In this episode, Wes Collins of Harvell and Collins emphasized the critical importance of understanding and adhering to statutes of limitations and litigation deadlines to avoid costly legal mistakes. Key issues discussed included proper timing for filing lawsuits, the consequences of missing service or response deadlines, and the significance of raising affirmative defenses like statute of limitations. They also highlighted how complex litigation matters require careful analysis, competent legal counsel, and diligent deadline management to protect clients' rights effectively.

Importance of Statute of Limitations in Litigation

• Statute of limitations is crucial in litigation because missing a deadline can result in dismissal or loss of a claim. Different claims have different limitation periods, e.g., constructive fraud has a 10-year statute, while breach of contract typically has three years. [05:00]

• The statute of limitations may begin at different times, often when the harm is known or should have been known, and may be influenced by contract ambiguities or legal interpretations. [08:00]

• Example of a Hurricane Florence insurance claim where the statute of limitations was close, and a detailed analysis led to a successful filing and eventual recovery for the client despite challenges with prior counsel. [08:20]

• Constructive fraud as a legal claim can extend the limitation period and revive claims that would otherwise be time-barred. [13:30]

Affirmative Defenses and Their Importance

• Statute of limitations is an affirmative defense that must be raised in the defendant's answer to the complaint or it is waived. Other affirmative defenses include statute of frauds, estoppel, waiver, and latches. Missing to raise these can be detrimental. [15:30]

• Proper legal counsel is essential in litigation to avoid missing these critical defenses. Small claims court is an exception where self-representation is more feasible. [18:30]

Case Interpretation and Analysis

• Litigation requires full case interpretation, not focusing solely on one aspect. Different types of cases (motor vehicle accidents, contracts, elder abuse, banking, corporate disputes) require nuanced analysis of facts and applicable statutes. [19:00]

• Preparing a thorough and legally sound complaint can take substantial time, sometimes weeks, to ensure all deadlines and issues are properly addressed. [22:00]

Service of Process and Response Deadlines

• After filing a lawsuit, the summons and complaint must be served on the defendant within 90 days. Failure to serve timely can cause dismissal or loss of claims. [22:30]

• Upon being sued, failure to respond or answer the complaint within the time frame (often 30 days) can lead to entry of default against the defendant, effectively admitting all allegations and potentially ending the case. [24:00]

• Setting aside an entry of default requires prompt action; delays make it less likely the court will permit it, especially if the plaintiff has proceeded with depositions and discovery. [25:40]

Discovery Deadlines and Responses

• Discovery involves interrogatories, requests for production, and requests for admissions, with usual deadlines of 30 days to respond, extendable by 30 days if requested timely. Failure to respond timely results in waiving objections and automatic admissions. [26:20]

• Requests for admissions are particularly critical; failure to answer means admitting those facts, which can end a case prematurely. [27:30]

Scheduling Orders and Expert Witness Designations

• Courts issue scheduling orders requiring parties to meet deadlines such as designating expert witnesses within certain timeframes.

• Failure to identify experts before trial can preclude a party from using expert testimony, causing a significant disadvantage. This is especially important in complex cases such as property damage disputes. [28:00]

General Advice on Litigation and Mistakes

• Litigation is complex and fraught with deadlines that, if missed, can have huge negative consequences. Having competent legal representation familiar with these procedural and substantive requirements is essential. [29:30]

• Changing attorneys after mistakes occur may benefit the client since courts often give more leeway to new counsel to get up to speed and resolve issues. [30:20]

Examples of Statute of Limitations Triggering Events

• The statute of limitations trigger can be complex, especially for latent injuries or fraud claims, where the harm or fraud is discovered after some delay.

• For example, post-hurricane damage might only be discovered months later, affecting when the limitation period starts. Additionally, fraud is inherently secretive and may only become apparent later via investigation of bank records or medical records. [31:00]