Much of the work lawyers do involve filing various documents. Often, there are deadlines by which documents must be filed. Even when there are no fixed deadlines, a lawyer’s delay in filing certain documents can permanently impair a client’s rights.
You might wonder why a simple failure to file a document “on time” could destroy your rights. After all, once the unfiled document is discovered—particularly if the lawyer’s error was unintentional, or the failure to file was discovered right away, and no one was harmed by the delay—shouldn’t that remedy the problem? Sometimes courts will relieve clients of any harsh consequences arising from the lawyer’s failure to file on time. However, sometimes the law requires that the prescribed sanctions for the lawyer’s failure to file be imposed on the client. In those cases, the client’s only remedy is a malpractice claim.
What Kinds of Documents Must Be Filed By a Specific Deadline?
Commencement of a Lawsuit: Statutes of Limitations
As you probably know, a lawsuit must be filed before the statute of limitations expires. In Ohio, statutes of limitations apply to every type of lawsuit a client might want to file. Statutes of limitations vary, depending on the nature of the lawsuit. If a lawsuit is not filed within the applicable limitations period, the client loses the right to pursue that claim.
Tort claims, based on the failure to exercise ordinary care to protect others from foreseeable harm, typically have a two-year statute of limitations in Ohio. However, some tort claims—notably legal and medical malpractice—have shorter, one-year time limits for filing. While the time limit for many tort claims begins to run on the date the injury is incurred (e.g., the date of an accident), the time limit for other claims does not start to run until the client has reason to know that he or she has been harmed.
Contract claims have longer limitation periods than tort claims. Claims based on a statute may have a different statute of limitations, indicated in the statute creating the legal claim. Although some tort claims, including malpractice claims, may also involve a contract or fee agreement, the claim will be subject to the shorter statute of limitations applicable to the specific claim.
A competent lawyer should know, based on the facts of your case and the lawyer’s prior experience and/or legal research, when the statute of limitations will expire, and should file your lawsuit before that date. A full-service law firm that handles a wide variety of cases is in the best position to recognize when your previous lawyer missed a critical deadline, to know whether the former lawyer’s failure was in fact malpractice, and to ensure that your legal malpractice case is filed within the limitations period.
Summary Judgment
Summary judgment is a relatively common procedure for eliminating seemingly weak claims based on a written motion in lieu of trial. If you have a strong case or defense, you may avoid the time and expense of trial if your lawyer files a motion for summary judgment on your behalf. If your lawyer fails to file such a motion, there is no penalty other than the cost and delay of a potentially unnecessary trial.
However, if an opposing party files a summary judgment motion against you, your lawyer must file a written response within the time set by court rules or by the trial judge. If your lawyer fails to respond to your opponent’s motion on time, the court may grant that motion, divesting you of your right to a trial. You can appeal, but appellate courts are often reluctant to reverse a summary judgment if your lawyer can’t demonstrate good cause for failing to respond to your opponent’s motion on time. Your only hope may be a legal malpractice claim against your lawyer.
Discovery Documents
During a lawsuit, all parties have the right to request information from other parties concerning their respective claims and defenses. This process, known as “discovery,” can include requests for documents, requests for answers to written questions (interrogatories), and requests for the responding party to admit some or all allegations in the requesting party’s complaint. Responses to discovery requests are subject to time limits.
Unlike a failure to file a complaint before the statute of limitations expires, courts can grant permission for your lawyer to file discovery documents after the deadline has passed. However, the court can sanction you and/or your lawyer for any failure to provide those documents by the deadline. If the court excludes evidence from trial or otherwise limits your ability to present your
case due to a failure to meet a discovery deadline, you may appeal that ruling if you lose the case. If the trial court’s ruling was arbitrary or contrary to the law, a court of appeals can reverse the ruling and give you another chance. If the appellate court upholds the trial court’s ruling, you may lose an otherwise winnable case.
Appeals
If you lose a case at trial, or before trial based on, e.g., a motion for summary judgment, you have a right to appeal. However, your lawyer must file a notice of appeal within 30 days after the judgment is final. Failure to appeal within 30 days terminates your right to appeal, regardless of how strong your case may be. When a notice of appeal is not filed on time, there are no second chances.
Administrative Cases
There are numerous types of administrative cases, which begin with a determination by an administrative body, such as the motor vehicles bureau and Social Security. While initiating an administrative claim may not have a set deadline, there are deadlines that must be met once the claim has been filed. Delayed claims for benefits to which you may be entitled may reduce the amount you receive. For example, the date on which you become eligible for Social Security disability benefits may be based on the date on which your claim is filed. While you may ultimately be awarded disability benefits, a delayed filing date may result in a loss of benefits between the date you became disabled and the filing date. If your monthly benefit is $1,000, every year that the filing is delayed will cost you $12,000 in lost benefits.
