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Lucy, Esq.
Lucy, Esq., Attorney
Category: Business Law
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Experience:  Attorney
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FOR LUCY ONLY Malpractice question I am trying to get

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Malpractice question

I am trying to get a lawyer on contingency fees to see if I have a good cause for malpractice, but as the case will got into the appeal, I already talked with one lawyer and he told me that the malpractice case cannot be opened until the appeal is resolved ?

To win a malpractice case, you have a trial within a trial. That means that you have to show not only that the attorney made mistakes, but that those mistakes caused you to suffer a loss. If the appeals court reverses the decision and finds in your favor, you may not have suffered a loss. So, if you did file a malpractice case before the appeal was settled, the attorney might file a motion to stay until it is known whether you prevailed on appeal.

The statute of limitations starts to run when the appeal is resolved. Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998). There is an exception if the attorney admits his mistake before the appeal. There's also some case law that a person cannot sue for malpractice if he chooses not to pursue an appeal that he most likely would have won. However, I'm not seeing anything that specifically says that you cannot sue for malpractice during an appeal, but those are some reasons that an attorney might suggest that you wait.
Customer: replied 3 years ago.

When you say admits the mistake, does it include an email where he says that he's sorry to communicate the court file so late when it's 4 business days before the trial hearing and has 700 pages ? ANd he has waited 2 months after his motion to withdraw to communicate ?

It's very fact specific. The judge would look at all of the facts of the situation to determine whether the client knew, or reasonably should have known that the attorney made an error that caused damage to the client. There is an argument that letters or emails admitting to mistakes would be sufficient to put the client on notice.

In Florida, the statute of limitations is two years. Fl. Stat., Section 95.11.
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