S**t Out of Luck: Don’t Blow the Statute of Limitations!
One of the biggest mistakes parties without an attorney (known as "pro se" or "pro per" parties) make is failing to realize that the statute of limitations has expired on their claims. You could have the best facts in the world—but if you blew the statute of limitations—your case is probably toast.
What are statutes of limitation?
Statutes of limitation are laws limiting the time to file a lawsuit for a particular event or set of facts. Statutes of limitation cut off a party’s right to sue another party after a certain time period. Legal claims, like the salami in your fridge, have expiration dates.
Even though judges are sometimes slightly more lenient with "pro se" or "pro per" parties, they will not (and cannot) allow you to proceed with your lawsuit if you blow the statute of limitations.
Generally speaking, statutes of limitation control the time a party has to file a lawsuit—not the time to litigate it. This means that Patrick must file his lawsuit by January 5, 2021, but the lawsuit can proceed in the court system through trial (if necessary) after that date. In other words, if the case goes to trial in September 2022, there is probably no issue with the statute of limitations, because the lawsuit was timely filed.
How do you figure out the statute(s) of limitations for your claim(s)?
Each state sets its own statutes of limitation. Depending on the type of claim, different statutes of limitation may apply, and they may be calculated in various ways. Some statutes of limitation may be as short as 1 year; others may be 2, 3, 4, 5 years, or even longer.
Keep in mind there may be more than one statute of limitations for your claims. For example, you buy a house that has multiple construction defects that the seller failed to disclose during escrow. You decide to sue for (1) breach of contract, and (2) fraud. Let’s say that in your state, the statute of limitations for breach of contract is 4 years, but the one for fraud is only 3 years. In this scenario, the safer bet would be to file the lawsuit within 3 years so you do not blow the statute of limitations for the fraud claim.
To ensure you do not miss the statute of limitations, research the law in your state as soon as you begin considering a lawsuit. If you can afford to hire an attorney — or at least get free legal resources from a self-help center — you will probably be better off. Be sure to write the statute of limitations date in your calendar and set a reminder so you do not miss it. Even a one-day delay could kill your case!
Can the statute of limitations be extended?
Under certain circumstances, a statute of limitations may be “tolled,” which is basically a fancy legalistic way of saying “extended.” Read your state’s laws and court rules to determine under what circumstances (if any) the statute of limitations may be tolled.
States have different grounds for tolling the statute of limitations. Here are some common grounds—but each state is different:
- A party is/was in the military and deployed overseas;
- A party is/was under 18 years of age;
- A party is/was mentally disabled or incompetent;
- A party is/was incarcerated;
- A party is/was in bankruptcy; or
- A party is/was deemed insane
Better to be safe than sorry.
Even if there are grounds to toll the statute of limitations, do your best to file within the statute’s time period rather than assuming it will be tolled. For example, let’s say you are 2 years into a 3-year statute of limitations, but you believe the statute should be tolled because your opponent was deployed overseas for six months. The safer choice would be to file before you hit the 3-year mark, rather than waiting 3.5 years and hoping that the judge rules in your favor that the statute of limitations has been tolled.
What if you file a lawsuit after the statute of limitations?
If you file a lawsuit after the statute of limitations expires, your opponent may file a motion to dismiss (in some states known as a demurrer). You will have the opportunity to oppose the motion and explain why you believe the statute of limitations has not expired (or has been tolled).
If your opponent wins the motion/demurrer, your case will be dismissed and the judge may order you to pay your opponent’s litigation costs. If the judge believes your lawsuit was frivolous, he or she may impose money sanctions against you, even if you are representing yourself.
For information about motions to dismiss, check out Legal Seagull's video tutorial Motions: Practice and Procedure:
As you can see, understanding the statute(s) of limitation for your case is extremely important. Failing to timely file your lawsuit could be disastrous to your case and a waste of your precious time and money.
The acronym for statute of limitations—S.O.L.—is the same as s**t out of luck. Coincidence?
For more information about filing a lawsuit, check out Preparing, Filing, and Serving a Lawsuit: