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Q. Why can't you get an Attorney to take your case ?
my daughter's arm had little function to begin with and attorney think it is a low value case + the timeline is very tight. Can't i pay an attorney to take my case?!
I am sorry to hear about your daughter's arm. There is a legal principle applicable to your daughter's case - "The Defendant takes the Plaintiff as he finds him". This means that it does not matter that the plaintiff had a problem to begin with; if the plaintiff did something to worsen the condition, the Defendant is still liable to the Plaintiff.
For example, let us assume that a paraplegic was in an automobile accident and the other driver was at fault. The injuries sustained by the paraplegic resulted in his becoming a quadriplegic. The Defendant cannot say, "Well, you can't hold me liable because he couldn't walk even before the accident, so what's the difference now?" The fact that the other driver's negligence caused the Plainiff's condition to worsen, makes the Defendant liable to the Plaintiff for making his condition worse.
Therefore, if these Attorneys you have spoken to have the idea that your daughter's case is not worth much because she only had little function before the malpractice, they are totally out in left field.
In Answer to your question, "Yes" you can pay an Attorney to represent your daughter in the malpractice case. Just because a majority of personal injury cases are taken on contingent fee, does not mean that you cannot hire an Attorney and pay him to take the case. You should call your State and County Bar Association Lawyer Referral Services, tell them what your situation is, and ask for the names of several Attorneys who have experience in malpractice litigation cases.
I wish you and your daughter, the very best of luck,
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thank you Andrea, but how about the original question of: My surgeon says he will act as an expert witness -but only if I have an attorney - I have to file an opposition to motion for summary judgement (tomorrow) - can I write an affidavit citing what he said?
1. Submitting an Affidavit attesting to something that someone else told you is hearsay and the Court would not consider it;
2. Even if you could submit an Affidavit, it would not be enough to defeat a Motion for Summary Judgment.
The party submitting the Motion for Summary Judgment is telling the Court that the Court should enter judgment in his favor because "there are no genuine issues of material fact". The party is alleging that having a trial would be a waste of the Court's time because there are no issues in dispute that can be tried. Your are supposed to file an Answer in opposition to his Motion for Summary Judgment and you must refute his statement that there are no genuine issues of material fact in dispute by raising issues which are, in fact, in dispute.
The surgeon's reason for saying that he will not testify if you do not have a lawyer is probably because (1) he will take the stand and be cross-examined. There will not be any lawyer on your side to question him and have him testify in your case in chief; and (2) He wants to get paid and it is the Attorney for the Plaintiff that pays the Expert Witness before he takes the witness stand to testify for the Plaintiff,
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