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socrateaser
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Divorce Appeal Legal Malpractice; FloridaQuestion: In a Florida

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Divorce Appeal Legal Malpractice; Florida
Question: In a Florida Divorce Appeal, what legal standards, statutes, abuse of discretion (specific issues) normally get reversed and/or reversed and remanded? I realize that many issues may arise that constitute reversible error and it is impossible to name all.
Therefore, my question is: What are the obvious, specific requirements of the court, the statutes, etc. that, if not followed, would be "clear, obvious, reversible error" and therefore – if they existed, SHOULD have been on the appeal? I want to obtain objective legal advice (see question above). I am filing suit against her for Legal Malpractice.
I hired an Appellate lawyer to handle my divorce appeal. The brief contained ONE issue only: Striking Pleadings Too Severe of a Sanction. ). The facts as to exactly what happened prior to the trial leading to stricken pleadings were based upon absolute false allegations of proffered lies without any evidence whatsoever. “Water under bridge” after appeal court issued a “Per Curiam; Affirmed; Without Opinion”.
Limiting her brief to the ONE issue and failure to preserve errors of many; my losses are beyond extensive. My appellate lawyer did not insomuch as mention and/or raise any of the other major errors and mistakes that should have been on the appeal because failing to raise them has resulted in my involuntary waiver to them.

Thank you!
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
Hello,

I believe you may be making your question impossible to answer, by referring to "reversible error."

Reversible error can occur on any issue, and the number of possible issues that can be brought to an appellate court is infinite.

The better term, I believe, is "prejudicial error." "We have repeatedly held in numerous decisions that when an appeal is taken from a decision, order, judgment or decree entered by the trial court, the burden rests squarely upon appellant to clearly demonstrate by the record that prejudicial error was committed. Included in this burden is the clear responsibility devolving upon appellant's counsel to bring to this court a trial record containing every phase of the trial proceedings which must necessarily be considered in order that it may be determined whether prejudicial error was actually committed. When the question presented for our consideration must necessarily turn upon the sufficiency or the insufficiency of the evidence to support the trial court's ruling, it becomes indispensable that such evidence be included in the record on appeal." ROBINSON v. FOLAND, 124 So.2d 512 (1960).

Examples of per se reversable prejudicial error:

  • Denial of right to fair hearing (“structural error”)
  • Right to jury trial
  • Judicial bias
  • Right to testify/present evidence
  • Right to cross-examine witnesses
  • Erroneous dismissal
  • Representation by counsel with conflict of interest
  • Trial court's wrongful denial of accommodation for disabled person or failure to rule on accommodation request
  • Certain failures to apply “mandatory” statute
  • Judgment not supported by substantial evidence
  • Punitive damages awarded without financial condition evidence
  • Material departure from appellate court directions
  • Federal constitutional error
  • Failure to provide notice of proceedings
  • Lack of subject matter jurisdiction
  • Lack of personal jurisdiction over defendant
  • Jury misconduct

Hope this helps.

Customer: replied 1 year ago.

Hi. Thank you for responding. I do have additional followup on questions and your knowledge base leads me to believe that you may have answer. Specifically to my case:


 


1) The judge allowed my lawyer to withdraw from my case two days before trial was scheduled to begin - Dec. 22, 2008 but DENIED continuance to allow for me to hire competent counsel. I was forced to attend trial without representation and I ended up having a literal psychological breakdown due to my incapacity to understand even how to begin to represent myself in court.


 


2) All proffered statements without any substantiated findings of facts as to the financials. In fact, the actual final judgment stated the "the husband testified that the wife earns 100k" because there was no evidence.


 


3) At the time of the trial, I was disabled, unemployed, unemployable. This finding of fact entirely contradicts the 100k income lie. My proof comes from another Court - Office of Disability Determinations - of which - at the time of the trial I made it clear that I had a "pending appeal" for disability benefits; that I had no income, no job, and no ability to work due to full disability. At the time, I was under the care of my doctor who was outraged that the judge chose to proceed with trial and he issued correspondence to the court - directly - warning them that if they forced me to endure a trial without a guardian and/or lawyer, I would likely end up hospitalized - which I did. O/C objected to the letter that I brought with me from my doctor (which stated exactly the reason that I needed a continuance - medically - and it also stated that he wanted to have an opportunity to testify in court on my behalf.


