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I retained attorneys in a personal injury case. I had a serious

I retained attorneys in a...
I retained attorneys in a personal injury case. I had a serious injury and required rotator cuff surgery when I fell in a garage (due to loose construction debris in a pathway) owned by a condo association. I filed a claim with the insured and retained personal injury attorneys. My attorneys immediately determined that there was liability upon the insured as a result of my injury and their negligence in not having properly cleaned up the construction debris in the garage area where I fell. They believed it was worth over 300K in damages. After several years of their involvement in the case they submitted a claim against the insured for 325K and then came back to me with a 3K offer. They now claim they cannot prove liability because they claim that they cannot prove now that the debris I fell on was due to construction and not just a loose pebble that blew in from outside the garage. It appears that they never did investigate, take photos or interview the witness. I have asked them for copies of all discovery done and they claim that because the case is NOT in litigation no discovery was done. In anticipation that any personal injury case might end up in litigation at some point I would think that the attorneys might have gathered photos, copies of the contract from the construction group involved and an affidavit from the witness. It appears that they excuse themselves from not having done due diligence three years ago when the accident occurred because if they are not actively in litigation it is not proper protocol.

In the absence of a filed lawsuit should an attorney handling a personal injury claim be obligated to do proper due diligence to support claims against the insured in order to support their liability? For instance if a person fell due to an un-repaired hole on a walkway or entranceway into an apt. bldg whereby the landlord had not protected the area from pedestrians or remedied .....and if the personal injury attorney failed to photograph the site of the accident to support liability upon the insured ......and in the end was unable to collect damages against the insured as a result of neglecting to due proper due diligence from the beginning is the attorney liable to his client?

Does the attorney have a fiduciary to do proper due diligence in terms of discovery (from the beginning) to support liability upon the insured who caused the accident as a result of their negligence? Is the absence of a filed lawsuit an excuse to not be required to or to not ask for discovery. If discovery is necessary in order to support a claim for liability upon the insured then shouldn't a lawsuit be filed in order to procure it and to be able then to have better leverage in negotiating a settlement?

How should I respond to a statement that no discovery was done because we were never in litigation and that they now believe there is no way to prove liability upon the insured? By now of course three years later the construction debris in the garage has been cleared away and in the absence of photos or affidavits from witnesses....there may in fact be nothing to support liability upon the insured.

Thanks for an answer.
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Answered in 5 minutes by:
6/7/2013
Loren
Loren, Attorney
Category: Personal Injury Law
Satisfied Customers: 35,788
Experience: 30 years experience in personal injury law.
Verified
Thank you for using JustAnswer. I am JudgeLaw and I will do whatever I can to answer your question and provide you excellent service.

I am sorry to hear of your dilemma. I realize how frustrating this is for you, but I believe I have information which you will find helpful.

Yes, I believe you are absolutely correct. Additionally, you have no obligation to accept the low ball offer. Whatever caused the debris to be there, the Assn may have breached a duty in not keeping the floor of the garage free of debris, regardless of where the debris came from.

If this attorney will not file suit and aggressively prosecute your claim, fire them and retain a different attorney who will do the job.

It is my privilege to assist you. Let me know if you need further information.  I hope I have helped you beyond your expectations in the service I have provided to you.  I am here for you.

Please remember to rate my answer when our communication is completed so I will be compensated for my time in providing you with the information you requested.

If you feel the need to provide a low rating, please stop and reply to me via the REPLY button with whatever issue or clarification you may need. I will happily answer your follow-up questions and assist you until I am able to explain the answer to your satisfaction. Please also remember that I cannot control whether the law is favorable to your situation, so please do not penalize me for having to deliver bad news.

Thank you.

JudgeLaw
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Customer reply replied 4 years ago

(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?

Thank you Jane for the follow up.

Yes, that is a bit of sloppy lawyering in a slip and fall to not preserve the scene of the accident with photos. Though, it is possible that they would not have allowed him on site. Therefore, there is really no excuse for not having filed and the failure to file within the statute of limitations is a valid basis for a legal malpractice claim.

