The Risk Manager, Winter 2017
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.
Docket Control Systems
One of the best risk management checklists for calendar and docket control is offered in the Risk Management Handoutsof Lawyers Mutual of North Carolina:
- Docket czar. Appoint one staff member as docket control coordinator.
- Statute of limitation. A new client cannot be accepted and a new file cannot be opened on any plaintiff litigation until a statute of limitation date has been established. The new matter/client intake sheet should contain a line for the statute of limitation date, with a signature line next to it. Each date entered on the sheet should be verified by the responsible attorney and initialed. Copies of the sheet should then be given to the person responsible for the central calendar and to the responsible attorney. The system should provide ticklers at least 180, 90, 60 and 30 days before the statute of limitation date. When you have a client whose injury occurred in another state [e.g. a car accident that took place in Virginia or Tennessee], be sure to determine the correct statute of limitation for that state before entering the deadline into your system.
- Statute of limitation follow-up. One system is to have one attorney in the firm assigned the responsibility for following up on all statute dates. The follow-up attorney should receive a printout each week of upcoming statutes. This attorney should require proof that the suit has been filed such as a copy of the filed complaint. Firms have been stung by malpractice claims because one attorney has covered up a missed statute in hopes of later correcting the situation.
- Procedure for incoming mail. Each piece of incoming mail should be date-stamped and reviewed for dates that need to be calendared, such as deposition dates, tax payment dates, etc. Those dates should then be placed into the central calendar. The clerk reviewing the mail should initial each date calendared for accountability. After the dates are recorded in the central calendar, the mail should then be distributed to the responsible attorney or staff member. The attorneys should calendar all relevant dates in their personal calendars.
- Automatic review dates. After attorneys have completed a specific event in a particular file or matter, they should automatically place a follow-up date in the calendar. This date may be every 30, 60 or 90 days. This system ensures that no file or matter will go unattended for a long period of time.
- Redundancy. Each critical date must be entered in at least two diaries maintained by separate individuals. In the case of a sole practitioner, the dates can be maintained by the attorney and her secretary. [Editor’s Note: Sole practitioners should also program office computers and mobile devices to automatically show critical dates the first thing each morning.] In the case of a larger firm, the dates can be maintained in a central computer system and in the individual diary of each attorney who is responsible for a particular matter.
- Daily and weekly deadline lists. Each day the coordinator will distribute the docket entry forms calendared for that day. The coordinator can prepare and distribute weekly calendar listings of all deadlines due within the week.
- Advance warnings. The docket control coordinator is responsible for setting up the advance warning dates and putting the docket entry forms into the system. Two advance warnings are recommended for deadlines of 30 days or sooner [for example, two weeks/one week or two weeks/two days]. This may vary if your deadlines are more than 30 days away.
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:
- No new matter is opened without researching statute of limitations periods. Applicable statutes should be noted in the file in writing by a lawyer and a copy of the statute included in the file. If there are none, a note for file to that effect should be made.
- Stamp on the front of the file applicable limitations periods and set reminder notice dates in the firm’s docket system providing ample lead-time to meet limitations periods.
- The responsible lawyer, after meeting a deadline, should record the next deadline on the file and set a reminder notice in the docket system.
- Assign an alternative lawyer or staff member responsibility to see that a response is made to a reminder notice if the responsible lawyer is unavailable or fails to respond.
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.
Not Knowing What You Are Doing
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.
Do not use secondary authority to research limitations periods.
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.
Do not overlook case geography.
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 ].
Do not assume anything when identifying limitations periods.
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.