Central New York Injury Lawyer Blog

When a client brings a potential New York legal malpractice case to me, one of the first things I do is try to calculate the statute of limitations (the last day the lawyer can be sued). I say try because this is not always easy in legal malpractice cases. And that's what I am going to blog about today.

Here's the easy part: The statute of limitations is always three years. Here's the hard part: When does the three-year period start running? The legalese answer is, "when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court" (Ackerman v. Price Waterhouse, 84 N.Y. 2d 535). But what does that mean? In most cases, it is the day the lawyer made the mistake (committed malpractice), but not always. Some of the cases say that the damages due to the malpractice need to be "sufficiently calculable" for the clock to start running. But "sufficiently calculable" is not always black and white. There are grey areas. That's why we don't always know what a court will find to be the "accrual date" (start date) for the three-year period.

Does it matter when the client found out about the malpractice? Example: A client consults a lawyer about what he thinks is a great lawsuit, but the lawyer tells him (wrongly) that he has no case. More than three years later the client consults another attorney who says, "gee, that was a great case, but your statute of limitations on it expired about a month after you saw that first attorney. That first attorney should have filed suit for you and you would have gotten a million-dollar recovery!" Does the three-year statute of limitations bar the client from suing the first lawyer, even though the client did not know he had been malrpracticed until after the three-year period had run?

Yes! Barred, barred, barred! In fact, it doesn't matter at all, not one bit, whether the client knew of the malpractice, or even of the harm, until more than three years later --- the clock was running, and if the three years ran out - too bad!

Ouch. That's pretty harsh for the client.

Another little twist in calculating the starting time for the three-year statute of limitations is the "continuous representation doctrine". Under this rule, the three-year legal malpractice statute of limitations is "tolled" (does not start to run) until the lawyer ceases to represent the client on "the same matter".

Why this rule? Think about it: It would be very uncomfortable and counterproductive to sue the lawyer while he is still representing you. And you sometimes still need him to finish off the job he started, or to try to correct his error. The law recognizes this, and cuts the client some slack here -- the client doesn't have to worry about the statute of limitations time running while the lawyer is still representing him on that "same matter" - it won't start running until the lawyer/client relationship on that same matter ends.

But what does "the same matter" mean? What if the lawyer continues to represent you on an offshoot of the main matter? Is that the "same" matter? Do you get the toll or don't you? Well, it depends on whether a court rules it was "the same matter".

As you can see, it is somewhat complicated to calculate the statute of limitations in New York legal malpractice cases. So what does a New York legal malpractice lawyer do to know when he needs to sue the malpracticing lawyer?

Here's how I handle it: I usually "diary" a "conservative" statute of limitations (worst case scenario) and then more generous ones. I always sue the case out before the conservative one, unless for some reason that is impossible (for example, when the client comes to see me after that conservative date has already come and gone).

I sure as hell try not to malpractice my legal malpractice cases! So far so good.

We have brought many New York legal malpractice lawsuits against other New York personal injury lawyers. In fact, we are one of the few firms in our area willing to sue other lawyers for malpractice. Our experience has taught us a few things. One thing we have learned is how a client can suspect that his lawyer has committed legal malpractice in his personal injury or medical malpractice case even when the lawyer won't tell the client. How? Read on.

Phone rings. Secretary tells me a potential client is on the phone with a personal injury case and he wants to "switch lawyers". I take the call. The potential client says, "my lawyer at first told me that I had a great personal injury case, that I had a lot of money coming to me, but now all of a sudden he tells me the case is not worth pursuing. He is trying to talk me into dropping the case. But I don't want to drop it. Can you represent me?"

Wooo! When I hear this, red flashing lights go off in my head. The first question I ask is, "WHEN did your accident happen?" If the answer is, "just over three years ago", I say to myself, "bingo".

The New York statute of limitations for most negligence (injury) cases is three years (for medical malpractice cases it is usually 2 ½ years). These statutes of limitations are generously long for a reason; you can't know how much to sue for, or how much to settle for, untill you see whether the injury will heal, how it will heal, what the client has to go through to heal (i.e. surgery, physical therapy), whether there will be any permanent disabilities, and if so, how bad they will be. So at first, before a lawsuit is filed, there is usually a long waiting period.

The problem is that some lawyers don't carefully diary the statute of limitations while they wait for the injury to play itself out. If the statute of limitations goes by without a lawsuit being filed, the case is dead. But if your lawyer missed your statute of limitations, your case is not REALLY dead, it is just transformed from a case against the careless person or company that caused your injury into a case against the careless lawyer who missed your statute of limitations.

But guess what? A lot of lawyers who miss statutes of limitations or other filing deadlines don't tell their client. Instead, they try to talk the client into dropping the case, claiming that the case is not winnable. Of course this is completely unethical, deceptive and dishonest. But believe me, it happens all the time. Lawyers don't want to be sued, even though they usually have malpractice insurance to cover them for their mistakes. It hurts their pride.

So, if your lawyer at first told you had a good case, but now he wants you to drop it, do some math. How long has it been since your accident? Then call me and we'll talk.