The Date That Isn't in the File: Limitations Advice on a Sparse Record
Your supervising attorney hands you a thin file and asks for the limitations section of an advice letter. The client, Maria Ochoa, slipped on a wet floor at a grocery store. This jurisdiction has a two-year statute of limitations running from the date of injury, with no tolling. Today is February 20, 2025. The file contains: an intake sheet on which Maria wrote that the fall happened 'around March 3' of 2023; eleven photographs whose metadata reads March 3, 2023; the store's incident report, obtained last week by public records request, listing February 28, 2023; and an email from Maria saying it happened 'a few days before my birthday, March 1.' Her medical records show a first treatment date of February 27, 2023. No written notice has been sent to the store and no demand package has gone out. The supervising attorney says, 'Just tell her the deadline and get a letter out today.'
1. Draft the limitations paragraph of the letter. State which date or dates you would give Ms. Ochoa, what you would tell her to do, and what you would not say.
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The paragraph should read, in substance:
'The statute of limitations in your case is two years from the date of the injury. Based on the records currently in our file, the injury is dated between February 27 and March 3, 2023, and the limitations period may expire as early as February 28, 2025 - eight days from today. We therefore recommend that you authorize us to file suit immediately. Filing the complaint, not notifying the store, is what stops the clock. Please confirm in writing the date of the fall as best you recall it, and tell us whether you were treated for any injury before that date.'
Reasoning: the earliest supportable date controls the advice. If the incident report and the medical record are right, the claim expires February 28; telling the client March 3 would gamble her claim on an unresolved fact. Stating a range and 'as early as' preserves accuracy without conceding a date we may later dispute. Do not say the claim is 'safe,' do not promise a filing date we cannot meet, and do not state a single date as established - the letter may later be read by the client, an insurer, or a malpractice reviewer. Oral notice to the store does not toll anything; only commencement does.
2. Identify the two file problems that must be resolved before the letter goes out, how you would resolve them, and what you would do on February 28 if they remain unresolved.
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The two problems are (1) the treatment date of February 27 precedes every date given for the fall, which means either the record is wrong or there was an earlier injury; and (2) the store's incident report and the client's account disagree by four days, and the report is business-record evidence likely to become the defendant's exhibit.
Resolution: call the provider for the intake note and chief complaint; ask the client, without leading her, to reconstruct the date by reference to events; obtain the original photo files with their metadata; and send a preservation letter for the store's surveillance video today, because that is the only record that could fix the date independently and it will be overwritten on a short cycle.
If unresolved by February 28, file a protective complaint alleging the injury 'on or about February 28, 2023,' and amend after discovery. A date allegation in a complaint can be amended; a claim filed after the period cannot be revived. The cost of a filing fee and a possible early dismissal is far lower than a time-barred claim, and the client should be told that trade-off in the letter itself.
3. Should the letter disclose the medical-record discrepancy? Explain your reasoning.
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Yes, but framed as a question rather than an accusation. The discrepancy is not internal strategy; it is an adverse fact that will surface in the provider's records and that the client must be able to explain. If she first learns of it at her deposition, any explanation will look constructed. If she learns of it now, she may recall a prior fall, a mis-keyed date, or a different clinic visit - any of which changes the analysis.
The letter should say: 'Our copy of your records shows a visit on February 27, 2023, which is before the date we have for the fall. Please tell us whether that visit was for a different problem, because the defense will ask.' Avoid speculating about misrepresentation, and keep words like 'fraud' or 'inconsistent' out of a letter that may be produced. Do not bury the point in a footnote; a disclosure the client skips is not candor. The scope of the disclosure is the fact of the record, not our internal assessment of what it means.