When you file a civil lawsuit, such as for legal malpractice, the time you have in which to act is not indefinite. The law calls this limited timeframe a statute of limitations. Its purpose is to protect the rights of defendants: in this case, your former lawyer.
Depending on the offense and the jurisdiction, the statute of limitations length can vary. In California, the statute of limitations on legal malpractice is one year. However, in order to know whether you are acting within that timeframe, you need to know when the statute of limitations starts. That can be a more complicated matter than you realize.
What constitutes an actual injury?
On the surface, the law seems straightforward: An action for legal malpractice shall begin within one year after you, as the plaintiff, discover or should have discovered an omission or wrongful act by your attorney. The significant question is when did you sustain an actual injury?
In the eyes of the law, if you have to hire another attorney to represent you in a case of legal malpractice, the fees that you pay to the new attorney count as damages. Therefore, your statute of limitations starts running once you end your professional relationship with your old attorney and hire a new one.
What if the statute of limitations runs out during a new case?
However, what happens if your new attorney advises you not to file a legal malpractice suit, saying that he or she can return to the original case and return a favorable result? There are two possible outcomes.
The jury may render a decision in your favor, which means that you have achieved your objective. However, if the jury does not render a favorable decision, it may be too late to file a legal malpractice case against your original attorney if your statute of limitations has run out before the second case reached its conclusion.
Nevertheless, because your second attorney discovered facts constituting a wrongful act or omission by the first one and failed to direct you toward filing a legal malpractice suit, you may now have grounds to sue the second attorney for malpractice. A new statute of limitations applies, and now that you know when the clock starts running, you are better equipped to act before time runs out.