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?