Virginia lawyer representing an assistant band director in a personal injury suit mailed the complaint and a check for filing fees of $344.00 on September 2, 2010 to the circuit court. This amount was determined by a staff assistant asking a nearby clerk’s office and not that of the circuit court where the case was to be filed.
The clerk of the circuit court received the complaint and fees on September 3, 2010. On September 9, 2010, the day the statute of limitations expired, the clerk informed the lawyer that the check for filing was $2.00 short – it did not cover a library assessment. The lawyer immediately mailed a check for $2.00 with the result that the clerk, after receipt of the check, filed the action on September 13, 2010. The lawyer dealt with the resulting statute of limitations issue by taking a voluntary nonsuit and refiled the action. The defendant promptly moved that the case be dismissed because the initial complaint was not filed within the two-year statute of limitations. The Circuit Court judge agreed and dismissed the case. The Virginia Supreme Court affirmed the lower court’s dismissal. (Landini v. Bil-Jax, Inc., Supreme Court of Virginia, Record No. 140591, Circuit Court No. CL12-062 (unpub. order) (1/30/2015))
You cannot make this stuff up. Why would a staff assistant not check with the clerk of the circuit court that had jurisdiction over the case? Why would a filing fee deficiency be mailed on the day that the statute of limitations expired? Was it assumed that the clerk filed the action without the entire filing fee being paid? What kind of docket control were they using? Why wait until seven days before the statute of limitations expired
to file the suit? What were they thinking? How will the lawyer defend the $2.5 million malpractice claim that he is sure to receive? Will he argue, “Aw shucks the claim was only worth about $25,000?” Good luck with that.
We hope that this could never happen to you – but it just might. Lawyers Mutual has had claims based on court clerks allegedly failing to file mailed complaints, mortgages, and other legal documents either in a timely manner or not at all. In one case the clerk’s office was in the process of moving when the mailed document should have been received. In other cases the clerk’s position was that the mail was never received. The result is that deadlines and statutes of limitations are missed and unrecorded mortgages go unnoticed until it is too late to avoid a claim. Without irrefutable evidence that the document and filing fee were timely received by the clerk, a lawyer has little defense against a malpractice claim. Ultimately, it is always the lawyer’s responsibility to determine that mailed documents are received and filed or recorded in time.
HOW DOES YOUR FIRM RISK MANAGE OUTGOING MAIL?
RECOMMENDED OUTGOING MAIL RISK MANAGEMENT PROCEDURES
Every practice should have tight control procedures for outgoing mail:
None of this is rocket science. It is much harder than that. It requires constant attention to detail by docketing time sensitive outgoing mail and e-mail for follow-up to assure that they were received in a timely manner by the right addressee and, when a filing fee is involved, that the fee was deposited.
If the fee is not deposited in the regular course of business, you are on notice that something is amiss requiring prompt action. Never, never send by regular mail or e-mail any time sensitive document when there is not enough time to get the irrefutable confirmation that it was received on time. Following this rule could save you from a malpractice claim and a major out-of-pocket expense.