 


4) I was denied discovery - entirely


 


5) Former Husband claimed that he was "unemployed" due to "hardship" in his company where they had to "lay him off". I knew this to be a lie as he went on to work at this company for 1 1/2 years after trial, got a promotion and recently MARRIED the CEO of the company that he claimed fired him.


 


6) Former husband lied about every aspect of our finances


 


7) Former husband wiretapped my 1st attorneys database of client/attorney data - not only mine - but all of my former attorneys office staff of attorneys and their clients. My ex-husband sign a sworn statement and sent in his "stolen documents" to the Florida Bar in a bar complaint against my former attorney - at the time - not aware that he committed a federal crime.


 


8) My former attorney informed former husband that he was going to have charges against him (felon) for wiretapping. Former husband offered to withdraw bar complaint, apologize publicly and to pay 25k to my former attorney if he entered into a confidentiality agreement to resolve the matter out of court of which they executed. I did not become aware of the details of what was stolen but later learned that it included wiretapping my own phone and recording conversations, planted cameras in my home, my mail, email were hijacked as well. All of which is on file with the bar. This matter has never been tried on its merits because the 1st judge set it for hearing and then recused.


 


9) Fla. Stat. 61., clearly indicates that "all factors necessary to provide equity to the parties are to be considered in awarding or denying alimony" - and "health" of the parties being one of the top 2. She ignored by testimony of my disability which was later awarded retroactive onset date October 1, 2008 before trial.


 


10) Two courts of competent jurisdiction. Family court imputes 100k without ANY factual findings; Disability State Court concludes that I have been unemployed since 2005 and unemployable since Oct. 2008. DIRECT CONFLICTING ORDERS.


 


11) My appellate lawyer knew about everything and raised nothing.


 


12) I filed timely motions to vacate final judgment; no hearing all denied.


 


13) O/C filed a motion to clarify final judgment. Denied. No hearing. However, 5 days after F.J. was issued, the judge cut/pasted O/C's "verbatim language" into an amended F.J., mailed it to the wrong address, and changed the F.J. substantially (not clerically) by adding a statement that O/C provided word for word, "However, the former wife is not entitled to future alimony since her pleadings were stricken". Again, the F.J. (original) included, "the former wife may need additional funds in the future but husband is unemployed". This statement remained in the Amended (secret) F.J. with the alimony provision added as part of the amendments to the judgment.


 


13) The Amended f.j. was done nunc pro tunc without my knowledge. So, my motion to vacate challenged her f.j. order (not the amended f.j. order) and she ruled on it by denying my motion. Question: How can a judge issue a ruling on a non-existing judgment? I challenged the ORIGINAL judgment that was no longer standing but replaced with the amended F.J. Voidable? I mean, I need justice and I need the law to help me.


 


14) American Disabilities Act - "A continuance to accommodate a disability is authorized as a means to accommodate if it does not fundamentally alter court administration - which it would not have - and it also would not have prejudiced the Petitioner. I was denied every right to due process.


 


15) appellate lawyer refused to file supplemental filings to the appeal despite my urging her to do - especially the subsequent final order on disability - F.R.A.P. has a rule that, in order to conduct a meaningful appeal, they MUST be furnished with ALL RELEVANT facts - The disability award was rendered after a strict, detailed investigation and discovery was completed on my entire life including income - clearly proving fraud on the court - the denied hearing on my motion for fraud has to be also an ABUSE of some law.


 


16) My constitutional rights were trampled on. I do not sleep at night because I remain obsessed with justice. I cannot move on despite numerous attempts. My entire life savings was stolen by the court and given to my fraudulent ex husband to put into his hidden asset accounts under Delaware companies that mask his ownership (of which I did find through a private investigator).


 


17) So much more. 6 more sua sponte recusals - none on motion - all of them on their own decision after being made aware of ADA protections violated. All I did was ask for equity and access to the courts.


 


18) Broward County 17th Circuit is corrupt (well-known). It is my belief that the judge was paid off by my wealthy ex-husband and it was a sizeable payoff. The transcripts are very telling of a plot against me. Much of the hearing was ex parte due to my misunderstanding of when the "lunch break" ended.


 


19) I am sure that prejudicial, appeal-able issues are many because I cannot stop educating myself on case law in my never-ending quest for justice. Meanwhile, I want my appellate lawyer held accountable for negligence, breach of duty, and to restore me financially. She was hired and paid to do her job. She represented her expertise and specialized field in "Appellate Practice" and Family Law Trial Appeals.


