Planning to File a Lawsuit? Remember to Check Calendar

You can lose your legal rights if you do not exercise them on time. Sometimes, being even one day late is too late.

The statute of limitations is a legal doctrine requiring that a lawsuit begin within a set time period after your claim, or your right to sue, arises. The time period varies with the kind of claim. For California cases, in state court, the period varies from 30 days to no limit.

The theory behind the doctrine is that potential defendants, in civil and criminal cases, should not have to wait on pins and needles indefinitely, wondering if or when they will be taken to court.

Besides, who would remember a 1963 car accident if an injury suit were filed in 1991? The law acknowledges that memories fade.

Some of the time limits are very short--30 to 90 days--for such cases as challenges to the validity of a municipal assessment for public improvements, an action for a tax refund, or to enforce a mechanics lien on your house.

Medical malpractice, libel, slander and assault and battery civil cases must be brought within a year. The limit is two years for suits concerning an oral contract, four years for a written contract. Fraud suits must be brought within three years. One catch here. This list tells you how much time you have in which to sue, but it doesn’t say when the time period starts. In most cases, it begins when the claim first arises. In a medical malpractice case, for example, the clock would run from the date of surgery. In some cases, the counting does not begin until you know about your claim or should have reasonably suspected it.

There are some situations in which the period might be extended because of an incapacity or special circumstances--a soldier serving overseas, for example. In one South Dakota case, a father filed a medical malpractice case on behalf of his son, who had been in a coma for four years. Although the statute of limitations had expired, the court decided it would be unfair to let the legal cause of action run out while the patient lay unconscious, unaware of his right to sue.

Whenever you consult a lawyer about a potential suit, always find out the last day that action can be taken on your claim. But don’t wait until the last day to do something. If you seek a lawyer’s assistance, give him or her sufficient time to prepare and file legal papers before the deadline.

Some federal lawsuits have different applicable limitation periods than those for state claims.

Also, remember that contracts and other written documents can change the statutory time period. Under certain insurance policies, for example, the time limitations might be shorter. Also, some contracts require written notice before a lawsuit can be filed.

One final point. The statute of limitations is a defense. That means that the defendant must assert it. In other words, even if you file beyond the limit, if the defendant doesn’t assert the defense, you may be able to proceed with your suit.