The fact the statute has expired would account for the lowball offer.

Thank you.

JudgeLaw
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Customer reply replied 4 years ago

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.



So if the accident and injury occurred in March, 2010 it would appear that the attorneys have until March, 2014 to file suit.

Please let me know if they were barred by law from doing discovery as described above in the absence of having filed suit.
Thank you for the additional information.

There is absolutely no legal reason that your attorney could not have begun an investigation, including photos and witness interviews, without having filed suit. There is no requirement that a lawsuit is pending.

I hope this clarifies things.

JudgeLaw
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Customer reply replied 4 years ago

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.

If the statute of limitations has expired then your only recourse is to file a malpractice claim against the attorney who failed to preserve your claim by not filing suit within the time limit.If you tried to file the suit for the slip and fall now it would just be dismissed.JudgeLaw
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Customer reply replied 4 years ago

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!

Sorry, I misread the date. No, insist your attorney file suit. If they refuse, fire them and retain a new attorney who will file suit. I do not see a lack of liability from what you describe.

You have the right to have your claim diligently prosecuted.

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Customer reply replied 4 years ago

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?

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 established
until 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.

I hope this helps.

Goodnight.

JudgeLaw
Loren
Loren, Attorney
Category: Personal Injury Law
Satisfied Customers: 35,788
Experience: 30 years experience in personal injury law.
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Loren and 87 other Personal Injury Law Specialists are ready to help you
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Thank you, Jane, for your positive rating of my service to you. Let me know if you need more help or have future questions. I will be here for you. Just ask for me by name at the start of your question - "JudgeLaw" or use the following link (which you can bookmark in your browser):  http://www.justanswer.com/law/expert-JudgeLaw/
   

Best wishes and good luck to you.

If it is not too much trouble, when you receive a Customer Satisfaction Survey from JA/Pearl in a day or two, please do rate me highly (9 or 10). It affects my ability to continue to assist you and other customers on JA/Pearl and would be most appreciated.
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Customer reply replied 4 years ago

not a problem....and thanks so much for your assistance. Jane

Much appreciated.

Best wishes to you and good luck.

JudgeLaw
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Customer reply replied 4 years ago

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?

Unfortunately, legal malpractice is based in negligence and not contract. Any claim stemming from the attorney/client relationship will be, at its core, based in a breach of professional duty of care and must be rooted under negligence, rather than contract. The statute of limitations for negligence would control.

A claim based on fiduciary liability would be appropriate when there was no attorney client relationship, such as an attorney acting as trustee or executor. A claim by a non-client beneficiary, for example, would not be rooted in attorney malpractice because there was no attorney client relationship.

That is well established.

I am sorry.

JudgeLaw
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Customer reply replied 4 years ago

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 established
until 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?

It is possible that you would have a claim.

You would need to show a couple of things to make a malpractice case.

First, you would need to show that you had a valid claim. Then you wold need to prove that the attorney, through their professional negligence, caused damage to your claim. In other words, but for their malpractice, you would have prevailed in your case.

That analysis would be best conducted by your own attorney after reviewing the case file from the original attorney.

I hope this answered your question.

Thank you.

JudgeLaw
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Customer reply replied 4 years ago

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?

The legal malpractice case is a negligence case. They are the same thing.

The statute of limitations begins to run when you know or should know that the malpractice occurred. If another attorney takes the case and reaches a successful resolution the there would not be a claim against the original attorneys because you would not have damages. You need to prove that the original attorneys caused damages to your claim by their professional negligence.

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.

Thank you.

JudgeLaw
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Customer reply replied 4 years ago

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?

Your claim against the attorney is for professional malpractice which is a type of negligence. Personal injury is also a type of negligence claim that involves one party causing another physical injury. A professional malpractice claim would not be a personal injury claim.

Thank you.

JudgeLaw
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Loren
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