 


I understand that this additional information is lengthy. I spent in excess of 131,000 in attorney fees to date and I've been depleted of funds. I need help to get justice. Right now, specific to this question session, I need legal quantification of LEGAL MALPRACTICE valid claim statement and I've provided hopefully enough facts to obtain an answer as to the likelihood of prevailing in this claim. She carries excellent malpractice insurance and I need to get a contingency lawyer who can prevail on this claim against her.


 


If my facts are as I say, do I have a valid LM claim and what are the specific negligent areas of her lame appeal? Thank you.


 


 


 


 

Expert:  socrateaser replied 1 year ago.
Your facts suggest that the real matter on appeal should have been judicial bias/prejudice, which caused a denial of due process at practically every step of the proceedings. Were I representing you at trial or on appeal, I would have asked the judge to disqualify him/herself for cause, not for ADA-related issues. See e.g., PHILIP MORRIS USA, INC. v. BROWN, 96 So.3d 468 (2012).

Also, I would have appealed the final judgment directly for whatever abuse of discretion I could find. See, e.g., KRONER v. SINGER ASSET FINANCE CO., L.L.C, 814 So.2d 454 (2001).

The problem for me, when I review a question like yours, is that I am not reviewing the court record, so the facts, no matter how objectively you believe they are presented, do not represent your opponents' arguments or views. So, while I can find malpractice in everything that you describe, that doesn't mean that if I were sitting as a judge considering the matters, that I would find the same malpractice -- or judicial improprieties.

Concerning the wiretap issue, that is a matter for the county prosecutor. No settlement between parties can overcome the prosecutor's authority to charge a crime, if he/she chooses to do so. And, no action by a private citizen can force the prosecutor to charge a crime. But, if you didn't report the crime, then you would never know if it would have been prosecuted.

The law is not clear as to whether or not you could sue on a civil action for the wiretap of your attorney (FL. Stat. 934.10). However, given that you have a right to confidential communications with your lawyer, it seems to me that a claim could be made that you have a property interest in your attorney's work product and communications, and so the interception of attorney communications is actually an interception of your communications. This may have been a colorable legal action, which could have put your ex on his heels. What's more, it's not clear to me that your attorney had the right to settle the matter independent of you, because the attorney was effectively engaged in a legal action in which you had a material interest. So, the attorney may have engaged in a conflict of interest by accepting a settlement without your consent.

All of this is difficult stuff. I realize that you want to try to "do-it-yourself" all of this, and that you are coming to this website in the hopes of being able to do so without further reliance on legal representation. But, from where I'm sitting, this is a very difficult case, even for a competent lawyer (n.b., sometimes I wonder if there are any competent attorneys -- but, that's a different issue). And, while I like to think that I'm a pretty good legal analyst, the most I can do is try to show some of the ways to approach the issues. After that, it's all up to you.

Hope this helps.
Customer: replied 1 year ago.

Thank you again. I printed your feedback to read more closely to understand and I just wanted to respond on one point you made - which was to ask the Judge to recuse. I did exactly that at trial and she would not allow me to prepare the motion and instead ignored me and proceeded with the trial. I understand that you're hearing one side of this disaster of a case. I can tell you that the details that I provided to you are genuinely fact - as implausible as it is.


 


So - on the recuse matter - it should have been raised on appeal (assuming my accuracy as to these facts)?

Expert:  socrateaser replied 1 year ago.
So - on the recuse matter - it should have been raised on appeal (assuming my accuracy as to these facts)?

A: Yes. As I mentioned, your statement of allegations suggests a continuous demonstration of judicial bias. Yet you did have numerous judges back away from the case. I'm trying to be objective, because that's the only thing that gives you a clue of where you may stand. The whole thing smells fishy -- yet, I'm not a big conspiracy theorist -- so, it's hard for me to believe that multiple judges were biased against you, or that you ended up with a judge that was prejudiced. But, that's the way your facts play out -- so, if I were the appellate lawyer, I would have to try to demonstrate that you received something considerably less than due process.

The question is whether or not the failure to do this amounts to malpractice -- or, just a decision to limit the appeal to the most likely issues for reversal. I have to assume that your attorney believed that her appeal was based on the strongest issues -- but, maybe not -- I would have to review the entire case file. Regrettably, if you were calling me in to actually pursue the appeal, I would probably have charged you $10,000 to just look at the file, given the amount of action in the case.

