When it comes to things which can trip up your personal injury claim, there are a few less forgiving traps than the statute of limitations. Consider that an injury victim could be in the most deserving category having been completely blameless for a serious accident. The injuries could be catastrophic and the right to recover absolute. Yet if the injury victim misses the statute of limitations deadline by just one minute, then there will be no compensation.
Why such a harsh rule? Personal injury law is actually a delicate balance between the rights of plaintiffs and defendants. Plaintiffs have the right to recover compensation. Defendants have the right to defend themselves, and, after a certain period of time, to know that they will be free of any claims. While the statute of limitations deadlines are harsh in their effect, their operation in the law is generally well-known.
Under Virginia law generally, an injury victim must file a lawsuit within two (2) years of the date of accident (if the victim has not already settled the case first). Things get complicated when there are minors, disabled, or incarcerated claimants involved. Also, the deadline may be somewhat unclear if the claimant is asserting a medical malpractice claim. (Deadlines may be postponed when the malpractice is concealed by the doctor or if there has been an ongoing course of treatment following the malpractice).
Since the statute of limitations rule is so harsh, an injury victim is advised to err on the side of caution. Our office uses a computerized calendaring system where input the deadline and then several back up deadlines in the weeks and months before the final date. If a suit is going to be filed, it needs to be filed with sufficient time to assure that the clerk’s office has marked it “received/filed” and that there are no technical problems with the filing. In one sad recent case involving another law firm, the suit papers were, in fact, left with the clerk but the filing fee was $1.00 short. Before the plaintiff’s attorney found out about the problem, the statute of limitations deadline passed, and a good personal injury case expired.
In addition to the obvious problems the statute of limitations law creates, it can also set a psychological trap for the unwary. Claimants and even law firms can fall into the trap of procrastination: after all, two years is a long time to get a lawsuit filed. People forget that the hard work of a lawsuit must be done at the early phases before a lawsuit is filed. Most importantly, the claim must be thoroughly investigated early on in the case. Lawyers like to consider evidence to be “perishable” just like vegetables in the produce aisle. Skid marks in the road erase over time. Surveillance videotape may be destroyed or recorded over. Witnesses leave town or their memory begins to fade. The failure to secure the most basic evidence can cause damage to a personal injury case well before the statute of limitations is a problem.
For this and so many other reasons, it is crucial to retain counsel early if it is your intention to do so. Think of your case as a bunch of ripening bananas which will be covered in brown spots in just a day or so You don’t want to procrastinate in using those bananas!
Reviewing your case with competent counsel costs nothing. Even if you decide not to retain counsel, you may feel better just knowing that you did.