1.13.11

• Handouts can be used on exam!

Statute of limitations
➢ Why?
• Evidence- weakens over time
• people die, forget, move,
• documents get lost, destroyed
• Truth- is object
• Closure-not have threat of suit hanging over head
• court congestion
• Secondary Gain-Vengeance/Harassment/Jealousy
• Defendant most hurt by deterioration of evidence
• Tough to prove a negative

• From moment when damages accrue, statute of limitation begins
➢ Statute begins when you "know or should know" you have been harmed.
➢ EX medical malpractice, may not know that you've been harmed for years.
• SL 3 years, but 8 yrs to discover, and 1 yr to take action w/in the 8 yrs.
Statute of limitations- varies from state to state

Tolling the Statute
➢ Events which Toll (stop) the running of the statute
• Just like sports time-out, amount of time on clock when time-out starts, is same amount when time begins again.
• 1. Minor- (not a true toll) stops statute from beginning. Statute does not begin until child turns 18. Date of accident irrelevant, statutory period begins on day of 18th bday.
• 2. Jail/Prison (for Plaintiff/not Defendant) - statute applies to P, and jail impairs ability to bring case.
• 3. Physical Incapacitation (Plaintiff/not D)- Coma, or close to it.
• 4. Out of Country (Defendant/not P) - D cannot be served.
• 5. Active Duty (Plaintiff/not D) D may be served
• 6. Concealment (Defendant/not P)
• 7. Death- (Plaintiff/not D) for 1year, personal representative can bring suit. (Death of D does not toll statute)
• 8. Judge ordered stay
• 9. Bankruptcy (Plaintiff/not D) when you file B, your assets are not yours, your cause of action is not yours, (suit is asset, may be abandoned back to P)
• 10. Insanity (Plaintiff/not D)

• Toll + Relation Back will be exam Question


Claim Statute -Suing govt entity (any part of govt EX school, parks, etc.)-
➢ Vestigial immunity- can bring action against govt, however, claim statute says, before you can sue govt you must file a proof of claim to settle. Must give govt a period of time to evaluate and choose to settle if they wish ~ 60-90 days. And they NEVER, EVER settle. But if you don't, your claim will be rejected by court.
➢ Statute is usually tolled while claim is reviewed

• Martindale Hubbell
➢ Publication- look up firm in any city, also has thumbnail of law in each state, including statute.
• NEVER try a case at Christmas, jurors not happy, not likely to give money to the person who made them be there.

Laches -("lat-cheese")
➢ Only in lawsuits with equitable remedies
➢ "We know statute, but if while statute is still pending, action is taken that indicates that you do not intend to pursue your legal rights, statute may be shortened."
➢ EX House sale falls through, seller decides not to sell, breach of contract. Buyer could sue for specific performance, but if he instead buys another house, seller can fairly assume that buyer will not pursue remedy against him.

• Review PROMISSORY ESTOPPEL-when your words and actions induce reliance in another which results in harm.

Tickler Systems
➢ Lots of dates to keep track of, send reminders X time ahead of date.
➢ NO defense for missing a statute, automatic MALPRACTICE.
➢ Software programs-Outlook, Needles (popular), Abacus, KEEP HARD COPY.
➢ Keep your own calendar of cases & projects you are responsible for.

• Feasibility of case
➢ Find out as soon as possible if it's a dog (poor case).
• Turning Down a Case
➢ CRITICAL that this is committed to memory.
• If there is any doubt that you are their lawyer, you are.
• Must be able to prove that you are NOT their lawyer.
• Malpractice even if not their attorney.
• If you tell them their case is bad and it's not=malpractice.
• If you do not tell them about statute of limitation=malpractice.
• THE ANSWER = SEND LETTER INCLUDING THESE THREE THINGS
• 1. Clear, unequivocal statement you are not taking the case/representing the client. "We are not representing you or accepting this case". Do not dance around it.
• 2. Recommend a Second Opinion "Attorneys can vary widely in their assessment of liability and damages."
• 3. Statute of Limitations "There is an statute of limitations...that is critical to keep in mind." Don't need to state exact time, merely state that a statute of limitations exists.

• "Thank you for meeting with me, it was a pleasure meeting you and I really enjoyed meeting with a fellow -----, blah blah blah. (Mention something personal discussed). I hope we have the pleasure of representing you or your family at some point in the future. Please do not hesitate to contact us in the future if you have any questions."
• Be personable- keep future business in mind.

Frivolous Claims
➢ Generally propaganda from Insurance companies, corporations, etc.
7 Reasons why frivolous lawsuits are rare to non existent
• 1. CR 11 - must have legitimate cause of action
• 2. Counterclaim- malicious prosecution
• 3. Financial- risk wasting $
• 4. Reputation- personal & professional
• 5. Filing does not= winning, 52% lose
• 6. 12b(6)/MSJ (motion for summary judgment)
• 7. Juries are not stupid
• Corporations much more likely to file "frivolous" LS, than individual
• EX Allstate sues Kraft for Poptart flammability

Communication with Clients
➢ 20% of clients will take 80% of your time
➢ Malpractice claims almost always include "failure to communicate"
➢ TIPS TO SAVE TIME
1. Clients most needy in first 30-90 days, keep in contact with them during this time and they will usually back off. Dispel myth that case will be speedy.
2. ALWAYS return phone calls, even if you don't have the answer.
3. CC client on almost everything you do. Even if they don't understand it, they will appreciate that you are working. And they will call you less often.
• 4. Give clients cell phone number. If you use your cell they will have it anyway. If you give it they probably won't use it.

Attorney Fees
➢ Rules of Professional Conduct- RPC's
• Three ways
1. Flat Fee- flat fee upfront
• EX Dui=$10,000, some divorce, tax, adoption
2. Hourly- TIP- WRITE IT AS YOU DO IT, accounting for time as you go.
➢ you will be evaluated based on your billable hours.
➢ keep track even if it's not a billable task.
• Keep list of cases, then notate which and what work is done
3. Contingent- % of what you recover