So, I can understand how an appellate lawyer might be reluctant to look you in the eye and say, "Open your wallet, if you want any shot at winning."

Hope this helps.
Customer: replied 1 year ago.



I contacted JUSTANSWER customer service and requested additional funds be added specifically – in my interest to compensate for the extensive questions posed through responses and they advised that I could do so as a “bonus” deposit after the dialog is closed and rated.


I wanted you to know that I intend on adding funds using this procedure. Beginning with the end in mind and through my providing pertinent, specifics on my case, I would just like to obtain a specific summary as to the issues (in my case) that would constitute “LEGAL MALPRACTICE” – not extensive in detail and content – just line-items of the matters that should and could have been raised and thus preserved. I am fully aware of the fact that your sumXXXXX XXXXXst (if you choose to provide me with it) is all based upon the assumption that I provided accuracy in the events in question. With that said, the list will surely help me in enticing a Legal Malpractice lawyer into taking my case (hopefully). So - Hang with me, ok?


Considering my issues presented prior to and including this latest information of specific detail, what are the issues that pass the “test” of a valid claim of be Legal Malpractice in your opinion (again – just a list.


Example: failure to raise and preserve: 1); 2); 3); and so on.


THE JUDGES


All of the judges that recused (sua sponte and not on motion) did so strictly due to their own lack of knowledge due to the relatively new ADA protection laws for which they are bound to for disabled litigants.


WAS THERE A DUTY TO SUPPLEMENT RECORD ON APPEAL


My trial judge (who issued the FJ) filed her Order to Recuse, sua sponte, disqualifying herself from the case 6 weeks after issuing F.J.and during pendency of the appeal. Should my appellate lawyer have noticed the appellate court at that time? By the way, my INITIAL brief was not even filed yet when this happened.


On that topic, I informed my appellate of the Judge that issued the Order on appeal of her Recuse Order. (I had researched and found case law that - in family law cases on appeal, the appellate court needs “all relevant factors” and newly-discovered matters necessary for their meaningful review (particularly in family cases) and of which may impact their eventual ruling; and to do so prior to their issuing their Opinion.


THE PENDING APPEAL IN THE RELATED (DISABILITY) CASE


As I've mentioned prior, I testified in court and on official record that I had a pending claim in disability court as to my unemployment and disability (and thus preserved the issue that appellate counsel could have raised?)


And; since the disability evidence substantiating my disability was unavailable at the time of the trial, did it constitute newly-discovered relevant evidence for the appeal – withholding “all pertinent” facts?


Should my appellate lawyer have supplemented the appeal when a COURT ORDER from the disability court – who had since issued their Final Order determining my full disability and determining that my unemployable status date of onset was months prior to the trial?


The disability order was based upon factual undisputed findings, substantiated by proof; and in direct conflict with the divorce judgment that imputed non-existing income based solely on false testimony of my ex-husband – without an ounce of factual findings (alarmingly stated in the F.J. itself…”The husband testified that the wife was earning…”).


CONFLICTING ORDERS OF TWO COURTS OF COMPETENT JURISDICTION


DIVORCE ORDER:


Required (statute 61) factual findings were ignored by trial judge


DISABILITY ORDER


Substantive factual findings and evidence leading to their fully favorable ruling on my disability


Both of these courts fall within the appellate jurisdiction of the same district court (4th DCA) if challenged on appeal


**(I was ambushed and unrepresented and told the Judge exactly this - O/C Lied; Petitioner Lied; Their Proffered Statements And Testimony (By Petitioner) At Trial.


My appellate lawyer refused to supplement the record on appeal and continued to fail in protecting the preservation of these issues by refusing to notice the appellate court in both her INITIAL APPEAL as well as during the PENDENCY of the appeal.


The unconstitutional denial of the trial judge who ignored my physicians’ notice via correspondence offered at the trial. In some case law – in Florida –“..An issue as to legal capacity need only be alleged…” to justify a testamentary finding of fact of incapacity to be sued…” (I obviously had no prior opportunity since I was represented up until 2 days before trial. In his letter addressed directly to the trial court, my doctor urged the court continue trial so that he could testify to these facts and to ensure that I had representation to avoid the risks of my conditions worsening if forced to appear pro se.


