Personal Injury Law
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(1) I would like to know if the attorney I retained could have or should have done due diligence in taking photographs and interviewing witnesses from the beginning ....even in the absence of a filed lawsuit? Is the gathering of evidence prohibited by the fact of not having yet filed a lawsuit?
(2) If the statute of limitations has run on negligence on the part of the insured because my attorney did not file a lawsuit in a timely fashion before the statute ran out....and I am now barred, not only because the statute ran out but also because they never gathered the evidence necessary to support negligence when they could have ....do I have a case for malpractice against these attorneys?
Yes they would have allowed him on site because I own a condo in the bldg and I would have escorted the attorneys or their investigators as my guests to the exact spot of the accident to take photos. One does not need any special entrance card to enter the garage....it is an open space. Furthermore interviewing my witness asap was paramount to obtaining the necessary information as close to the incident as possible for the purpose of preservation of the facts.....as now three years have elapsed and the witness may not remember what is necessary to support my case.
So my question still is.....are my attorneys barred from gathering evidence and doing discovery....such as photographing the scene, such as obtaining a signed affidavit from my witness, such as submitting interrogatories to the insured even if a lawsuit has not yet been officially filed?
I just learned that the statute of limitations in Florida is as follows:
FSA Section 95.11(3)(a) provides that the statute of limitations period for filing a civil lawsuit in cases of negligence is four years.
My only conclusion then is that they have seriously compromised my case against the insured for liability by not having preserved the necessary evidence in a timely fashion at the time of the accident.....that would have most certainly supported the monetary damage claims - they made for 325K.
Even now if they file a lawsuit within the statute of limitations for negligence it may go nowhere because they did not preserve the necessary evidence to support the liability claim...and any photos taken now would be of no use.
I am not sure how to proceed at this point. I will not settle for 3K after they themselves put in a claim for 325K. They must have had some good reason for putting in for this amount.....as it indicates that that number must reflects their opinion of the actual damages. If that were the case then they most certainly should have done the proper diligence from the beginning to preserve my case.
Not sure whether to insist on their filing suit now knowing they have nothing or whether or not I should seek malpractice attorneys right away to remedy. Please advise on what strategy you believe is in my best interests going forward. Thanks so much...as the negligence on the part of my attorneys now seems much worse than the negligence of the condo in leaving construction debris in a walkway.
So let me get this straight.....since the statute of limitations has not expired I would not have a suit against my attorneys for malpractice until I could show that they did not file within the statute...so I would have to wait another year and see if they failed to file.
If the filed now as you state the case would be dismissed ....I assume for lack of evidence of liability. So I guess I should insist that they file the suit because once it is filed and dismissed I would in fact have a case against them for malpractice as it would be clear that they did not do diligence and collect any evidence to support the damage claims that would have offered proper leverage in a law suit or at least to force a settlement in the absence of a lawsuit.
I guess my question is....can I go after them now for malpractice based upon their lack of diligence...or would I be better off waiting for the case to be filed and dismissed for want of evidence to secure a better position. I doubt they would allow the statute to expire knowing that they already screwed up....but I am not sure what they have in mind. Right now they believe they can hoodwink me into accepting 3K. Well they can whistle Dixie on that one!
If they file suit and I lose my claims as result of their having zero evidence of liability...such as they might have had if they had taken photos in a timely fashion, if they had interviewed my witness, if they had obtained copies of the construction contract which might have stated the obligation for cleaning up the garage etc.......so if I lose based upon their lack of diligence or lack of evidence and if I end up collecting nothing.....can their negligence which might then become apparent by virtue of what is exposed in the law suit be used in a malpractice suit against them?
I know you said you thought I had ample evidence but they are claiming that the pebble I fell on could have blown into the garage from outside and would not be the fault of the association. Had they taken photos of the debris in the pathway it would have been clear that the pebble did not blow in from the outside and that it was part of the construction debris lying in the pathway. This excuse on their part is convenient as it lets them off the hook in terms of not having taken photos when they should have.
When would the statute of limitations begin on this for malpractice....would it be from the date my claims might be denied in a lawsuit they filed? Or would it be from the date that they possibly refuse to file a law suit? I believe they will refuse to file a lawsuit on my behalf....just wondering if they have that option. I always thought it was up to me if I refuse the settlement offer as unreasonable.....or can they resign as my attorneys without my consent?
not a problem....and thanks so much for your assistance. Jane
Just curious about something......In Texas the Statute of Limitations on Legal Malpractice is two years. I had retained an attorney who filed suit on my behalf against another attorney in Texas who was negligent and did not file a claim on my behalf in a timely manner and the statute of limitations ran and I lost the claim. The attorney was clearly negligent but since the two year statute had expired on malpractice my attorney filed under a four year statute for breach of contract...in the attorney not performing her fiduciary duties to her client. I was told that malpractice is in fact negligence....but can a breach in fiduciary support a breach of contract claim....or could the case be dismissed because it could be argued that failing to file my claim under the statute of limitations would be considered negligence rather than a breach of contract?
