What is Legal Malpractice in Florida?
Legal malpractice is a term used to define a situation that occurs when a lawyer, or firm of lawyers, makes a mistake during the course of a legal representation, either leading to a loss to his/her client or causing a mental or physical injury to the client. In some cases, the issues that arise may be the result of incompetence or a simple lack of knowledge or understanding. If a lawyer does not do what is expected of them, and causes damage to the client, they may be subject to accusations of legal malpractice. Understanding legal malpractice and how it unfolds can help any potential litigant seek legal action against those who have wronged them.
The general rule in Florida is that in order to prevail in an action for -recovery of money damages due to legal malpractice, Plaintiffs must prove three things:
The plaintiff has the burden of proving that the attorney’s services were not in accordance with the standard of care for attorneys in Florida , and that they did not exercise the degree of care, skill and diligence reasonably practiced by attorneys in the same locality, which lead to client’s loss.
Florida law sets forth a two year statute of limitations to bring a claim for legal malpractice. Therefore, a client claiming legal malpractice has a period of two full years from the point that the malpractice occurred to file a claim against their attorney.
There are some limited exceptions to the two year time period. In general, these exceptions apply if the malpractice ongoing or continuous in nature. For example, a client filing a legal malpractice suit against an attorney must file the litigation within two years of the earliest of the following three dates: Claims of legal malpractice are very fact specific, and the two year statute of limitation, while generally applicable, can have several exceptions to it depending on the facts of each case.
Florida Legal Malpractice Statute of Limitations
The statute of limitations for legal malpractice lawsuits in Florida is codified throughout the Florida Statutes. The general statute of limitations for most civil actions in Florida is found in Florida Statute 95.11(3), which provides a four-year statute of limitations. A legal malpractice action, which arises from the alleged negligence of an attorney in representing a client, is generally a civil action which is subject to the four-year statute of limitations under Florida Statute 95.11(3). A legal malpractice action may also arise from the alleged breach of contract between the client and the attorney which is subject to the five-year statute of limitations under Florida Statute 95.11(2); however, the four-year statute of limitations under Florida Statute 95.11(3) is more commonly applied to legal malpractice claims.
In the context of a legal malpractice action the countdown begins to run when the negligence occurs or, put another way, when the negligence is discovered or should have been discovered. The Florida Supreme Court has held that a legal malpractice action accrues at the time of the negligence, even in the event the damages occurred at some point in the future. Under Florida law, a legal malpractice action must be commenced within two years of the date on which the plaintiff knew or reasonably should have known of the injury. If the plaintiff does not discover the harm for two years the statute of limitations runs upon the discovery.
It can be complex to determine what statute applies to a legal malpractice action and what amount of time the plaintiff has to bring a claim against the attorney. Legal malpractice claims are very complicated and expert advice is necessary.
Key Cases and Precedents
Significant Case Laws and Precedents
Several landmark cases highlight the nuances of Florida’s legal malpractice statute of limitations. Fetterman v. Auld, 866 So.2d 1255 (Fla. 4th DCA 2004), is a prime example of how a plaintiff might discover their cause of action outside the proscribed statute of limitations. The Fetterman court found that where a previous law firm’s failure to file answer to a complaint in a worker’s compensation claim and pursuing affirmative defenses led the second law firm to fail to achieve the desired outcome in a medical malpractice case, the statute of limitations was tolled for the client. The statute of limitations on a legal malpractice case, in this instance, does not begin to run until such time as the plaintiff knew or should have reasonably known that she had a cause of action under the statute." Id. at 1260.
In contrast, the court ruled in Palm Beach County v. Cox, 826 So.2d 1024 (Fla. 4th DCA 2002), that the statute of limitations for a legal malpractice case against a former public employee corporation is four years, and the claim accrues when the former employee is no longer employed by the corporation. The time accrual begins when the former employee is no longer employed by the public employee corporation.
Proving When the Malpractice Took Place
It can be difficult to determine when the date of the malpractice actually occurred. For example, lets say your attorney was supposed to file a lawsuit in January of 2004, but didn’t file it until June of 2004. You can suppose that had a lawsuit been filed in January, you would probably have recovered some money, if not a lot of money. But the question in this instance is, when did the statute of limitations begin to run? In Florida, most intentional torts must be brought within four years. The question of when the statute of limitations begins to run is important because it determines when a malpractice lawsuit must be brought, otherwise the claim will be barred. A claim is barred if suit isn’t filed within that four year period. Medical malpractice must be brought within two years. Even though economic damages could in fact occur for a negligence matter that began well in advance of the two years, the two years begins when the negligence occurred. If the harmful act occurs in the medical provider’s office, the two years begins then. Today, the "Discovery Rule" dictates when the malpractice begins to accrue. In the malpractice case involving a trial lawyer for example, the claim usually starts at the time the lawyer would have filed an action. So, even when a lawyer fails to file a lawsuit to preserve the client’s claim, the statute of limitations for the original complaint will not start until it would have normally started had the lawyer followed the standard of care.
What Happens if the Deadline Passes
Should a client or former client elect to commence a legal malpractice case, for whatever reason, the first thing that must be done is to carefully review whether the statute of limitations has run. This applies to the attorney involved and to outside counsel hired to determine the possibilities of recovery. Nothing stops time which marches on relentlessly. Should the statute of limitations expire, a case, no matter how strong the merit, is precluded without any and all recourse.
What does this mean to the plaintiff/patient in that small minority of cases in which the case is still viable? It means that the potential plaintiff runs the risk of an adverse finding even before the trial on the merits is concluded. The trial court has the right to hear and rule on a motion for partial summary judgment that the case is time-barred. This can be a substantial factor in moving the case to a conclusion in the absence of a clearly tendentious fact issue involving the statute of limitations . In 1990 the Third District Court of Appeal, in Sochovka v. McCranie, 573 So.2d 507 (Fla. 3d DCA 1990), recognized the right of a trial court to summarily determine that a legal malpractice claim is time-barred as a matter of law. That determination, if made, becomes the law of the case as further proceedings continue, absent the fact-specific issue that raises an issue on the merits. Indeed, that is the reason that in many cases the trial court will grant a motion for summary judgment on the statute of limitations statute, leaving only the fact question for trial, often in exchange for a stand-still agreement.
The Supreme Court of Florida in Lucas v. United Automobile Insurance Company, 930 So.2d 572 (Fla. 2006), also recognized the right of a trial court to grant partial summary judgment on the statute of limitations issue after one of the parties had already made substantial monetary expenditures in preparing for the trial on the merits.
Holding on to your Rights
To protect your rights to file a legal malpractice action you must be vigilant with how long you wait until filing that case. Here are some ways to make sure that you do not miss and statute of limitations deadline. First, keep documentation on the lawyer or lawyers in question. Notate the dates of service upon which you believe the attorney sued you. That means keep documents and notes of all conversations with the lawyer. Also, it is wise to seek counsel as soon as you suspect that the attorney made a mistake. The early consultation may be helpful in giving you a good understanding of the procedural hurdles that you may face as forward. And of course missing the statue of limitations on your claim is one such hurdle.
Finding Assistance
In the multifaceted arena of legal malpractice and negligence, Florida has stringent prerequisites and timeframes within which claims must be made. Florida Statute 95.11 sets a strict time limit for filing suit in all professional malpractice cases . In addition, as is true in many jurisdictions, any attorney or law professional who represents you in a legal matter has a corresponding duty to resolve the representation competently, so if you believe that the statute of limitations within which you must seek redress is closing, it’s crucial to seek legal assistance from a qualified legal malpractice attorney without delay.