I was absolutely not able to competently defend myself for numerous reasons including inability to obtain new counsel - but my legal capacity was not adjudicated and, had I known, I would have certainly requested a probate evaluation that – in consideration of the actual content that was given to the disability court – specific to my incapacity (again, technically non-adjudicated), I would have certain petitioned the probate court for a determination of my legal incapacity because I was not capable – medically during that abusive trial.


UNIFORM NATIONAL CONSTITUIONAL LAW


See Case In re MARRIAGE OF JAMES M. AND CHRISTINE J. C. James M. C, Respondent, v. Christine J. C, Appellant.; No. G037159.; Court of Appeal, Fourth District; Division 3; January 15, 2008.; [70 Cal.Rptr.3d 716]; 70 Cal.Rptr.3d 715; 158 Cal.App.4th 1261;


This case was in California…BUT – CA Rule 1.100 is a copy, verbatim, of the U.S. Code under the ADA that specifies the requirement to grant a reasonable accommodation (based always on the individual circumstances and without specific limits of the court as to the nature of the accommodation if appropriate to specific matter at hand).


Without ambiguity – the laws under U.S. CODE under ADA protected individuals legally govern every state including divorce trial judges; and they are mandated under the law to accommodate disabled litigants WHEN the specifics fall within one of the three facts as identified in the law under ADA U.S. Code.


In re MARRIAGE OF JAMES M. AND CHRISTINE J.C. ABOVE;


“…the trial court denied her request under the Americans with Disabilities Act of 1990, 42 United States Code section 12101 et seq. (ADA) and California Rules of Court, rule 1.100 to continue the trial…”, and;


“…It is undisputed Christine suffers from bipolar disorder, a potentially incapacitating mental illness, and, on her psychiatrist's recommendation…” In the case above, it states that, “…the Courts must show at least one of three specifically identified grounds to DENY an accommodation. None of those grounds existed when Christine's request was denied. We therefore reverse and remand…”


Minimal case law exists because (as in all NEW law, case law evolves over time to accumulate - logically)... Even under Fla.R.Jud.Admin 2.540.; “…a request for accommodation may be denied ONLY when the court determines that the requested accommodation would create an undue financial or administrative burden on the court or would fundamentally alter the nature of the service, program, or activity…” And, in some Florida case law it states that the incapacity of a litigant need only be “alleged” for a request for an accommodation to be review and considered (same is identified under the U.S. Code)


CONTRADICTING COURT ORDERS


Final Order that clearly specified its retroactive application, proving that my testimony of disability was factual; and substantiated evidence proving that Petitioner’s testimony was alleged to be false and fraud on the trial court (he knew of my disability since diagnosed in 2004 leading to my medical decomposition that ultimately caused my incapacity to sustain employment and documented (extensive discovery) proving that I in fact had NO income to impute. Should this have been raised on appeal?


My ADA accommodation request was REASONABLE. A request for Continuance was in fact a valid reason under the law and my appellate lawyer was well aware of these matters even if only “alleged” according to the mandate of congress under ADA law. Should this have been raised on appeal?


Should my appellate lawyer have supplemented the record on appeal by raising all of these matters to ensure that the appellate court had ALL FACTORS NECESSARY in their consideration prior to their ruling – particularly those denying my due process under CONSTITUTIONAL law?


IN RESPONSE TO YOUR SUGGESTION THAT I FILE A MOTION TO RECUSE THE TRIAL JUDGE: I DID REQUEST THE TRIAL JUDGE ISSUE HER RECUSE AND SHE IGNORED IT


Should my appellate lawyer have supplemented the appeal to raise the fact that the trial court who issued the F.J. disqualified herself six weeks after F.J. and during pending appeal on her own ORDER on appeal before it rendered its opinion?


ADA law under U.S. Code clear in its "REASONABLE COURT ADA ACCOMMODATIONS", all of the case law cited that led to reversal (in Christine C., the higher court on appeal found that the Judge erred for NOT GRANTED HER CONTINUANCE since the circumstances called for a CONTINUANCE as a “reasonable accommodation” under the specific case circumstances.


This law is relatively new and CERTAINLY foreign to judges to choose NOT to continue their own education on new law, and when I presented the ADA Laws and they were called to point after they, too, engaged in ADA violations, they chose to just recuse themselves in order to avoid their own liability of potentially being sued both personally and in their legal capacity (no immunity for judges if they are in violation of ADA law)

Expert:  socrateaser replied 1 year ago.
Should my appellate lawyer have noticed the appellate court at that time?

