Common Sense Reigns – Epstein is Dead – Sort of
Since 2005, legal malpractice attorneys in South Carolina have been navigating the pitfalls of determining the statute of limitations under Epstein v. Brown, 610 S.E.2d 816. For those unfamiliar with Epstein, here is the skinny: Doctor gets hammered by a jury; lawyer tells Doc not to worry because the verdict will get reversed on appeal; after MORE THAN THREE YEARS on appeal, the verdict is upheld; Doctor sues lawyer; Supremes say “not so fast” – the statute of limitations was deemed to have commenced upon the return of the adverse verdict notwithstanding the fact that the same lawyer appealed the verdict; as a result, the legal malpractice case was time barred. EPSTEIN RATIONALE: The good Doctor knew that he was harmed upon the return of the verdict and the appeal was nothing more than an effort in mitigation. Tricky, right?
RIGHT. In Stokes-Craven Holding Corp. v. Scott Robinson, Opinion No. 27572 (Sept. 9, 2015), the Supremes returned to Epstein and tossed it. Like Epstein, Stokes-Craven involved another “trial gone wrong” underlying case and subsequent unsuccessful appeal. Also like Epstein, the same lawyer represented the client on both the trial and appellate levels. Although the Stokes-Cravenopinion points out factual distinctions between the two cases, the opinion reads much more like our Court availing itself of an opportunity to kill a poor precedent that left South Carolina in the noted minority of jurisdictions around the Country which failed to adopt the continuous representation rule to toll the running of the statute of limitations in situations such as these. While not adopting the continuous representation rule, our Court did adopt a new rule that strikes a pretty fair middle ground between Epstein and the majority.
Here is how the compromise works: 1) we still recognize the “discovery rule” in determining the statute of limitations for legal malpractice; 2) the statute does not begin to run until the client is aware of all four elements of the cause of action (duty, breach, causation, damage); 3) the statute “MAY” be tolled during an appeal provided the client is not aware that he or she has been harmed by errors of the attorney; and 4) the final outcome of an appeal represents the outer limit of the time for tolling purposes (ie. the client can say prior to the affirmation of an appeal that he or she did not appreciate that they were harmed by errors of the attorney, but the client better wake up when the final decision is rendered).
CAUTION: The new rule does NOT adopt the continuous representation rule and it does NOT say that the statute of limitations is automatically tolled during the pendency of an appeal. For example, what if the client writes an email that says in essence “my lawyer stinks, but I will let her try to fix this mess on appeal even though it’s costing me a fortune?” One should expect that the time is not tolled for this client. While we would still advocate that the continuous representation rule should prevail, the Stokes-Craven test seems a reasonable compromise that embraces the longstanding discovery rule in South Carolina. The bottom line is this: The objective test of Epstein has been replaced by the subjective test of Stokes-Craven. Determining the commencement date for the running of the statute of limitations in legal malpractice remains a complicated matter, although Stokes-Cravenappears far more client-centric than its predecessor.
Ronnie Richter and Eric Bland
Published by Matt Ferner at the Huffington Post on 9/29/15 at 9:36pm. Ferner writes:
A federal lawsuit filed Monday claims the last words that 19-year-old Zachary Hammond heard were from a Seneca, South Carolina, police officer shouting, “I’ll blow your fucking head off.” Seconds later, the officer unloaded two bullets into the unarmed teen, killing him as he sat in his car in the parking lot of a Hardee’s on July 26.
Hammond’s parents are now alleging in U.S. District Court that Lt. Mark Tiller unjustifiably killed their son during an undercover police drug sting gone wrong.
The Seneca Police Department, Tiller and police chief John Covington are all named as defendants. The suit, filed in the Anderson division district court for the District of South Carolina, seeks unspecified damages.
Monday, September 28, 2015, Bland Richter filed a federal lawsuit seeking to force the release of evidence that could answer what happened when Zachary Hammond, a Seneca teen was fatally shot by a police officer.
Bland said the lawsuit would allow him and Hammond’s parents, Paul and Angie Hammond, to get access to evidence in the shooting, including dashboard video and audio recordings. Other evidence Bland said would become available included depositions of the Seneca police chief, Tiller and others at the shooting along with investigative files from the South Carolina Law Enforcement Division.
Read related articles:
Anderson Independent: Attorney: Federal lawsuit filed in Zachary Hammond case
The State: Federal lawsuit filed in Seneca police shooting case, attorney says
WMBF: Family of Seneca teen killed by officer file civil suit
WYFF4: Federal lawsuit filed in death of teen shot by officer
SENECA, SC (WYFF) - The parents of an unarmed 19-year-old who was killed by police held a news conference Tuesday afternoon, a day after the solicitor who is handling the case said she will not share the preliminary findings of the State Law Enforcement Division’s investigation into the shooting. The Hammonds said they feel like they have played by the rules, but have gotten no answers.
Angie Hammond said Tuesday that witnesses to the shooting say that Tiller “murdered Zach in cold blood in a car that was not moving.”
She said 10th Circuit Solicitor Chrissy Adams has been saying the family would get answers once the State Law Enforcement Division investigation was complete. Angie Hammond said SLED gave Adams its findings on Aug. 31, and she “has been lying for the past two weeks.”
“My son was murdered, and someone needs to tell me why,” she said.
READ MORE FROM WISTV
Tenth Circuit Solicitor Chrissy Adams said she has received the investigative report from the State Law Enforcement Division in the Seneca police shooting of Zachary Hammond, an unarmed teenager, but she expects it will be “several more weeks” before she announces a decision.
Eric Bland urges that the video and audio recordings should be immediately made public.
Read recent articles:
Anderson Independent Mail: SLED finishes Zachary Hammond investigation; files still withheld
Greenville News: SLED turns report over to solicitor in Zach Hammond case
The State: SLED turns report over to solicitor in Zach Hammond case
PICKENS, SC (Fox Carolina) Video footage — whether from dashcam or bodycam — has been increasingly used by law enforcement agencies across the country.
In the case of Zachary Hammond, its been more than 6 weeks since his death and the dashcam video has still not been released.
Senator Larry Martin of Pickens is drafting a bill that would give law enforcement 30 to 45 days to either release video evidence or allow a neutral third party judge to view it.
Read more: http://www.foxcarolina.com/story/30003701/upstate-lawmaker-drafting-bill-for-swift-dashcam-video-release-after-zachary-hammond-case#ixzz3lR6TgpbD
SENECA, SC (AP) — The family of a Seneca teenager shot and killed by police during an attempted drug bust wants federal authorities to be part of the investigation into the shooting. Read more.
It has now been six weeks since 19 year old Seneca teen, Zachary Hammond, had been shot by a police officer at the Hardee’s in Seneca. The dashboard video has still not been released to the public.
“We are screaming for it to be released,” said Eric Bland in an Anderson Independent interview.
Read the entire Anderson Independent article.
Tori Morton, the passenger in Zachary Hammond’s car at the time of his death, reveals her account of the story. Below are several articles depicting this account.
WYFF4: Passenger in unarmed teen’s car describes deadly police shooting
Fox Carolina: Witness in Seneca shooting has differing account from law enforcement