One of the first things I need to find out from a potential client is when the events took place. That is because virtually all potential litigation causes of action have a strict deadline for commencing litigation (the statute of limitations). The deadline is usually set by state law, though it may be set by the highest court of a state, or by federal law.
Sometimes it is difficult to figure out when the statute begins to run, and other times when it ends. For example, it is easy to know the exact time and place of an accident, but it is not always so easy to figure out when a lawyer’s malpractice occurred. Legal malpractice statutes of limitations also tend to be a bit more complicated because your attorney may have represented you on more than one issue.
While this blog post is not about the complexities of statutes of limitations, I did want to point out one more problem to be aware of: sometimes the statute of limitations changes. Although this is a relatively rare occurrence, it does happen from time to time, which means that whatever you are told by an attorney about the statute of limitations for a particular cause of action, when deciding what to do, be aware that the statute of limitations can change.
In New York this is happened at least twice. For many years, New York courts interpreted the law to mean that there was a six year statute of limitations for legal malpractice claims. However in 1996 the state legislature passed a law making the statute of limitations for legal malpractice three years. Potential litigants who had been relying on the six-year statute of limitations would find that they were out of luck if they brought the case after the new law went into effect.
More recently, the New York Court of Appeals held that the statute of limitations for a violation of Judiciary Law §487 (which exposes an attorney who engages in deceptive practices during the course of litigation to treble damages as well as up to a year in prison) was six years. The state legislature could theoretically change that again. And that ruling does not help the many litigants whose cases were thrown out for decades when lower New York courts held that the statute of limitations for Judiciary Law §487 was three years.
There have been proposals in New Jersey to change the six-year statute of limitations to a two-year statute of limitations.
In other words, when deciding what to do about a claim, you certainly use the statute of limitations as a guidance. However, if you are seriously considering to litigate a particular matter, but decide to delay for whatever reason, you should at least monitor developments in your state for the particular cause of action just in case ythe state legislature decides to change the statute of limitations.
(Click here for a brief summary of my other blog posts on various legal malpractice related issues)
(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)
Copyright (c) 2014 by Howard Altschuler, All Rights Reserved