By Steven H. Schwartz
As published in the May 2023 edition of Missouri Lawyers Weekly
Missed statutes of limitations and other deadlines are one of the most common causes of legal malpractice claims. There are many reasons lawyers miss statutes of limitations. I put these into three categories (but there can be other causes): poor diary systems, taking the uncomfortable case, not knowing all the facts or the law. I will address each of them below:
Poor Diary Systems
Oftentimes lawyers are sued because someone merely neglected to diary a critical date, or the lawyer failed to look at their calendar. A good diary system is critical to every legal practice. A diary system is more than a paper or electronic calendar. It requires properly trained people to consistently populate whatever paper or software system you are using. In 2023, it is certainly preferable to use a computerized diary system with electronic reminder notifications that go to your computer, smart phone, tablet, and whatever other communication devices you are using. And, you should have redundant systems. Don’t rely on just one system or just one person to enter the data and remind you. If you are relying on computer software, make sure it notifies you in more than one place, or use two types of software to notify you of each event, or use a paper backup. It is best to have another lawyer or support staff checking the calendar daily to remind you of deadlines, in case there is a computer glitch, or you forgot to check your calendar. There cannot be too many double or triple checks and reminders.
Taking the “Uncomfortable Case”
Sometimes lawyers take cases when they suspect their client is not telling them the whole story or, for other reasons, they know the case is going to be difficult to win. I call that the “uncomfortable case.” The lawyer takes the case but has a queasy feeling in the pit of their stomach when they think about it. Some lawyers take those cases and tend to put them on the backburner. They may have three years left on the statute of limitations, so they don’t spend much time collecting medical records right away, they let time pass and, before they realize it, time gets away from them. This can lead to a disastrous outcome. The lesson from this is, either don’t take those cases or, if you are going to take the case, do the opposite of your inclination to put it on the bottom of the to-do list. Staff it up and jump on it right away. Interview your client in-depth, verify the date of injury or the date the statute of limitations began to run, collect the medical records, and do whatever investigation you need to do to determine if the case is winnable or not. If you don’t think the case is worth pursuing, find that out in enough time to let the client find another lawyer without jeopardizing the client’s rights. Don’t wait until the last day of the statute of limitations to file suit. Try to settle the case or get it on file early and get the ball rolling. Getting it resolved early is better for you and your client.
Not Knowing the Facts or the Law
Sometimes lawyers miss the statute of limitations because they don’t do enough investigation to determine when or where the cause of action accrued, and what causes of action accrued. For example, in Missouri, in most situations, the two-year statute of limitations for medical malpractice begins to run when the patient was last treated by the medical professional. If a client comes to your office and says they last saw their doctor exactly 11 months ago, you would assume you have more than one year to file suit. However, what if the patient’s memory is off by a year, and they actually saw the doctor one year and 11 months ago? It is best not to rely just on your client’s memory for those critical dates but to verify them by getting the medical records. However, that can take some time so, in the interim, you should summarize your meeting with the client in a letter or email to the client so that you have a record of your meeting.
Another problem can arise when the lawyer does not consider all the causes of action. For example, a workers’ compensation lawyer may sign a retainer agreement with a client that states the lawyer is going to represent the client regarding the workers’ compensation claim only and not with respect to any third-party tort claim. However, even with that agreement, the lawyer may still have an obligation to warn the client about the statute of limitations for any other potential claims arising from the same accident so the client can hire other counsel in sufficient time to preserve those claims. Thus, at minimum, the lawyer should give a blanket warning that there may be other claims and explain the statute of limitations, or the lawyer should identify those claims and let the client know when the statute of limitations may expire. The same situation may apply when a lawyer is hired to obtain an order of protection for a spouse who was assaulted by the other spouse. Even if the lawyer is not hired to handle any tort claims, the lawyer should warn the client in writing about the statute of limitations on any potential tort claim.
Finally, a lawyer may miss the statute of limitations if they are not familiar with the law. Most lawyers who practice regularly in Missouri know the statutes of limitations in Missouri, which are, in general, fairly long. However, Missouri’s neighboring states, Kansas and Illinois, both have shorter statutes of limitations. Therefore, if a Missouri lawyer is representing a client who has a claim that arose in another state, it is critical that the lawyer consider the statute of limitations in that state and warn the client about that deadline. Also, there are special statutes of limitations and early notification requirements that apply to federal, state and local governments. Thus, lawyers representing clients who may have to make a claim against a government entity (for example, someone who was hurt on government property, or a government employee hurt at work) must become familiar with those special rules.
These are just some of the pitfalls to watch for to avoid missing statutes of limitations and other deadlines. Doing so will help lawyers avoid malpractice claims.
Steven H. Schwartz has defended lawyers in legal malpractice cases, malicious prosecution cases and ethics complaints for more than 30 years.