Statutes of Repose and Comparative Fault in Tennessee

The Tennessee Bar Association has published the most recent edition of the Tennessee Bar Journal, which includes my latest article "Protecting Yourself From Statutes of Repose."  

The article discusses the impact of statutes of repose on tort recoveries in cases involving comparative fault and gives tips to lawyers on how to avoid adverse consequences of statutes of repose.

Ironically, and in the very same edition of the Tennessee Bar Journal in which I criticize statute of repose, the Tennessee Bar Association announces that it has decided to ask the Tennessee General Assembly to grant one to lawyers.  From the TBA President:

Both the Board of Governors and the House of Delegates agreed that the agenda [for the TBA] should include attempting to obtain the passage of a statute of repose for legal malpractice claims. I am personally in favor of this effort as well. Those of you who know me may be surprised by that fact, as I proudly carry the title of plaintiff’s lawyer, and am generally opposed to legislation that limits the rights of the citizens of our state. In fact, one of my fellow trial lawyers for whom I have great admiration and respect, John Day, has a column in this edition of the Journal, which sets forth some reasons that he believes statues of repose are a bad idea. So why do I believe that this is an appropriate course for our association?

Currently, given that there is no statute of repose applicable to legal malpractice claims, lawyers and their families, as well as those law firms by whom they have been employed, have virtually limitless exposure to malpractice claims. At present, a lawyer can be sued for malpractice decades after work was performed. In that instance, the lawyer may have destroyed the file, and if the case was not of significant time duration, the lawyer may not even have an independent recollection of the matter. In those situations, it is virtually impossible to mount a reasonable defense. This raises a question of fundamental fairness. There also should come some point in each lawyer’s career that they should be able to retire from the practice without continuing to worry about whether they might be sued for work they performed many years before. It is important to note that a statute of repose would not apply if a lawyer intentionally covered up acts constituting malpractice, as those would be exempted from the statute of repose.

This should be interesting.  The Tennessee General Assembly has demonstrated that it looks forward to the opportunity to limit liability for special interest groups.  Lawyers are a special interest group.   So this will be easy, right?  But the General Assembly has made it quite clear that it does not like the civil justice system, judges  or lawyers.  So, will the General Assembly grant lawyers a statute of repose (that gives clients 333% more time to sue lawyers  than patients have to sue doctors) or will it dig down deep and, in the name of consumer protection, reject the effort?  And, if it does, how can it rationally allow any statute of repose to stand?

Some good legislator needs to introduce bills that repeal every statute of repose granted in favor of every special interest group.  That way, when the bill that grants a statute of repose for lawyers is rejected, the same legislators can go ahead and get rid of every single one of them.  Without exception. There is no rational way it can do anything else.

One last point.  it is important to note that despite the fact that the TBA and I disagree on this point, the TBA ran my article anyway.  Indeed, President Cynthia Wyrick called me to discuss the issue.  It is wonderful to be a part of a profession and a professional association that not only allows people to disagree but actually gives a microphone to those who argue against "The Man."