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A legal malpractice statute of limitations is a law that establishes a specific amount of time in which a person may file a lawsuit against a lawyer for malpractice. A court will dismiss a legal malpractice lawsuit if the time expires on the statute, but this time limit will vary in each jurisdiction. Although the statute of limitations establishes the time to file a lawsuit, it can be difficult to determining when the clock on the statute begins. Typically, the time will start when the client learns of the malpractice or when he or she should have learned about it.
Jurisdictions typically each have a unique legal malpractice statute of limitations. Some jurisdictions may establish a one-year period, while others have a four-year period to file a case. The courts in each jurisdiction also will interpret and apply the language of its statute differently. There is not a definite or easy response for determining when the time limit countdown begins, which makes it necessary for a person who suspects legal malpractice to confer with an experienced legal malpractice attorney to assess the case properly.
In addition to a jurisdiction’s specific statute of limitations, another factor that will affect when the clock begins is tolling. Tolling allows the court to stop the countdown on a statute of limitations under certain circumstances. This will affect how long a person has to file a legal malpractice suit. For instance, if a lawyer hides certain facts from a client that prevent the client from learning of the malpractice, then the court will toll the statute. Other situations, such as the lawyer being out of state, will also how long the victim has to file a lawsuit.
Each case will have unique circumstances, which makes it difficult to determine when the legal malpractice statute of limitations begins. This makes it important for people who think that they've been subject to malpractice to consult with an experienced legal malpractice attorney. This lawyer also will help to determine whether a client has a valid case, because legal malpractice does not necessarily arise from a lawyer losing a case. He or she must analyze various factors to calculate properly whether the statute of limitations will prevent a case from proceeding. A lawyer experienced with legal malpractice will know how to protect a client’s case and may initiate a legal action immediately to prevent the statute of limitations from expiring.
A smart move for attorneys is to keep up their malpractice insurance during the entire time a suit could possibly be filed based on their alleged failings in representing clients. A lot of those malpractice policies are strange as they will only be effective so long as the premiums are paid.
Let's say Lawyer Fred has an active malpractice insurance policy in place in 2014. Fred wraps up a case in June of that year in a state where the statute of limitations on malpractice suits is one year. At the end of 2014, Fred retires and stops paying his malpractice premiums. In May 2015, Fred's client from that case wrapped up in June 2014 files a malpractice suit
. Even though the malpractice insurance was in place when Fred allegedly committed malpractice, it might not protect him because coverage has lapsed.
In other words, the statute of limitations might be one year but a lot of malpractice insurance policies only look at when a case was filed rather than if insurance was in place when malpractice occurred. Logically, it makes sense to expect a policy to protect against all malpractice committed while the insurance was in place, but it doesn't always work that way. Strange.