Statutes of Limitations: Setting the Timer on Legal Malpractice Actions
Many people are unaware that specific laws, called statutes of limitations, set a limit on the amount of time a plaintiff has to pursue most civil claims. A person who fails to file a lawsuit before the limitations period ends may be barred (prevented) from ever filing a suit, pursuing a claim, or recovering damages.
HOW LONG IS THE STATUTE OF LIMITATIONS ON LEGAL MALPRACTICE ACTIONS?
A plaintiff must commence his or her malpractice lawsuit against a former attorney within the earlier of:
1. One year after discovering the facts of the attorney’s wrongful act or omission (essentially, this means within a year after learning that the attorney committed malpractice), or
2. Four years after the date when the malpractice occurred (meaning the date when the attorney committed the wrongful act or omission).
Those are the general rules. However, there are a few exceptions.
EXCEPTIONS TO THE STANDARD STATUTE OF LIMITATIONS
When the malpractice arises from a written instrument or contract which takes effect upon the occurrence of some future event, the statute of limitations starts to run on the date of the event which actually triggers the contract (or which would have triggered the contract in the absence of malpractice, if the malpractice is what keeps the contract from taking effect).
In some criminal cases, the statute of limitations on attorney malpractice is extended, also. However, plaintiffs whose malpractice claims relate to a criminal action or defense should contact a specialist promptly to determine when and if those extensions apply to the relevant case or claim.
Sometimes, in cases where an attorney provided the client with both legal and non-legal services or with nonlegal services alone the statutes of limitations applicable to legal services may not apply. Again, this requires a consultation and evaluation by an experienced malpractice attorney, to determine which limitations period applies to which parts of the plaintiff’s claim(s).
TOLLING – TIMES WHEN THE STATUTE OF LIMITATIONS DOES NOT RUN
Sometimes, the law “pauses” the statute of limitations. The times when the statute is paused, or tolled, do not count toward the time the plaintiff has to file the malpractice lawsuit. Generally speaking, the statutory period for filing a legal malpractice action is “tolled” when:
1. The attorney continues to represent the client with regard to the subject matter or issue in which the malpractice occurred.
2. The client has not sustained any actual injury. (This is because “injury” is an element of a malpractice action.)
3. The client is under a disability (either physical or legal) that substantially restricts or prevents the plaintiff from filing a legal action against the attorney.
4. The lawyer conceals the fact(s) that malpractice was committed–but this only tolls the four-year limitation period which is measured from when the malpractice occurred. This does not stop the statute of limitations which starts to run when the client learns that malpractice happened.
Do not try to evaluate these exceptions on your own, and do not rely on them as a reason to delay seeking representation or filing a claim if you think your lawyer may have committed legal malpractice.
Never delay pursuing a legal malpractice claim. Failure to act within the proper time may result in complete loss of the claim, which means you cannot recover damages.
Do not rely on this, or any other article, as a substitute for prompt discussion of your issues with a licensed, experienced lawyer. If you believe you have a claim for legal malpractice (or any other personal injury, civil wrong, or criminal injury) contact a licensed attorney immediately.