Personal injury generates the most frequent and costly legal malpractice claims in Oregon.
If you are a PI practitioner, watch out for these common traps:
Naming the Wrong Defendant
A thorough investigation of your client’s claim is essential. Seek out corroborating documentation of the facts. Take special care to properly identify parties – especially when using the Business Registry to search for an assumed business name or corporate entity. (Many names are similar.) File your complaint well before the statute expires. If you later discover that you misidentified the defendant, you should be able to file an amended complaint.
Omitting a Defendant
Even if you believe that you conducted a thorough pre-filing investigation of your client’s claim, it is still possible to miss a defendant. Here is an example: Your client is crossing the street and is struck by a car in the cross walk. In working up your client’s claim, you instruct your investigator to interview the driver who is not represented. Based on the statement taken by your investigator, the case appears straightforward: pedestrian versus driver. You file suit, naming the driver. In the course of depositions, after the statute of limitations has run, you discover the driver was performing a work-related errand for her employer at the time of the collision. You failed to name the employer as an additional defendant. There are several lessons to learn from this scenario. One of the most important is to file early! If you learn of a second defendant before the statute runs, file an amended complaint. Also take the time to review scenarios like this with your investigator and be sure he or she has adequate direction from you on how to conduct interviews.
Suing a Defendant who is Deceased
Failure to discover that the defendant passed away does not toll the statute of limitations. Conduct a records search prior to filing. Use resources like the Oregon Judicial Information Network (OJIN) or Accurint to check court and public records. If a probate estate has been established, name the estate as the defendant and serve the Personal Representative.
Not Knowing the Law
Claims involving minors often trip up practitioners. Many believe that minority automatically tolls all statutes and tort claim filings until the minor reaches the age of 18. This is not the case. Do your research! Use the PLF’s Oregon Statutory Time Limitations handbook as a resource to verify the applicable deadline. Every Oregon lawyer received a copy of this handbook in 2010. A PDF of the book is available for download on the PLF Web site.
Missing the Statute of Limitations
The first defense in avoiding a blown statute is to know the law. As suggested above, use the PLF’s Oregon Statutory Time Limitations handbook as a resource. Even if you think you know the statute of limitations, check again. The second defense is to establish reliable calendaring and file tickling systems that remind you of upcoming deadlines and prompt you to move cases forward. Consult the PLF’s docketing and calendaring practice aids available online or download and review our book, A Guide to Setting Up and Running Your Law Office, also available online. Third, always file well in advance of the statute. Am I beginning to sound like a broken record? Filing early allows time to recover from the mistakes described above.
Failing to Timely Complete Service
Put the summons and complaint in the hands of your process server on the day you file your complaint or as soon thereafter as possible. Create a reminder or task to follow-up with your process server 10 days later. If the defendant is avoiding service or if your server is having difficulty locating the defendant, you need to know early on so you can pursue alternate service methods. If the defendant is not personally served, be sure you comply with any additional steps that must be taken. For example, if substituted or office service is obtained, follow-up service by first class mail is required. Lastly, remember that ALL service steps, including mailings, must be completed within Oregon’s 60 day window for service of process.
Other Resources for Personal Injury Practitioners
The PLF offers 19 litigation/personal injury forms on our Web site, including a civil litigation checklist, service of process checklist, common civil litigation time limitations, and a settlement/judgment disbursal checklist. We also have many articles dedicated to helping PI practitioners avoid potential malpractice. An archive of PLF In Brief articles dating back to the year 2000 is available on the PLF Web site. Additionally, in May 2013 we held Malpractice Traps for Lawyers Handling Personal Injury Cases. This CLE and the accompanying handout are available to order on the PLF Web site.
Call the PLF for Help 1-800-452-1639
If any of the above happens to you, or if you are concerned for any reason that you may have committed malpractice, call our office. Ask to speak to one of the claims attorneys on call.
If you would like assistance with setting up a reliable calendaring or file tickling system, ask to speak to a PLF practice management advisor.
All PLF services are confidential.
All Rights Reserved – Beverly Michaelis