Determining when you need a lawyer is easier than it sounds. The short answer is: call a lawyer and find out! So, you must be thinking now: “What a racket!” I want to know if I need a lawyer and he says: “Call a lawyer!” It’s not a racket, however, when you realize that many lawyers will speak to you about your case “free of charge” and “without obligation.” They can provide you information that enables you to determine if you need a lawyer and it usually won’t cost you a cent. Failing to call a lawyer, however, could cost you your case.
Injured individuals are well advised to seek legal counsel – if not for representation, at least to avoid some of the pitfalls that can cost them their rights. Filing claims against municipalities or governmental entities usually requires filing a claim before you are even permitted to file a legal action. This is a trap for the unwary. There is also the issue of the statutes of limitation that can bar you from filing a claim after the passage of a certain amount of time. This is serious and can cost you your rights.
Often an individual, particularly one involved in a personal injury claim, will be generally aware of the fact that a statute of limitations may apply that will forever bar them receiving any recovery unless a case is filed by a certain deadline. Dealing with that sort of issue while struggling to heal, pay medical bills, get back to work, is a lot to handle. Yet, time may not be your friend. While the passage of time may result in healing that is beneficial to you, if you wait too long the time period during which you are permitted to seek compensation may be running out.
Many folks do not appreciate that there are different statutes of limitation depending on the nature of the claim – and that you can have different limitation periods in the same case with respect to different claims, even though they all arise from the same circumstances. Statutes of limitations are such an important and potentially dangerous pitfall, that even talking about it in general terms can cause problems. Let me give you an example: if by reading this blog, you think your limitations period is up and don’t file a claim, but there are some factors that would have given you additional time, then you may lose your rights unnecessarily. Similarly, if I tell you the statute of limitations is longer than it really is, you may relax and then it may be too late. So, let me be absolutely clear: do not rely on this blog or the internet to answer your questions. Speak to a lawyer who can advise you. Laws change. Factors are individual. When it comes to your rights, you don’t want to get this wrong!
Not only do different claims have different limitations periods, but different jurisdictions, federal laws, state laws, and the laws of different state, differ. In some jurisdictions, such as Washington State, a personal injury claimant GENERALLY has three years from the date of the injury-producing event to file in cases of negligence. I use the term “generally” to give you warning that this period can be shorter OR longer depending on the claim. For instance, a claim arising from assault, may be shorter than three years.
Injuries arising from defective products give a good example of some of the potential complications. If you think it is simply a three year period from when you get hurt, you might be mistaken!
If the injury arises from a defective product, there is a special statute, the Washington Products Liability Act, RCW 7.72.060, which provides: “Subject to the applicable provisions of chapter 4.16 RCW pertaining to the tolling and extension of any statute of limitation, no claim under this chapter may be brought more than three years from the time the claimant discovered or in the exercise of due diligence should have discovered the harm and its cause.” So, claims for defective products are affected by two major factors: (1) the statute involves “discovery” of certain facts about the claim; (2) the statute can be affected by the provisions of RCW 4.16, which we will touch on in a little while, which can “toll” or “stop” the limitation period from running. Factors can affect the time period. So, once again, you may wish to speak to an attorney, just to make sure you don’t lose your rights by delay.
Statutes of limitation change. For example, in California, the period for personal injury claims arising from negligence WAS only one year, but has been extended to two years, with a “discovery” rule. Let’s say a person is injured on vacation, which happens, unfortunately, more than we would wish. You return home and begin to experience problems. What do you do? Are you governed by the law where you live – or where you were hurt. This could make a huge difference. (For safety’s sake, you would have to consider both jurisdictions and see which is the shorter statute of limitations.) You would generally, however, be bound by the law in the jurisdiction where the negligent act occurred. So, a Washington citizen hurt in California should be advised that the California statute may be shorter than that in Washington.
Since, in many cases, the claim will have to be brought in the jurisdiction where the injury was sustained, this could mean dealing with an insurance adjuster by telephone or hiring an attorney who practices in the jurisdiction where you were hurt. But, again, you would need to know the limitations period that applies for the place where you were hurt. Not knowing this could cost you your claim! Also, if you are dealing with an insurance adjuster, they may not be in the State where you were injured. Whatever you do, you cannot rely on the insurance company (who may be representing the party who hurt you) to inform you of the deadlines. Although many adjusters are honorable people, others may not mind it one bit if they negotiate with you to the very brink of the statute of limitations. Then, even if they warn you (and they should if you are unrepresented), it may be hard to get a lawyer out-of-town on short notice.
The simplest solution for most of these problems is to call a lawyer. Most reputable lawyers spend a lot of their time speaking to prospective clients and letting them know whether they need a lawyer – and whether they need a lawyer that is out-of-state. Lawyers are admitted to practice law on a state by state basis, although some states give reciprocal privileges to adjoining states and some lawyers have been admitted to the bar of several states. You may, for example, be able to find a Washington lawyer who is also admitted to Oregon, or vice versa. A lawyer who will not spare the time to speak to you about your case may not be the best lawyer for you – although, to be fair, the lawyer may happen to be in the middle of a jury trial and be unavailable for a while.
The Statutes of Limitation are not a secret. They are in statutes, after all. Nonetheless, because different statutes have different limitation periods, you may need some legal advice to figure out what your claims are and how long you have to pursue them.
Now, I promised I would get back to some of the factors that can affect the limitations period in your case. In Washington State, for instance, RCW 4.16 contains different limitation periods for, say, ten years, three years, two years, one year, all depending on the type of case. An action for libel, slander, assault, assault and battery, or false imprisonment, has a two year statute of limitations. General negligence would usually be three years. The time period allowed under the statute of limitations can be “tolled” (stopped) by a number of factors such as military service, personal disability, or even if the person against whom you have the action is concealing himself or herself.
So, you may wish to find a lawyer to help you determine when you need a lawyer! It’s no racket. It’s just one way that lawyers give back to the community. It’s important to keep in mind that lawyers are glad to provide answers because it may mean that you will come back to them if you do have a legal case worth pursuing. That’s okay. If you’re in that unfortunate situation, you will want a lawyer who will give you the straight scoop and with whom you have a relationship of trust. Naturally, if a lawyer is not interested in taking your case, that gives you information too! But, what it tells you is far from clear. It could mean that your case is not worth enough to justify the work it would take for that particular lawyer to handle it. It could mean the lawyer doesn’t do that kind of case. It could mean that the lawyer is overloaded with work for existing clients. Don’t be shy about asking the obvious question: “Do you think my case is worth pursuing?” Or, perhaps, “Do you see problems with my case that I should take into account?” If you are not interested in the case, can you refer me to another lawyer? Or, “What do you think the likely limitations period is on this case?
Next time, how to find a lawyer.