In Texas, the statute of limitations for a personal injury lawsuit is 2 years unless an exception applies. But what many people do not realize is that the longer you wait, the harder it is to find a lawyer willing to take on the case on a contingency fee basis. Delaying in hiring a lawyer can result in several issues that could have otherwise been avoided by promptly seeking an attorney. These issues include disappearing evidence, increased litigation costs, and difficulty locating and serving the proper parties. In the end, the decision of whether to take on your case is a risk vs reward decision. Each additional issue increases risk and potentially reduces the reward. Thus, consulting a lawyer promptly is a wise choice.
Evidence Disappears if Actions to Preserve it Are Not Taken
From the moment an injury occurs, there is key evidence available to be gathered. Whether it is gathered depends upon whether someone who knows what to look for and who gets the opportunity to do so before the evidence disappears. For example, in a slip-and-fall case, you must prove a key element of notice. This means your slip and fall attorney must show that a dangerous condition existed upon the defendant’s property, and they had actual or constructive notice of it before you fell and failed to act timely to remedy it or warn you about it. Thus, in-store video evidence of the hours before your fall can be critical to proving notice in a case where the defendant claims they were unaware. If you do not take immediate steps to preserve that video, the property owner will preserve only the video of the fall itself and let the rest be recorded over and forever lost. A spoliation letter, which is a letter demanding evidence be preserved, can prevent the destruction of this vital evidence.
Commercial motor vehicle accidents are another example of the need to preserve evidence. The black box in a truck can often tell you every movement of the vehicle before the wreck and its speed. But if you do not take action to preserve it, it may be long gone or erased by the time you need it. In most cases, an experienced personal injury attorney can help you identify valuable evidence that needs to be preserved—but they cannot help you if you delay in seeking counsel.
Increased Litigation Costs Due To Time Constraints
Delaying in hiring a lawyer can also result in your case requiring increased litigation costs. For example, there are many rules in Texas that are aimed at making it harder for a personal injury plaintiff to bring their claim. One such rule is an evidentiary rule regarding the admissibility of medical records and bills. Your medical records and bills must be authenticated. This can be done by requesting copies with a sworn affidavit from the doctor (or his records keeper) and filing them. They must be filed within 90 days of the defendant filing his answer. While 90 days seem like a lot of time, hospitals and medical providers are still backlogged. COVID shutdowns made this delay even worse in many cases. it can take many months to get medical bills and records in from these providers. If you do not get them in within the time limits, you must spend about 5 times the amount of money to hire an official reporting service to serve depositions upon written questions and obtain the records and depositions from the custodians. It can be a difference of spending a few thousand vs ten thousand dollars to get your medical bills and records. If you go to a lawyer early, they can start gathering the records long before they have to file the lawsuit so that they are prepared. In the end, you are asking a lawyer to risk his money on the outcome of your case. The more he has to risk, the less likely he is to find it a smart investment of his time and money.
Challenges Finding and Serving The Defendant
Lastly, the increased difficulty locating and serving the proper parties in your case is a major drawback to a lawyer taking an older case. This is a two-fold issue. When you file a lawsuit, the law requires you to personally serve all defendants with service of process (official court papers notifying them of the lawsuit). This means that you have to 1) identify who all the proper parties are, 2) locate them and 3) serve them timely. Each of these may pose a challenge that can get harder with time.
Identifying the Proper Parties
Identifying the proper parties is not as simple as it sounds. Even in what may seem like a simple car wreck, there are often more defendants that are necessary parties than just the other driver. Other proper parties may include:
- The vehicle owner
- The driver’s employer if he was on the job at the time
- A bar or restaurant where he was drinking if the other driver was intoxicated
- Your uninsured/underinsured motorist insurance company
- Construction and/or maintenance companies that may bear some responsibility.
It can take several weeks to research and identify the correct identity and corporate names of the proper party. Sometimes all you can do is sue the ones you know and take depositions to uncover the ones you do not. If your statute of limitations is approaching, a lawyer is less likely to take on a case that has the potential for new parties to be discovered after the statute has run and it is too late to sue them.
Locating the Proper Parties
Locating the proper parties can also pose a problem if you delay in hiring a lawyer. Practicing in Houston, we often see drivers who are in the country illegally and can easily pick up and leave the country when they run into legal troubles here. The cost of locating and serving an individual internationally can not only reduce the expected return on a personal injury case, but it can create an additional risk of the attorney getting sued by his client for failing to timely sue and serve the defendant. But this is not just an issue with defendants who are here illegally. People move. They may do it to dodge service or they may do it to relocate for work.
Timely Service of Process and Due Diligence
The ease with which a defendant can be timely served is a consideration in taking on a case. The closer you are to your statute of limitations date running, the more this consideration will influence the attorney’s ultimate decision. What you need to understand about the statute of limitations is that while the law clearly gives you two years to file the lawsuit, you are then under a vaguely defined standard of “exercising due diligence” to get the defendant promptly served. If the statute of limitations has expired at the time that service takes place, the attorney’s actions in getting the defendant served as fast as possible are now under intense scrutiny.
According to the Texas Supreme Court, filing a lawsuit does not stop the limitations period from running “unless the plaintiff exercises due diligence in the issuance and service of citation.” The date of service will relate back to the filing date only “[i]f service is diligently effected after limitations has expired.” Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007). Plain and simple, if the Court decided the lawyer didn’t “exercise due diligence” in getting the defendant served, your case is thrown out and now the lawyer has to worry about you suing him.
“Generally, the question of the plaintiff’s diligence in effecting service is one of fact and is determined by examining the time it took to secure citation, service, or both, and the type of effort or lack of effort the plaintiff expended in procuring service.” Proulx v. Wells. This burden includes the need to “explain ‘every lapse in effort or period of delay.’ Alonzo v. Fort Worth Land and Cattle Co. (Tex.App. 2023)
What many non-lawyers do not understand, is that this burden to explain every little lapse or delay is very difficult for a practicing attorney. Successful lawyers do not handle one case at a time. They would go broke. Many have busy dockets with hundreds of clients. To file and serve a defendant, you have to file the papers, and then wait for the Court to send you the citation so you can have it served. Then you have a process server try to deliver it. If the person is not there, now you have to get an investigator to find them. Investigators have their own caseloads and will not typically drop everything to work on your case or their other clients will be mad.
The due diligence standard puts a lawyer in a position of not only having to drop everything else and focus on this case now but also having to make sure each person involved in the service of process chain is not delaying something they could drop everything else for and do right now—even though those people do not work for the lawyer nor care about his due diligence requirement. You basically have to call and nag everyone to ensure they are doing their job in a timely manner too. Meeting the due diligence standard can disrupt the lawyer’s entire law practice.
Lesson to Be Learned
Although there is a 2-year statute of limitations on Texas personal injury claims, waiting to speak to an attorney about your case can have a negative impact on your ability to locate key evidence, locate witnesses, and cost-effectively prove the case. Whether a lawyer takes your case depends upon whether the risk justifies the potential recovery. Waiting until the SOL is close is one of the top reasons a personal injury lawyer declines a case. If you make the risk higher and the reward less likely to recover, lawyers are less likely to take on that risk via a contingency fee agreement.
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