Do you know what laches is? It’s not Spanish for milk or plural for those things on your door (although that’s how it’s pronounced latches). Laches’ etymology is French for “remissness” or “slackness” (from Old French laschesse). We lawyers heard laches in first year of law school. We have to listen up again. Our Aspen law firm has the chance to successfully defend a case and laches may kick out the other side’s case. They safely waited – so they thought – to the last minute of the statute of limitations. Laches can shorten your time to sue. Lawyers from Aspen to Denver, Vail to Durango must be aware of this year’s Colorado Supreme Court laches decision in Hickerson v. Vessels, 316 P. 3d 620, 623 (Colo. 2014).
Laches is an old doctrine – but it protects against delay that would harm your adversary. Laches is equity and equity means fairness. Delay is not fair. Client and lawyer must be very alert. Hickerson pounds this point home:
“The essential element of laches is unconscionable delay in enforcing a right under the circumstances, usually involving a prejudice to the one against whom the claim is asserted.”
Statutes of limitations are noted on our yellow pads with the acronym — S.O.L. (which is aptly short for something else). “Blowing” the S.O.L. will cost a person with a claim, unless another equitable doctrine comes into play called “tolling.” Laws have been passed this century to assign limitation times to different types of claims. Some claims have very tight periods – harassment on the job or suing a public entity such as the airport authority where you were injured. Others periods are longer such as the 6 years to sue that ex-brother in law you lent money to and who left town.
The word Laches will spell even more trouble for the unwary with the Hickerson decision. It may not be good enough to Google the statute of limitation for your contract or construction defect claim and wait a little bit longer to call your favorite law firm or that great lawyer friend of yours.
A new client will be asked two questions when she walks into our Aspen law office door: “who’s on the other side,” and “when did this all happen?” If it happened last week, we will note and docket it and explain the time periods. If it seems that the claim occurred some time ago our litigation team will be sent scurrying to find and triple check the statute of limitations: breach of contract and fraud– 3 years; notice of claims against a governmental agency a matter of weeks; a collection of pitfalls for a contractor to perfect its mechanic’s liens.
Statues of limitations may seem cut and dry, but the complexities of accrual and “tolling”– when did the clock start or stop running — is what your seasoned Colorado trial lawyer should be researching when you leave the office. A conscientious lawyer literally will not sleep until he figures out the time left to sue.
The Hickerson case demonstrates that our legislated laws live side by side with equity. The Court reminded us: “[O]ur case law, since early statehood, recognized the application of equitable remedies to legal claims.” It is thus always prudent for the person who, or entity which, has the claim not sit on her or its rights. Hickerson sums up like this:
Despite that statute of limitations, we held that laches was still available as a defense. In justifying use of laches, we explained that “[w]e cannot … give this statute such a construction as will permit a party in all cases to stand idly by until the limitation of the statute has nearly run, and then claim that, by virtue of the statute, he is excused from the laches.”
Laches: Translated: Don’t Hurry Up and Wait.