Limitation of Legal Malpractice Actions: Defining Actual Injury and the Problem of Simultaneous Litigation

81 Pages Posted: 29 Jul 2014 Last revised: 31 Jul 2014

See all articles by Tyler Trent Ochoa

Tyler Trent Ochoa

Santa Clara University School of Law

Andrew J. Wistrich

California Central District Court

Date Written: 1994

Abstract

In this article, we will first review the development of the "actual injury" tolling provision in California, from its judicial adoption in 1971 to its legislative adoption in 1977. Second, we will explore the policies underlying the legal malpractice statute of limitation and the countervailing policies that may make delayed accrual or tolling desirable in situations involving simultaneous litigation. Third, we will examine case law applying the "actual injury" tolling provision to various fact situations and analyze potential legal solutions to the problem of defining "actual injury," including the doctrine of equitable tolling. Finally, we will demonstrate how the doctrine of equitable tolling could be applied to the facts in ITT Small Business Finance Corp. v. Niles and recommend adoption of the equitable tolling doctrine as a standard for resolving future cases concerning the "actual injury" tolling provision in legal malpractice actions.

Suggested Citation

Ochoa, Tyler Trent and Wistrich, Andrew J., Limitation of Legal Malpractice Actions: Defining Actual Injury and the Problem of Simultaneous Litigation (1994). Southwestern University Law Review, Vol. 24, No. 1, 1994, Santa Clara Univ. Legal Studies Research Paper No. 33-14, Available at SSRN: https://ssrn.com/abstract=2473400

Tyler Trent Ochoa (Contact Author)

Santa Clara University School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408-554-2765 (Phone)
408-554-4426 (Fax)

Andrew J. Wistrich

California Central District Court ( email )

Los Angeles, CA 90012
United States

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