A: The term, "should," in a question, carries with it the requirement of a value judgment on my part. I'm not in a position to determine what your former attorney should or should not have done. If it were me, I (hopefully) would have raised the issue of judicial prejudice, based upon the substance of the various rulings made in the case, and if ADA reasonable accommodations were at issue, and I believed that my client did not receive those reasonable accommodations, then I would ask the appellate court to set aside the trial court's judgment on grounds of a failure of "due process," ("prejudicial error") which caused my client to be unable to adequately present her case to the court.

So, it wouldn't have been necessary to raise the issue after the appeal was filed, because the issue would have already been appealed directly from the final judgment.

Assuming that the issue of ADA accommodations was known about before final judgment, and not provided to you, then assuming that the issue was visible from the case file, then failing to raise the issue, may be malpractice.

The counterargument is that since the judges apparently didn't understand the law, that your trial and appellate attorneys also could not be held to a standard of care in which apparently no one in the profession recognizes their legal obligations.

I don't know that this is a reasonable argument, but it's what your appellate attorney is likely to argue, assuming that you show that the ADA issue was visible in the court record, prior to filing the appeal.

Hope this helps.
Customer: replied 1 year ago.



Hi again.


 


...And in reference to my question above, is it possible to help in providing a final summary of the line item points as to present a "valid claim of malpractice as in the example that I mentioned above?


 


Using well-established law on what constitutes a valid LM claim, coupled with the specific areas overall that occurred in my case, can you assist me in listing (needn't give anymore lenghy dialog-just high-level bullet points as to what I would include in my LM argument specific to my case and using what we've discussed to this point? I gave an example above:


 


 


Example: failure to raise and preserve: 1); 2); 3); and so on.

Expert:  socrateaser replied 1 year ago.

The way that most civil attorneys draft a complaint is to review the civil jury instructions and extract the necessary elements to making out the require cause of action. See this link.

Alternatively, you can visit a law library and review:

Florida Elements of an Action

Florida Pleadings and Practice Forms

Concerning the underlying factual claims: (1) failure to raise judicial prejudice on appeal; (2) failure to raise violation of the ADA on appeal (though this is also an underlying reason for the judicial prejudice -- so, it may not really be a separate cause of action).

Also, there may be a cause of action for violation of an deceptive business/trade practice. I find no specifically applicable case law, but it's at least colorable that an attorney who claims to be an expert in appellate law, misleads the client, if the attorney's performance is below the standard of care. See, e.g., D.L.A. v. FATHER & SON MOVING & STORAGE, 643 So.2d 22, 26 (1994) (the words "deceptive practices" set forth a legal standard and they must get their final meaning from judicial construction...proscriptions against unfair and deceptive acts are flexible and are to be defined with flexibility by the myriad of cases from the field of business).

Hope this helps.

Customer: replied 1 year ago.
Relist: Incomplete answer.
My request for info was specific in that the answers given but he hasn't been able to provide answer to specific question. Please repost my question. Also, in his list of areas of knowledge, I noticed that he doesn't practice legal malpractice in divorce cases so I want to farm out this question to an attorney who actually has handled legal malpractice of appellate lawyers who handle divorce judgments on appeal
Expert:  socrateaser replied 1 year ago.
Perhaps you are unaware that when you relist your question you are depriving me of all compensation for my prior efforts on your behalf. All after your previous request for me to remain in the conversation with you ("Hang with me, OK?"), accompanied by a promise of payment plus "additional funds" in the form of a bonus.

I'm sure that your actions are based upon a misunderstanding of the system. Won't you please honor your original promise, by providing me with a positive rating for my efforts -- as I have done by answering your questions in good faith?

Thanks in advance for your kind attention.
Customer: replied 1 year ago.

I understand and I wish to show good faith. My issue is concerning my question to you as to "specific" matters that were negligently "waived" by my appellate lawyer. I am not requesting that you provide a lengthy explanation at all. We've discussed my case with detail (of course, not everything in my case as it would take all year). However, can you itemize the specific issues that she failed to raise on appeal and, had she raised them, my rights to argue them on appeal would not have been waived. Although you have given insight, I am still seeking just a "quick list" of specific, critical waived issues (either errors or discretion abuse) that were included in trial and, therefore, subject to proper raising on appeal. Is that something that you can assist me with? My initial question was objective-possible issues that should always be raised on appeal because they are the law of the Fla. Statute (61), the Fla. Fam. R. Procedure and any other legal certainties of which should have been raised on appeal.


