Should There Be a Uniform Statute of Limitations?

by Rich Cassidy on December 10, 2012

The Simplex Time Recorder Co. Gardner, MA, USA. Photo by Barbirossa.

Regular readers of this blog are likely familiar with the Uniform Law Commission. It’s an important part of my professional life and a subject I write about frequently.

Currently, I chair the Commission’s Committee on Scope and Program. That Committee is responsible for vetting proposals for new uniform and model laws and making recommendations to the Executive Committee about future study and drafting committees.

The weekend before last, members of the Uniform Law Commission leadership team met with members of the leadership team for the Uniform Law Conference of Canada. The ULCC, which was founded in 1918, seeks “to harmonize the laws of the provinces and territories of Canada, and where appropriate, the federal laws as well.” (Uniform Law Conference of Canada Home Page)

We talked about potential joint projects, and one such project is underway. Together, we are working to draft a statute on the Interjurisdictional Recognition of Advance Planning Documents that would provide for cross-border recognition of powers of attorney for property, healthcare, healthcare instructions, and related documents.

We also learned about an impending Canadian project that may have potential for the United States. The ULCC has a Uniform Limitations of Actions Act and is considering updating that statute.

After hearing about their project, our leadership team is evaluating whether such a proposal has merit for the United States.

The idea seems worth serious consideration. Many states have similar principles that guide the law in this area. For example, most statutes of limitations have a discovery rule. That is, a statute of limitations begins to run when the claimant knows sufficient facts so that a reasonable person would understand that they have a claim. Otherwise a claim could expire before an injured party knows that of the claim. Most states also agree that after some reasonable period of time, claims should expire. Potential defendants are eventually entitled to certainty.

Animated watchTick tock, tick tock. Time marches on, and as it does, claims expire at different rates in different states. Typically, statutes of limitation are treated as procedural, so that the limitation established by law in the forum state governs. Since each state has its own statute of limitation scheme, knowing exactly when a claim will expire requires identifying the claim, the place in which litigation might be brought, and then finding the applicable statute. All this can make figuring out a particular statute of limitations difficult.

That difficulty can cause unjust results. Defendants can believe that the applicable statute of limitations has expired and dispose of records and other evidence that may prove critical for their defense, or to a plaintiff trying to make a claim. Defendants can’t identify the period of limitation unless they know where litigation might be brought.

Plaintiff’s counsel may also have difficulty identifying the right statute of limitations. Missing a statute of limitations is one of the most common claims of legal malpractice.

Would a uniform statute of limitations simplify the law and advance the interests of justice? The answer seems to be “yes,” at least if such an act were widely adopted.

One foreseeable problem relates to the time periods established by particular statute of limitation schemes. Different states often select varying time periods for the same claims. For example, some states are very negative about personal injury claims. Some such states have very short limitations as to personal injuries.

Other states have particularly short statutes of limitations relating to local industries that are favored by state policymakers. For example, here in Vermont, the statute of limitations on most personal-injury claims is three years. But the statute of limitations on claims arising from the sport of skiing is only one year.

Could consensus be reached on a reasonable scheme that could be adopted by many states? That is the key question for determining whether a uniform law on the statute of limitations would be useful and successful.

No decision has been made on the question whether the Uniform Law Commission should begin a study of this potential project. I’d love to hear what readers think about whether such a project is worthwhile.

Please feel free to comment.

Rich

(The Animated Watch above is courtesy of Ebaychatter0)
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Addendum

Readers,

Let me add three points of clarification, based on the comments I have received so far:

1. The idea of a Uniform Statute of Limitations is for civil, not criminal cases;

2. The idea is for different periods of limitation for different categories of claims, not one single limit. So there might be one period of limitation for tort claims, another for contracts, etc.; and

3. The idea is that many states and territories would adopt the same scheme to make that applicable limitation the same no matter in which jurisdiction the claim is ultimately filed.

I hope that clears up any confusion.

Rich

{ 6 comments… read them below or add one }

Lawrence R. Gelber December 12, 2012 at 11:09 am

Federal claims in the US are subject to identical limitations periods for the particular offense in whatever state the federal court is sitting.

