There is a disturbing increase in claims for missed time limitations, both judicial and administrative. When a case dispositive time limitation is missed there is little the negligent lawyer can do except hope there were no damages – not likely. Reasons for the missed limitations include inadequate docket control systems, failure to properly use a docket control system, dog cases, and not knowing what you are doing.
One of the best risk management checklists for calendar and docket control is offered in the Risk Management Handoutsof Lawyers Mutual of North Carolina:
Everyone has input. The system will succeed only if everyone participates and makes it work. In addition, we recommend this procedure for manually risk managing client files to avoid missing time limitations:
Dog cases are those litigation cases lawyers take knowing they are weak, but hoping they will develop into a worthwhile undertaking. As so often happens they do not improve with investigation and linger on as an active case going nowhere. Too often lawyers then procrastinate on practicing the case with the result they suddenly find that a time limitation was missed. The case for the lawyer that was a dog case now becomes a lucrative malpractice claim for the client. One experienced Kentucky lawyer advises: “The best approach is to take your medicine. Quit procrastinating, do the discovery, set the case for trial, try the case, lose the case; i.e., clean up your own mess. After all, you took the case!” All we can add to this good advice is to meticulously use your docket control system to keep up with all limitations periods to protect yourself from the dog cases you never should have taken.
The most important word in the practice of law is competence, i.e., knowing what you are doing. Avoiding missing time limitations depends on a lawyer’s competence in accurately identifying limitations periods, recording them in a docket control system, and then applying the docket controls with no exceptions. Identifying limitations periods is usually a straightforward matter of researching the applicable statutes, regulations, and rules. What follows are examples of how lawyers can trip over this seemingly easy task.
Some brave souls publish statutes of limitations practice guides. Assuming these guides are accurate in the first place, they are virtually out of date the moment they are published. Limitations periods are subject to change that secondary sources are hard put to timely supplement. Never use secondary authority or prior case files to identify limitations periods – always go to the governing statute, regulation, or rule. Always check to be sure there are no current or prospective changes to these authorities.
In Kentucky we understandably focus on Kentucky law when representing a Kentucky client. This focus, however, has caused more than a few lawyers to apply Kentucky limitations periods when the facts show that another state’s limitations apply. If the client’s cause of action accrued in another state, that state’s limitations period control if shorter than Kentucky’s [see KRS 413.320]. Seven states border on Kentucky, each with their own limitations periods. A Kentucky lawyer’s chance of having a Kentucky client with a case arising in one of those states is good. Be sure you know your case geography and where and when the cause of action accrued. Carefully research limitations periods as well as the “borrowing” statutes of the states involved [See Abel v. Austin, 411 S.W. 3d 728 ].
Case in point: A California law firm dodged a bullet when a client advised the firm that it was suing for malpractice. The firm advised the client that it must withdraw as counsel and that the firm’s attorney-client relationship with the client “is terminated forthwith.” The firm then asked that the client advise immediately where to send the client’s files. The client responded by telling the firm to send the files to a successor counsel. This was done seven days later. The successor counsel then violated the one-year statute of limitations for filing a malpractice case against the former firm by one day. Successor counsel “assumed” the seven days it took to forward the file tolled the statute of limitations. The court ruled that the administrative function of transferring client files to successor counsel was not legal services:
If client actually believed that [the former] firm … would continue to provide legal services by transferring its files to replacement counsel, its belief was unreasonable as a matter of law. [The former] firm made clear in its email that it would not provide further legal services. The transfer of the files was a clerical, ministerial activity
The Court then added this zinger:
The record does not show why [the successor] firm … waited until what it believed was the “eleventh hour” to file the malpractice action. We agree with the trial court that it waited too long. GoTek Energy, Inc.,v. SoCal IP Law Group, LLP, 2016 BL 339640, Cal. Ct. App., 2d Dist., No. B266681, 10/12/16
Don’t be a “time optimist.” Time is usually not on a lawyer’s side. It is astonishing how many lawyers optimistically wait until the last day to file an action, appeal, or request for reconsideration before a time limitation period is violated. In GoTek Energy the client is in good shape – it now has an excellent malpractice claim against successor counsel.