When you retain a lawyer to represent you in a lawsuit or other legal matter, you have the reasonable expectation that the attorney will protect your interests and carry out their professional responsibilities to you with due care. Certainly, you should not have to worry about whether your law firm will file your lawsuit or other claim on time, or if it will meet other important filing deadlines on your behalf.
Filing a lawsuit late
Unfortunately, it is all too common for lawyers to negligently miss their clients’ crucially important legal deadlines. The first to come to mind is that failure to file a complaint with the court in a timely manner can extinguish the client’s right to bring that lawsuit at all.
An attorney could miss a lawsuit filing deadline because they are disorganized or their scheduling and tickler system is inadequate or ignored. Or they could calculate the statute of limitations inaccurately.
Failing to correctly calculate the filing deadline
The statute of limitations is the amount of time from an injury or other harmful event that the harmed person has to file a lawsuit for that injury. For example, a state statute in the applicable jurisdiction may provide that a plaintiff must file an action for breach of written contract or for mortgage foreclosure within five years of the breach or the first missed mortgage payment, respectively.
Or state law may require that a person injured because of someone else’s negligence (whether physically, mentally or financially harmed) bring their suit within four years. While that sounds straightforward, it can be legally complex. Does that mean four years from the date of the injury, from the date the victim discovered the injury or the date that person should have known of the injury?
An attorney’s duty of care includes allotting sufficient lead time to conduct factual and legal research on any gray areas in the limitations period. Only then can the law firm appropriately flag and meet the correct filing deadline.
And even when timely filed, a lawsuit will have other crucially important deadlines such as timely serving the complaint on opposing parties; filing motions, affidavits and briefs on time; or providing appropriate notice of which witnesses will have depositions or need to testify; and many others. Missing these kinds of litigation deadlines can cause important testimony or other evidence to be excluded from trial, or crucial written arguments or submissions to be missing from the record or court file.
Other legal deadlines
It is not only missing deadlines in the client’s lawsuit that can harm them. Almost any area of law revolves around deadlines in some way. For example, a lawyer could miss the deadline for a creditor client to file a claim against a deceased debtor’s estate or in a debtor’s bankruptcy proceeding. Or the attorney might forget to file a mechanic’s lien on time with the local recorder’s office. A law firm could give the wrong advice to a client about the filing deadline for their workers’ compensation claim or about lodging a complaint of employment discrimination with a government agency.
The bottom line is whether the attorney in question breached the duty of reasonable care to their client when they filed something late. If this happened to you, talk to a legal malpractice lawyer right away to understand whether you have a malpractice or negligence claim against your former lawyer.