On the last edition of The Paralegal Voice, Vicki Voisin, Kim Walker and I discussed one of the worst things a paralegal will have to do during her career, and that’s telling your supervising attorney that you made a mistake. I guess the only thing worse than having to admit you made a mistake is having it documented for eternity in a published appellate decision.
Leagle.com published a recent Fifth Circuit Court of Appeals decision (Harris v. Boyd Tunica, Inc., No. 10-60452) that every paralegal student, every working paralegal responsible for tickling filing deadlines, and every lawyer who relies on filing deadlines being tickled correctly, needs to read.
Basically, a claimant lost the right to pursue a Title VII action after her lawyer’s paralegal miscalculated the 90-day deadline to file suit after the EEOC issued its right-to-sue letter. Maybe this case resonated a little more with me because the firm I work for handles employment litigation, and I’ve seen my share of right-to-sue letters.
In a nutshell, the plaintiff’s lawyer’s paralegal skipped an entire month when calculating the filing deadline:
Harris hired a lawyer, James Bell, to file suit on her behalf. She alleges that she regularly checked with her lawyer on the progress of her case. Bell allegedly requested his paralegal note the ninety-day filing deadline on the calendar and also mark the dates fifteen, thirty, and forty-five days before the deadline. The paralegal made a clerical error and skipped a month when counting days and marking the calendar. She erroneously marked the filing deadline as April 10, 2009 instead of March 16, 2009. Consequently, the complaint was not filed in federal court until April 8, 2009, which was outside of the ninety-day filing deadline.
Miscalculating the statute of limitations is one of the worst mistakes a legal team can make. In this case, the appellate court did not find that the paralegal’s and therefore the lawyer’s mistake in calculating the deadline to file suit justified tolling the statute of limitations. Bottom line, the lawsuit was not timely filed, and the plaintiff is unable to pursue her claims any further.
In real life, as soon as he learned what happened, the lawyer had to call his malpractice carrier to report a potential claim due to the missed deadline. Whether the underlying employment action was viable, and if so, what that claim was worth in terms of potential damages recoverable by the plaintiff, is unknown.
What is known is that the Court called this situation another “garden variety act of attorney negligence.” Attorneys are responsible for mistakes made by their staff, but no one wants to be the staff member that makes any kind of “garden variety” mistake. Whether your office uses paper and/or software to calendar deadlines, there is a sure-fire way to make sure the blame for this particular mistake never lands at your feet. Calculate the deadlines, enter them into your office tickler system – and then ask your supervising attorney to take the time to verify that the deadlines have been entered correctly – each and every time.