Back to my previous question.....concerning negligence or legal malpractice upon my attorneys in Florida:
You previously responded with the following:
If they fail to meet their professional duty and as a result you lose your case then, yes, you could use that for the basis of a malpractice claim.They can withdraw at any time before trial.they do not need your consent but you can object to the court if your claim would be irreparably harmed by their resigning.95.11(4)(a) Fla. Stat. (2002) states that a legal malpractice action must be brought within two years “from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.”The seminal case on when the statute of limitations runs in a legal malpractice action is the Florida Supreme Court case of Silverstrone v. Edell, 721 So. 2d 1173 (Fla. 1998). In that case at 1175, the Florida Supreme Court held:“[W[hen a malpractice action is predicated on errors or omissions committed in the course of litigation, and that litigation proceeds to judgment, the statute of limitations does not commence to run until the litigation is concluded by final judgment. To be specific, we hold that the statute of limitations does not commence to run until the final judgment becomes final.To be liable for malpractice arising out of litigation, the attorney must be the proximate cause of the adverse outcome of the underlying action which results in damages to the client. Since redressable harm is not establisheduntil final judgment is rendered, a malpractice claim is hypothetical and damages are speculative until the underlying action is concluded with an adverse outcome to the client.Today I received notice from my personal injury attorneys that after three years on this case they are resigning...and they are refusing to go to trial. They took this case three years ago and I am assuming never did any due diligence in gathering evidence at the scene of the accident that would have supported liability upon the insured. If they go to trial they would have nothing.....I would lose....and I would definitely have a malpractice claim for their negligence in preserving the necessary evidence to support liability. Originally they asked the insured for 325K then reduced it to 3K....and when I refused that offer they resigned. I now have a one year on the statute of limitations, have to find another attorney to take this case....they have clearly compromised me in a serious way.
I would think that if they believed there is or was no case here they would not have signed on. They took three years to figure it out....and that is unacceptable.
Question: If in fact they neglected to do any due diligence or discovery at the time of my accident to support liability upon the insured and if in fact they submitted a claim for 325K then wanted me to accept 3K...it appears that they really had nothing to support their 325K demand ...and if so I should have been informed sooner.
Do I have any claims against these attorneys for negligence, malpractice, breach of contract or fiduciary or anything else? Should I not be able to obtain counsel within the one year left on the statute and should there be no evidence of a rejection of my claims resulting from their lack of due diligence .....are there any claims against these attorneys for wrong doing? What are my options?
When would the statute of limitations begin against the attorneys for either malpractice or negligence (are they different claims) and are they both four years? Would it be from today, the day they resigned? or from the date I receive my legal file (that I have requested) where I anticipate that it will be apparent that they did not do due diligence in collecting evidence of liability at the scene of the accident when it occurred, that would have supported their damage claim of 325K?
I am making the assumption that they did not choose to file suit because they realized that they had no evidence that the debris I fell on was due to left over construction materials. They claim they cannot prove that the debris was not caused by wind and that it flew in from the outside as opposed to being part of left over construction. Frankly whether it flew in from outside or was due to construction does not seem of consequence....the insured has the responsibility of keeping walkways free of debris period.
In any case what is clear is that either I have a case against the insured that a new attorney may be able to succeed at ....and if not I may have a case against the attorneys if when I do receive the legal file it becomes clear that they compromised my case by not fulfilling their duty of care.
If so I guess to collect on negligence or malpractice I would have to sue the attorneys.
If I am unable to find a new attorney based upon the negligence of the first attorneys would that be sufficient to file a personal injury case against them ...or must it go to trial for a court decision? Or could I sue them based upon negligence as per their deficiencies in duty of care without going to trial against the insured?
You state "You have no personal injury case against the original attorney and I would not advise proceeding in your claim against them without counsel as it involves complex litigation."
I thought either malpractice or negligence fell under personal injury. I realize that until I receive my file and learn whether I was afforded proper duty of care I have no case...and of course a new personal injury attorney would have to assist me in assessing that. ...but I just wanted to clarify the difference between malpractice, negligence and personal injury against my attorneys.....if they in fact neglected to collect data and evidence to support their demand for 325K. Also is the statute of limitation on either malpractice or negligence four years in Florida?
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