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OH: Tick Tock: The Importance of Recognizing Cognizable Events Before Filing Your Malpractice Claim

Tolliver v. McDonnell, 155 Ohio App.3d 10 (2003).

OH: Underlying criminal defense; ineffective assistance of counsel.

Student Contributor: Shiv Vydyula

Facts: Because appellant Tolliver was indigent, the court overseeing his indictment for conspiracy and for murder appointed McDonnell as his attorney. A jury acquitted Tolliver of murder but found him guilty of conspiracy to commit aggravated murder. The court sentenced Tolliver to a term of incarceration. A few months after, McDonnell withdrew as Tolliver’s counsel. The court appointed new counsel for purposes of appeal. Tolliver instructed his new counsel to file a claim for ineffective assistance of counsel alleging that McDonnell had failed to assert a defense for the conspiracy charge where the statute of limitations had run on that charge. The trial court dismissed Tolliver’s legal malpractice claim against McDonnell as untimely. Tolliver claims though that the statute of limitations tolled until the court rendered the opinion in the appeal of the criminal action.

Issue: Did the statute of limitations on the legal malpractice claim effectively toll until the court ruled on the appeal in the criminal matter?

Ruling: The court ruled that the claim was untimely. The court leaned on case law that supported that cognizable events begin the statute of limitations focus on what the client is aware of and not on extrinsic judicial determinations. The court ruled that the cognizable event here was when Tolliver instructed his new counsel to file the appeal.

Lesson: Cognizable events and their analysis seem to lean towards prevention. Here, it prevents the attorney being sued for malpractice from being exposed to suits with overly broad statutes of limitations for bringing claims. Clearly the outcome in the criminal case suggests there was something that McDonnell could have seen, but ultimately, the statute of limitations saved him.

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Posted in: Criminal Law, Ohio, Statute of Limitations