 


 


Please review our dialogs and you may better understand the above. You cited cases-can you cite cases where Legal Malpractice in Divorce Appeals of which Plaintiff prevails? I can close out the question - just help me get the specifics now that you have details as to at least some of my case and trial, and, if you want additional insight as to the issues raised on trial (for example-on the record at trial, I told the judge, "but, your honor, I have not presented my evidence yet". (She was done with the trial in her view). Her answer to me was, "I will rule on what I have." This was predicated on my inability to self-defend this horrible life-altering trial as a pro se litigant (forced).

Expert:  socrateaser replied 1 year ago.

I understand and I wish to show good faith. My issue is concerning my question to you as to "specific" matters that were negligently "waived" by my appellate lawyer.I am not requesting that you provide a lengthy explanation at all. We've discussed my case with detail (of course, not everything in my case as it would take all year). However, can you itemize the specific issues that she failed to raise on appeal and, had she raised them, my rights to argue them on appeal would not have been waived.

A:

 

(1) failure to raise judicial prejudice on appeal; (waived)

(2) failure to raise violation of the ADA on appeal; (waived)

(3) deceptive/unfair trade practice; (separate cause of action against appeals lawyer)

(4) Intentional misrepresentation (fraud); (separate cause of action against appeals lawyer -- but only if the lawyer made representations about her services or credentials which were false and which induced you to hire the lawyer)

 

Although you have given insight, I am still seeking just a "quick list" of specific, critical waived issues (either errors or discretion abuse) that were included in trial and, therefore, subject to proper raising on appeal. Is that something that you can assist me with?

 

A: The other possible claims (if any) which may have been waived on appeal (and which I identified generally in my first answer to you) are beyond my capacity to identify, because they would require me to review your entire case file and look for things which the appellate lawyer could have appealed but did not.

My initial question was objective-possible issues that should always be raised on appeal because they are the law of the Fla. Statute (61), the Fla. Fam. R. Procedure and any other legal certainties of which should have been raised on appeal.

A: I gave you every possibility in my first answer. Then you filled in the blanks about portions of your case, and I narrowed my thinking to what seems to be your primary focus, i.e., you were subjected to repeated judicial prejudices -- a portion of which may have been due to your requiring ADA reasonable accommodations, which could have been used to reverse the family court's judgment on appeal.

 

Please review our dialogs and you may better understand the above. You cited cases-can you cite cases where Legal Malpractice in Divorce Appeals of which Plaintiff prevails?

A: After conducting a thorough Westlaw database search, I find no appellate cases where an appeals lawyer was sued for the failure to raise issues on appeal. The search returned 77 different cases, but none are related to your issue. The majority relate to the waiver of a claim based upon the statute of limitations, which has nothing to do with your case. The only case that is remotely connected to your potential claim is: Hampton v. Payne, 600 So.2d 1144 (1992)(Police officer brought legal malpractice action based on alleged failure to timely appeal administrative determinations terminating her employment and denying application for disability.)

I can close out the question - just help me get the specifics now that you have details as to at least some of my case and trial, and, if you want additional insight as to the issues raised on trial (for example-on the record at trial, I told the judge, "but, your honor, I have not presented my evidence yet". (She was done with the trial in her view). Her answer to me was, "I will rule on what I have." This was predicated on my inability to self-defend this horrible life-altering trial as a pro se litigant (forced).

A: The failure to permit you to present your evidence is pure judicial prejudice, which would cause a failure of due process and which would mandate set aside of judgment and the setting of a new trial. It would be inexcusable to fail to appeal this issue. See STEWART AGENCY, INC. v. LESUEUR, 785 So.2d 1242 (2001), citing LoBue v. Travelers Ins. Co.,388 So.2d 1349, 1351 (Fla. 4th DCA 1980) ("The right to present evidence and call witnesses is perhaps the most important due process right of a party litigant.").

If you can show that you were denied the opportunity to present evidence, and that your appellate lawyer knew of this and yet failed to appeal, that would seem to me to satisfy a claim of malpractice.

Hope this helps.

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