Las Vegas Sun

September 21, 2017

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Five questions with UNLV law professor Thomas Main:

Dissecting Nevada’s statute of limitations

Among the more surprising ways Nevada's two-year statute of limitations protects defendants from excessive litigation is by actually dissuading potential plaintiffs by giving them ample time to think about filing suit.

"Strangely, and somewhat perversely," shorter time limits — like that of Kentucky, Louisiana and Tennessee, which span one year — tend to backfire because people often feel rushed into taking legal action after perceived wrongdoing, says UNLV law professor Thomas Main, who specializes in civil procedure.

In a conversation with the Sun, Main dissected Nevada’s statute of limitations in cases involving personal injury and death:

How exactly can a longer statute of limitations subdue litigation?

Those statute of limitations periods — one way of thinking about them is that they give a person who would file a lawsuit a chance to see whether or not they need to file a lawsuit. If a statute were only 30 days or 60 days, everybody would have to hurry and find a lawyer and file a lawsuit before they really found out whether or not they needed to.

That is one often-overlooked thing — the virtue that, in a sense, it can discourage lawsuits because you can wait and see if you need to file one.

Over the course of years, a person can look back and realize an injury was just a bad weekend and one missed day of work.

By contrast, do shorter time limitations create more lawsuits?

Short statutes of limitations, strangely and somewhat perversely, encourage lawsuits because you have to file your claim in order to preserve it.

On one hand, short statutes of limitations eliminate lawsuits because if you don't get your act together while you're still in the hospital and find a lawyer, you could lose your suit. So, on that hand, short statute of limitations extinguishes claims, but they also encourage the filing of claims.

It's sort of a complicated from a policy perspective.

Is it better to sue quickly or take your time?

There is an incentive for people in some instances to go forward sooner in that two-year period because once an insurer's money is paid out, we can imagine that insurance company is going to say, “Hey, we're out of this mess; we've already reached our aggregate limits on this.”

This is easier when people know sooner rather than later whether they're injured or not — sometimes there's exposure to a product or something, and there can be a latency period where it's understandable why someone may not file suit for a year or more.

Aren't there other ways to get money?

It's a question of whether a defendant has assets that can be reached.

Sort of the standard in litigation is that the insurance policy is phase 1. For most litigations, it's the end because it's really hard to get money from a defendant.

Lots of times, in a practical matter, although certainly not as a formal legal matter, the insurance payout is sort of the target in the end.

But if you want to chase down more money in addition to the insurance payout, it's certainly your legal right as a plaintiff to go after the defendant's assets. And then, that's a function of which assets are reachable and can they be liquidated.

That can be expensive and time-consuming.

How frequently do these personal injury cases go to trial?

Most people settle right away. Statistically, you never reach a trial.

I teach civil procedure, and I joke about it, but I call a trial a unicorn. You just don't see them. It's a rare event in a civil case, statistically, that we actually have a trial.

It's much more likely that a case is resolved in mediation and settlement.

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