Oops!... I Did It Again: Missed Deadlines Continue to Plague Plaintiffs’ Attorneys 

 
The numbers are in. Missed deadlines in plaintiffs’ personal injury cases is the single largest cause of malpractice claims against lawyers. Interestingly, it is also one of the easiest claims to avoid. Avoidance, though, requires lawyers to implement a variety of risk management procedures. Because there is not a single reason for missed deadlines, lawyers need to have a multi-pronged approach. It is not enough to simply have a good calendaring system. What follows are simple suggestions, which, if followed, will substantially reduce the risk of missing any deadlines going forward. 

1. Don’t wait until the last minute to file a complaint or other time-sensitive pleading. When you wait until the eve of the statute of limitations deadline to file a complaint and name the wrong defendant, you are left with no way to cure your mistake when the defendant files a motion to dismiss. By filing early, you will have time to do further investigation and discovery after you receive a motion to dismiss. 
2. Don’t let your alias and pluries (A&P) summons lapse. If a defendant is not served within the time allowed for service, the action may be continued if the plaintiff obtains an endorsement or A&P summons.  Rule 4 states that if the endorsement or A&P summons is not obtained within 90 days after the date of issuance of the last preceding summons, the action is discontinued as to any defendant not served within the time allowed. A plaintiff can sue out another A&P summons after 90 days, but the action will be deemed to have commenced on the date of issuance of that new A&P summons. If the statute of limitations has expired, your action as to that defendant not served is barred by the statute of limitations.
3. Verify facts and law to determine the appropriate statute of limitations as soon as you accept the case. Once you decide to accept representation, you should verify critical dates. If your client tells you that the accident happened on a certain date, make sure to verify that by reviewing accident reports, medical records, or other relevant documents. Once you have determined the critical date(s), make sure that you know the correct statute of limitations. Was this an out-of-state accident? If so, what is the statute of limitations in that jurisdiction. If this is a claim that you do not normally handle, make sure that you do the legal research to determine the appropriate statute of limitations. You don’t want to be the real estate lawyer who agreed to handle a wrongful death case and assumed that the statute of limitations was the same as it was for personal injury claims. 
4. Do make sure to have a good, centralized calendar system. A centralized calendar system allows everyone in the office to track deadlines and watch out for each other. It also protects in the event of death or disability of a lawyer. If possible, have more than one person responsible for keeping up with deadlines.  Your calendar should also have tickler reminders at least 30, 60, 90, and 180 days before the statute runs. 
5. Don’t assume that a complaint has been filed. The primary attorney responsible for the case should never assume that a complaint was filed. When the lawyer asks someone else in the office to file a complaint, the lawyer should verify that the complaint was filed. We have seen numerous claims where a lawyer gave the complaint to a staff member for filing and the staff member put the complaint in the file and never filed it with the court. 
6. Don’t procrastinate. I know that sounds oversimplified. We all procrastinate in some areas of our life. Filing deadlines are not an area where that is acceptable. The statute of limitations is not something for which you can get relief from the court. Lawyers tend to procrastinate in cases where they don’t like the client or the merits of the claim. If you don’t like the client or the merits, don’t take the case. If you take the case and later realize it was a mistake to accept representation, withdraw where possible. 
7. When you decline representation, send a nonengagement letter or email. It might seem like overkill to send a nonengagement letter or email where you have already told the prospective client that you’re not going to represent them. However, clients often have a different interpretation of your conversation. We see many cases where the lawyer says that he told the client he wasn’t taking the case, but the client swears that they thought the lawyer was handling it. When the statute of limitations has expired and the person asserts a malpractice claim, it a “he said she said” scenario. If the lawyer had sent a simple one or two sentence email, she could have easily avoided the claim. 
8. Share these tips with everyone in your office. Deadline avoidance requires participation and buy-in from everyone in the office. This includes all lawyers, paralegals, administrative assistants, couriers and receptionists. Everyone in the office needs to understand how critical it is to identify the correct deadline, enter it in the calendar, and respond to the deadline in a timely manner. 

If you would like additional information about calendar and docket control, check out Lawyers Mutual’s practice guide. You can also find additional information about missed deadlines in our Litigation Traps guide.