A surefire way to get slapped with a legal malpractice claim is to fail to timely file a lawsuit on behalf of a client. This is probably the most common scenario I see as a claim attorney with Minnesota Lawyers Mutual, and it’s a shame because it is an easily preventable mistake when the right office procedures are in place.
Why Are Deadlines Missed?
It happens for a variety of reasons. It could be substantive in that the lawyer didn’t know the statute of limitations applicable to a particular claim. It could be administrative in that the lawyer or staff person incorrectly calendared the date by which to file the complaint. Or it could be that the lawyer just got so caught up in pre-litigation settlement discussions with the defendant or its insurer that the deadline just slipped by.
Take the attorney who was actively engaged in pre-complaint settlement negotiations over his client’s slip and fall injury. When the parties realized the client was a Medicare recipient, discussions stopped while they looked into the amount of the client’s Medicare lien. It took months to obtain this information, and during that time the statute of limitations on the tort claim ran. The client’s claim was now against her lawyer.
In other instances, the running of the statute of limitations is the result of attorneys dabbling in areas they are not familiar with and simply not knowing the applicable law. For example, a divorce lawyer who thought he had six years to file an underinsured motorist claim for his client later discovered that the automobile insurance policy required claims to be filed in three years. The particular state where the lawyer was practicing allowed the shorter limitations period. The malpractice claim filed against the attorney for waiting four years to file the claim was indefensible.
In another indefensible malpractice case, a lawyer asked his newly hired office assistant to “file” a client’s personal injury complaint. The assistant dutifully followed the lawyer’s instructions and filed the complaint -- in the filing cabinet rather than with the court. By the time the error was discovered, the statute of limitations on the claim had run.
New Rule: Filing within One Year of Service
The new rule in Minnesota requiring lawyers to file a complaint within a year of service has also tripped up some lawyers. Minnesota is one of just a few states that allows a lawsuit to be commenced simply through service of a complaint. However, under Minnesota Rule of Civil Procedure 5.04, cases are now deemed dismissed with prejudice if not filed with the court within one year of service. This is a new rule that became effective in 2013, and has rather draconian results when strictly applied.
Unfortunately, many Minnesota lawyers were unaware of the new rule, failed to file their client’s complaint within a year of service, and are now facing malpractice lawsuits. (Note that courts have varied in their rulings on the application of Rule 5.04. Some have opted to not dismiss the cases at all, others have dismissed but then reinstated them on Rule 60 – excusable neglect -- motions, and still others have dismissed the cases and denied Rule 60 relief on the basis that such relief is not available. The Minnesota Supreme Court is currently grappling with these questions so we should have some guidance soon.)
Tough to Defend
Malpractice claims resulting from missed deadlines are particularly difficult to defend, in part because the defense must revolve around the assertion that the underling case had little or no merit in the first place. It’s tough to be the lawyer arguing that he or she took on a questionable case, and the argument often does not play too well with a jury.
Keeping Track
It’s easy for a lawyer to avoid becoming a malpractice defendant as a result of a missed deadline. First and foremost, a workable calendaring system with ticklers is a must. Case management software is one of the best tools lawyers can use to stay on top of all calendar deadlines, not just statutes of limitation. The docket control features found in such software alerts attorneys to check the file regularly, and provides multiple notices when an important deadline is approaching.
Next, don’t wait until the last day or the last minute to get something filed. Calendaring deadlines well ahead of the due date helps to not only avoid missing a deadline, but also allows some extra time to deal with service issues or other problems that might crop up at the last minute.
Finally, lawyers must be perfectly clear what they mean when asking staff to “file” a complaint!