When because of someone else’s negligence or bad intentions a person gets injured or suffers another kind of personal harm, or incurs financial or commercial losses, they often choose to hire an attorney to file a lawsuit against the wrongdoer. While this seems like a simple agreement between the client and lawyer, sometimes for any of a number of reasons, legal counsel fails to file the suit on time, eliminating the client’s right to sue and recover damages at all.
This filing deadline is called the “statute of limitations,” “limitations period” or “limitation on action.” Statutes of limitations vary from jurisdiction to jurisdiction and depend on the type of legal claim. As simple as it sounds, determining the correct statute of limitations can sometimes require complex legal research.
Legal malpractice claims for missing statutes of limitation
Not surprisingly, an individual may not only be upset to learn their legal counsel missed the filing deadline, but also may believe that they have missed out on money damages they deserved in the lawsuit. Missing the statute of limitations and thereby foreclosing the client’s suit for recovery is a common basis for a legal malpractice claim.
For an attorney to be liable for malpractice or legal negligence, they must have failed to practice law according to the standard to which a reasonable lawyer would have adhered. It is hard to imagine a situation where missing a lawsuit filing deadline would not fail to meet the standard of a reasonable attorney.
This could occur for many possible reasons:
- Lack of care in maintaining a detailed calendar or tickler system
- Insufficient research into which statute of limitations applies to the claim
- Inadequate investigation into the case that fails to reveal all potentially liable parties and not discovering this until the filing deadline has passed
- Miscalculation of the correct deadline date
- And others
The case within the case
For the client to recover for a missed lawsuit filing deadline, they must first establish that there had been an attorney-client relationship and that when the lawyer missed the statute of limitations, they neglected a reasonable professional duty. The plaintiff in the legal malpractice case may need to call an expert witness to establish the lawyer’s reasonable standard of care in the original claim.
The more difficult issue here is that the breach of duty must have caused the client loss or harm. Here, that means they missed out on financial recovery they would have gotten in the first case if previous counsel had filed it on time.
To show this, the client must prove in the later malpractice suit that if the lawyer in the original suit – the “case within the case” – had timely filed the complaint:
- They would have won that case.
- They would have gotten money damages.
- The amount of those damages is measurable.
An attorney experienced in legal negligence cases can answer your questions about remedies and options when another legal professional failed to file a lawsuit within the limitations period.