Reply to Flagbridge-ADR's Post: Hello. Thank you for your help!

The most recent entry on the Superior Court's online case summary states: "Status: Dismissed for Lack of Prosecution 04/02/2008." "Future Hearings: None."

We've not been able to get ahold of our attorney lately, but we will. The last we heard from our attorney was that the judge would be officially dismissing the case, since all terms of the settlement had been met, in his opinion, and we'd then be able to access the settlement funds which are being held in our attorney's trust account.

If our attorney had been given 20 days to respond to such motion, would one expect to see some indication of that in the case summary? (as opposed to "Future Hearings" None)

One last question: I've been trying to get ahold of the court transcript, but haven't been able to connect with the court reporter. Do you know if it would be possible to find out any important details on this issue (such as with/without prejudice) if we, the plaintiffs, were to go to the court directly and ask to speak to the court's clerk? Or do you know if this information can be obtained over the phone by calling the court?

This information is much appreciated. This was to be the final disposition of our case, which had been going on for over 2 years now at great expense for us.   

I eagerly await any additional help you may be able to provide.

Reply to Flagbridge-ADR's Post: I welcomed your help, but I did not fully understand your responses. Some sentences I did not understand whatsoever. I do not consider myself illiterate, but I got the impression that your answers would be more meaningful to an attorney than a layperson such as myself.

But I appreciate that it must be somewhat difficult for an attorney to speak in layman terms. I mean no disrespect.

I tried contacting the court clerk & court reporter, but the court administrator said the court was dark and everyone was unavailable. I could not get any further info until our attorney finally got back to us.

Since then, we received an email from our attorney assuring us that on 4/2/08, the case was settled with prejudice. He made no mention at all of the dismissal referred to in the online case summary. I gather that dismissal must have been related to a motion brought by defense counsel. It just seems rather odd that to this day, there's nothing in the case summary as to the final disposition of our case, but I guess that's how online case summaries work.

These attorneys have messed up so much along the way, that we have reason to question their every move at this point.

Perhaps you might be able to enlighten me on another question. I will pay extra for your help. If you can, or are willing, please let me know how best to proceed.

My question relates to our attorneys missing the discovery cutoff for destructive testing in our construction defect case. We paid $24K for destructive testing, and later discovered that none of the results were made part of settlement. The estimated cost to repair defects found in destructive testing was $500K.

We have an outstanding balance with our attorneys for approx $180K, and now that our case has been officially dismissed, they're expecting to be paid. We're wondering if we can negotiate anything off their bill in this situation. We're wondering if what they did was malpractice. However, we did agree to settle (because our expert was out of the country and unavailable for settlement discussions, his official report was unavailable, and we would have had to proceed to trial 1 week later.

Anyway, if you could let me know how best to gain some helpful info in this regard (so that we may try to negotiate our attorneys fees if at all possible), that would be fantastic. As I say, I do not mind spending the extra money for some guidance in this regard.

We do not know what to do at this point - what our rights are under the circumstances.   

Sincerely.

Reply to Flagbridge-ADR's Post: One question for clarification: Bar rules state that an attorney does not have to use updated damages (test results which added approximately $500K to the amount of damages sought in the case) if he does not want to? To follow that through to trial: Do Bar rules state that the attorney does not have to include updated test results which added approximately $500K to the amt of damages sought in the case at the Trial as well?

FYI: This destructive testing uncovered the fact that the sheer walls of our bldg were improperly constructed & will most likely not withstand a major earthquake. So of course the cost to repair the sheer walls which had recently been discovered ($100+) were not made part of the settlement.

In consideration of settlement, we had to agree to waive Civil Code 1542 which would enable us to go after the builder and contractors should this bldg cause personal injury or death as a result of sheer walls construction; however we never got 1 cent extra for their repair.

Does this change or affect your response in any way? If we find that the DT was not included because our attys missed the discovery cutoff (as stated by defense counsel before testing began), would that rise to the level of negligence?

Reply to Flagbridge-ADR's Post: It does help. We are so very angry with our attorneys leaving this destructive testing out of settlement (and therefore assuming it would have been precluded from trial as well), especially in light of the FACT that we had been begging our attorneys to perform destructive testing since the very beginning of our case (January of 2007), in several phone conversations and several emails as well.

Right before the destructive testing, defense threated to have results barred on the basis of the discover cutoff, and threated to file a motion in limine to preclude results from the upcoming trial.

BotXXXXX XXXXXne, we could NEVER get our attorneys to understand the importance of this destructive testing, and this is the damage as a result. WE'RE BEGGING for DT, and they're supposed to be the construction defect Litigation experts??