State claims do have varying limitations periods for the same type of claim (breach of contract may be six years in some states, four in others) and it gets further convoluted by principles of “conflicts of laws”. Also, I can litigate a contract case in New York that applies Texas law, for example, pursuant to the express terms of the agreement at issue.

You are correct – it is confusing, and perhaps it would be fairer to make laws more uniform, but I think the complexity, coupled with all the existing jurisprudence would make the task too expensive to practically implement.
.

David Pardue December 12, 2012 at 11:12 am

That is a good question. There is no question that uniform laws are useful for practitioners with a multi-state practice, and saves money for the clients.

Just my opinion, I think it would have a tough time getting off the ground. Uniform laws in other areas have greatly influenced state law over time and getting a consensus on a uniform law is much easier among scholars and practitioners than it is in legislatures. However, when presented with a prepackaged uniform law, especially one that has stood the test of time, most states end up passing it or something very close to that. This is a decades long process.

Many states have very similar statutes of limitation such as two years on personal injury torts, and four years on verbal contracts. On the other hand, securities fraud has very different state time bars as to the limitation period from the time of the investment and the length of the time allowed from the time of the discovery of the fraud. Having more uniform rules would help this greatly. I have had cases where multiple investors were duped by the same broker but lived in different states, could not afford to all sue where the defendant was, and thus some had remedies and others did not because of their residence. That didn’t make much sense but that is our system.

The nice thing about uniform laws is that they are done by a committee of lawyers with no legislative power, they are only suggestive and thus do not cause controversy over federalism because the states can do as they please with them.

Scott W. Welch, III December 12, 2012 at 12:20 pm

No, I do not think a uniform Statute of Limitations is workable or advisable. Existing statutes of limitation are not uniformly procedural only, because in some jurisdictions both the right and the remedy are barred. As long as each state creates or defines various causes of action, each state should be permitted to provide the period of proscription for that action.

Bernard Gore December 13, 2012 at 10:41 am

Personally I find the whole concept of a statute of limitations unjust. If you’ve committed a crime there shouldn’t be a point at which you “got away with it” just because you’ve managed to avoid being found out for that long!

I do think there may be some more justification for a statute of limitations in some limited cases in civil cases, but still not in most. If someone has done you harm, then they shouldn’t be able to escape this just due to the time elapsed – a slander made 50 years ago can still cause harm if it re-emerges now, which is happening more and more as old content gets digitized and available online.

Doug White December 19, 2012 at 3:41 pm

Seems like a formula to race to a universally-worst minimum for plaintiffs to press claims within the limit for their particular situation.

Every State defines its important, even vital niches for prosperity from some industry sector, a sector for which the State tweaks its laws to benefit.
- South Dakota, which found its niche in another law category: Usary, now finds a mutual affinity with the interests of the Bank Credit Card entities that moved there.
- Delaware, for almost all corporations, is a popular State for incorporation.
- Texas seems to favor petroleum.
- Metals Mining may be favored in Montana.
- Coal in West Virginia.

I suggest that for every State that seems to shorten statutes of limitation for a favored business sector, there may be a handful or even many States who lengthened their limits years ago, perhaps in response to an outrageous Wrong that could not be corrected due to the time limit.

Those harmed by those wrongs do not have the same voice, the immediacy, the organic memory and outrage as the next batch of 10 limits, with 150 yet to go, scheduled for the committee’s work this week.

Meanwhile, the States most aligned with the topics of the current session bring the full-court press to assure the least onerous limits are passed in the uniform code for their particular skin in the game.

So it continues, the shortest limit consistently selected for just about every slice of business activity.

I don’t actually object to the concept of unified law, but think we need to devise a fair thumb on the scale to balance the one-sided lobbying.

Maybe others will explore that idea to help you grow the feedback and incorporate the “thumb” in the efforts.

Dmitry Polonsky December 19, 2012 at 3:43 pm

Would it not start State Rights V Fed political debates ? Sounds to me like pouring fuel in tho a fire… if it Aint broke, don’t fix it.

A uniform code would make more scenes though. But then it would be dictated by the fed.

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