Beware of “outside” claims: both those that have some connection with a jurisdiction outside North Carolina and those whose subject matter falls outside your expertise.
It is difficult to turn away a client when you need the business. Especially if the case looks like a slam dunk. And it is tempting to convince yourself that you can get up to speed in a given area in no time.
Know this, however: stepping outside your geographical jurisdiction or area of expertise is an easy way to invite a malpractice claim.
Out of State Claims
Every year Lawyers Mutual receives numerous claims resulting from a missed statute of limitation in another jurisdiction.
What usually happens is that a resident of North Carolina is injured in a car accident in another state and hires a North Carolina attorney to negotiate a settlement with the tortfeasor’s insurance carrier. The attorney erroneously applies the North Carolina statute of limitation date to the accident that occurred in another state. The attorney does not realize that although North Carolina has a three-year statute of limitation for personal injury actions, the foreign state only has one year. Settlement is not reached within the applicable statute of limitation period, a lawsuit is never filed, and the client seeks to recover his damages from his attorney.
If you choose to undertake a case in a foreign jurisdiction, request an opinion letter from an attorney in that state as to the applicable statute of limitation period. Be sure and docket the proper filing date. If this is done, you will have discharged your due diligence requirement and will be able to shift responsibility to someone else if an error is made. You should expect to pay for the attorney’s services. If you feel the claim does not warrant the payment of a fee for receiving this advice, the claim is not worth pursuing.
Risk management tips:
- Identify claims that have a material connection with a foreign jurisdiction
- Determine which state’s laws apply
- Research the applicable statute of limitations
- Document your research and conclusions
- Train your staff to spot foreign claims when they come into the office.
- If there is uncertainty, request an opinion letter from an attorney in the accident state
- Docket the proper filing date
- Add a “foreign case” component to your docket system