughts shared for the purpose of helping you avoid becoming one of the many who have blown a filing deadline.
- Independently verify facts relevant to SOL dates and identify the correct defendants from reliable sources in every instance. For example, verify accident dates from police reports and ascertain who the owner of the involved vehicle is because it may not be the driver of the other vehicle. Thorough investigation from reliable sources is the only way to ensure accurate information. Clients and the persons to whom they talk, for example physicians, may not be dependable sources of information. It is imperative that you understand the importance of conducting a thorough investigation as well as have the ability to make the determination as to the reliability of all information obtained. You must also have a working knowledge of the statutes and their application in the various state and federal courts. This is particularly important when declining representation because you do not want to specify when a SOL will run in a non-engagement letter if you are relying solely on client memory. If they are wrong, or you are not given all of the facts, you will be wrong on the legal advice given as to when the SOL date is to run. Finally, if you don’t have time to do all of the above, just say no.
- Don’t delegate what is your responsibility. Make certain that you are the one always responsible for making the legal decisions as to when the SOL will run on any given matter. Although many attorneys will claim otherwise, the reality is support staff often routinely establish SOL dates and the attorney reviews the date for statutory accuracy. As the attorney, you are well advised to take the time to note the jurisdiction, the venue, the parties involved, the type of case, verify dates and then go to the statutes each and every time to determine applicability and look for exceptions. Following through on this procedure can significantly reduce the likelihood of an error occurring when setting the statute of limitations date.
- Use reminder dates for all critical date calendaring. There will never be a good reason to claim surprise when it comes to an approaching SOL deadline. Place reminder dates in the calendar well in advance of approaching deadlines in order to give yourself more than enough time to complete the necessary work in a thorough and professional manner.
- If you decide to withdraw, do so promptly. In a perfect world you should try to withdraw at least six months prior to when the SOL will run. Inform the client of your withdrawal in writing and clearly advise the client of the applicable SOL deadline. Waiting until the last minute to withdraw increases the likelihood that the client will end up missing the SOL date and subsequently turn to you for recovery. This is the one situation where specifically stating when the SOL will run is advised because a thorough investigation of the matter has already occurred. On the flip side, try not to accept new cases at the eleventh hour as there is an increased risk of problems arising simply due to the lack of time to properly investigate the matter.
- Institute a diary system that allows you to review each and every file every thirty to forty-five days. One disadvantage of any calendaring system, docket control system, and file setup process is that they create an unwarranted reliance upon their accuracy. Remember that a human being has updated the calendar, placed an entry into the docket system and created the file and mistakes will occasionally occur. Worse yet, sometimes redundant systems simply multiply the number of places an error is recorded. Best practices dictate that each and every file be reviewed on a routine basis. When doing so, be certain to double check dates, independently verify all key facts, prepare necessary documents well in advance of approaching deadlines, and contact the client so that they don’t feel forgotten about.
- File suit early and follow up with service of process in a timely manner. Never get to within thirty days of the SOL date without having filed suit. Last minute filings are playing with fire because there is no room for error. Do not put off the paperwork or service of process hoping to reach a settlement at the last minute. Unexpected events such as illness, computer failure, the discovery of an incorrectly calendared date, office vandalism, weather events, and accidents on the way to the courthouse are all actual examples of what can go wrong. Play it safe and smart. If you discover you have named the wrong defendant, for example the defendant was a person and not a corporation, there will still be time to remedy the situation. In fact, a number of firms require that all firm attorneys file suit thirty days in advance of the SOL date and set reminders from that date as a way to ensure that no SOL date will ever be missed. I strongly suggest you consider following their lead.
- Standardize your firm’s calendaring procedures and develop a calendaring guideline that sets forth all critical dates that might arise at your firm and describes the desired approach to responding to these dates. Standards can include the type of acceptable primary and redundant system an attorney or staff member might use individually, and should require data entry into the firm’s various master calendar and docket systems. Standardization allows staff personnel to calendar confidently as they back up each other, allows the firm to monitor compliance to calendaring guidelines, provides assurances that no deadlines will be missed due to regular use of reminders by all, and provides an assurance that filings occur well ahead of deadline dates.
As a Risk Manager for ALPS, Mark Bassingthwaighte. Esq. is responsible for developing and delivering new risk management and CLE products and services, risk management consulting, law firm risk evaluations, and writing content for the ALPS 411 blog at: www.alps411.com. In his tenure with the company, Mark has conducted over 1,000 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the United States and written extensively on risk management and technology. Mark received his J.D. from Drake Law School. He can be contacted at: email@example.com