My Lawyer Missed a Deadline. What Now?

"My lawyer missed a deadline" can mean very different things. Some missed deadlines are embarrassing but harmless. Others end a case permanently. Before you do anything else, get the answer to three questions in writing: which deadline, what the court or agency did because of it, and whether anything has been filed to fix it.

The last row catches people off guard. In Schmidt v. Coogan, a Washington case, a lawyer filed a slip-and-fall complaint just days before the limitations period ran but named the wrong defendant. He amended the complaint twice, and the trial court still dismissed the case as time-barred. That is a missed deadline even though something was filed on time.

A missed statute of limitations usually ends the underlying claim permanently, which is why it so often turns into a malpractice question instead of a motion to fix it. A missed answer deadline, by contrast, often leads to a default judgment that a court may be willing to set aside if someone acts quickly.

Courts have tools for undoing mistakes, and using them is often worth far more than a malpractice claim, because it gets you your case back instead of a lawsuit about your case.

In federal court, Rule 60(b) of the Federal Rules of Civil Procedure lets a judge relieve a party from a judgment or order for "mistake, inadvertence, surprise, or excusable neglect." Under Federal Rule of Civil Procedure 60(c), a motion based on mistake or excusable neglect must be made within a reasonable time and no more than one year after the judgment or order. "Reasonable time" can be much shorter than a year, so waiting is risky. Every state has its own version of this kind of rule, with its own deadlines and standards.

Some deadlines are much harder to cure. Appeal deadlines are usually treated as strict. A statute of limitations that has fully run generally cannot be revived by a motion, although some states have narrow doctrines (such as rules letting an amended complaint "relate back" to the original filing) that a new lawyer should check before assuming the claim is dead.

If the deadline gets fixed and your case goes forward, you may have no malpractice claim at all, or only a small one for the extra costs the mistake caused. That is a good outcome. A malpractice case is slow, expensive, and uncertain; a restored case is usually better.

Most states base their lawyer ethics rules on the American Bar Association's Model Rules of Professional Conduct. Two of those rules matter most here.

ABA Model Rule 1.3 requires a lawyer to "act with reasonable diligence and promptness in representing a client," and the official comment names overlooking a statute of limitations as an example of how delay can destroy a client's legal position. The same comment calls procrastination perhaps the most widely resented professional shortcoming.

Model Rule 1.4 requires a lawyer to keep the client "reasonably informed about the status of a matter." A lawyer who misses a deadline and does not tell you has arguably broken a second rule on top of the first. California puts a similar duty in statute: Business and Professions Code section 6068(m) requires lawyers to keep clients "reasonably informed of significant developments."

Breaking an ethics rule is not, by itself, a malpractice lawsuit. It is grounds for a bar grievance, which can lead to discipline but usually does not put money in your pocket. The difference is covered in legal malpractice vs. a bar complaint.

To win a malpractice case over a missed deadline, you generally have to prove four things: you had an attorney-client relationship, the lawyer fell below the standard of care, the mistake caused your loss, and you suffered real damages.

With a plainly missed filing deadline, the breach part is often the easiest element. The hard part is causation and damages. You have to prove what would have happened if the deadline had been met. That is called the case within a case: you essentially try the original lawsuit inside the malpractice lawsuit.

A missed deadline is legal malpractice only if you can show that, had the deadline been met, you would have won or settled the original case for a measurable amount. If the original claim was weak, the lawyer's mistake may not have cost you anything a court will recognize. Many states also look at collectibility: whether you could actually have collected a judgment from the original defendant.

What the Schmidt case shows about value

After her slip-and-fall case was dismissed, Teresa Schmidt sued her lawyer. According to the Washington Supreme Court's 2014 opinion, a jury in 2003 returned a verdict of $32,000 for past economic damages and $180,000 for noneconomic damages. The trial court then ordered a new trial on damages, and years of further litigation followed over what she could recover, including whether emotional distress damages were available at all (the court held they were not on those facts). The lesson: even a clear missed deadline can mean a long fight over what the lost case was worth.

When a missed deadline is not malpractice

Not every missed date is actionable. If the court extended the deadline, if the late filing was accepted, or if the missed step made no difference to the result, there may be nothing to recover. The same is true when the lawyer chose not to file something as a strategy call, such as skipping a motion that had little chance of success. Courts give lawyers room for reasonable judgment calls, which is covered in what is not legal malpractice. If a missed deadline changed nothing about the outcome, a malpractice claim usually has no damages to recover, even when the lawyer was careless.

Most of these cases also need an expert witness, another lawyer who testifies about the standard of care and sometimes about the value of the underlying case. See how malpractice experts work.

The cruel irony of a missed-deadline case is that the client can miss the next deadline too. Every state has a statute of limitations for legal malpractice, and many are short.

In California, Code of Civil Procedure section 340.6 generally requires a malpractice suit within one year after you discover, or reasonably should have discovered, the lawyer's wrongful act, and never more than four years after the act, whichever comes first. The statute pauses (tolls) that clock in listed situations, including while you have not yet suffered actual injury and while the same lawyer keeps representing you on the same matter. That second rule is called continuous representation, and not every state follows it.

Other states use different periods and different starting points. Some start the clock when the mistake happens, some when you discover it, and some have an outer limit called a statute of repose that cannot be extended. Check your state's rules in the national table, and assume the clock started the day you learned about the missed deadline.

1. Ask in writing. Email the lawyer: which deadline was missed, what the consequence was, and what is being done. Keep the reply.
2. Get your file. ABA Model Rule 1.16(d) requires a lawyer, when the representation ends, to surrender "papers and property to which the client is entitled." See how to get your case file.
3. Pull the court docket. Most court dockets are public. The docket shows filing dates, orders, and any dismissal.
4. Write a timeline while your memory is fresh: when you hired the lawyer, what you were told, and when.
5. Do not sign a release. Under ABA Model Rule 1.8(h), and state versions such as D.C. Rule 1.8(g), a lawyer may not settle a potential malpractice claim with an unrepresented client unless the client is advised in writing to get independent counsel and given a reasonable chance to do so.
6. Talk to an independent lawyer about both fixing the deadline and the malpractice question.

If a missed deadline cost you a case or a defense, a free case review takes about two minutes and can connect you with an independent attorney in your state who handles legal malpractice claims.