Administrative decisions can typically be appealed to either a state common pleas court or a federal district court. Deadlines for these appeals are as rigid as deadlines for a legal case commenced in court.
Bankruptcy Filings
If someone who owes you money files a bankruptcy petition, you will receive a notice requiring you to file proof of your claim in bankruptcy court. Even if you have no security interest—a lien or mortgage—in property owned by the debtor, there may be some assets that can be sold to pay part of the debt owed to you. If your lawyer fails to file this claim within the time provided in the notice, you will probably forfeit any amount that you otherwise might have recovered from the bankruptcy estate.
What Kinds of Documents Do Not Need to be Filed by a Fixed Deadline, and How Can I Suffer Consequences for a Delayed Filing When No Deadline Exists?
Real Estate Records
Documents that must be filed for public record typically are not subject to a fixed filing deadline. Documents covering real estate transactions are the most commonly encountered. Filing in a timely manner may be necessary to protect a person’s interest in a residential or commercial lease. Filing may also be necessary to protect a person’s or entity’s interest in an oil and gas lease or in the oil and gas beneath a property.
Especially if the underground oil and gas is owned by someone other than the owner of the surface, the person’s interest in the oil and gas should be filed for record as soon as possible. Interests in real property that are not recorded can be transferred to third parties by the apparent owner—the owner of land beneath which oil and gas is present, or the owner of commercial property that has been leased to someone else. Some wrongful transfers of property subject to unrecorded interests can be corrected by the courts. However, undoing a wrongful transfer of your interest will likely involve long and costly litigation that may not fully restore rights lost as a result of your lawyer’s failure to file the necessary documents.
Similarly, one who has performed work on real estate but has not been paid may file a mechanic’s lien to ensure that the real estate won’t be transferred to someone other than the debtor before the worker is paid. Your lawyer’s failure to record your lien may preclude you from ever being paid.
Bankruptcy Filings
If you are a secured creditor—e.g., one who holds a lien or mortgage on property owned by someone filing a bankruptcy petition—you will receive preferential status in the bankruptcy if your mortgage or lien has been recorded. Even though you may not be fully paid, you should be entitled to recover the property rather than see it sold to pay off other creditors. Any lawyer involved in establishing the lien or preparing mortgage documents on your behalf should file evidence of these transactions with the county real estate records. If the proper documents are not filed, you may forfeit any available funds to which you are entitled.
If your home or business property is in foreclosure, filing a chapter 13 bankruptcy may enable you to keep the property if you can make payments during the bankruptcy to resolve the debt that led to the foreclosure. While there is no deadline for filing bankruptcy, the case should be filed as soon as possible, preferably before any sale of the property. A timely bankruptcy petition should delay any potential sale and enable you to retain the property by making all scheduled payments. If the property is sold and the sale has been confirmed before your bankruptcy petition is filed, your right to redeem the property will be forfeited.
Let’s say your wages are being garnished because of a judgment against you, or your driver’s license has been suspended because you caused a car accident without insurance. Filing bankruptcy can stop the garnishment or enable you to get your license back. There is no set deadline for filing either a Chapter 7 or Chapter 13 bankruptcy. However, the longer it takes your lawyer to file the bankruptcy, the longer your wages will continue to be garnished or your license will be suspended.
Are All These Failures to File, or to File On Time, Legal Malpractice?
The lawyer’s failure to file in a timely manner constitutes malpractice if you were harmed as a result. To recover for malpractice, in addition to showing that your lawyer breached a duty owed to you by failing to file, you will also need to convince the court hearing your malpractice case that it was the lawyer’s failure to file—not any failure on your part or weakness in your case—that caused the harm you sustained. Proving that the lawyer’s failure was the primary cause of your damages could be difficult, but a good lawyer experienced in the areas of legal malpractice, and the substantive legal area involved in your underlying claim should be able to assist you in obtaining a remedy for the lawyer’s misconduct.
Rely on a Full-Service Firm to Handle Your Legal Malpractice Case
The consequences of a lawyer’s failure to file documents on time can be severe. Not only can you suffer a financial loss, but you may have to wait a year or more before you receive compensation from the lawyer who failed to represent you properly. If you believe you have a case against a former lawyer, you should reach out to an experienced, full-service law firm with expertise in a wide range of legal practice areas and a proven track record of success.
Like so many others who have placed their trust in us, you can count on Slater & Zurz LLP to thoroughly evaluate your legal malpractice claim, answer your questions, and advise you concerning whether you should proceed. Call our team of motivated, determined legal malpractice attorneys for a free consultation. We’re here to serve your legal needs with unwavering dedication and the drive to win.
