Asked over 1 year ago - Las Vegas, NV
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I had a legit slip and fall at a retail store. I retained an attorney two weeks later after it became apparent that my injuries were more serious than originally thought. The attorney never requested that the retailer preserve the surveillance video from the scene, or anywhere in the store or parking lot (to, at the very least, prove I was there).
I have a new atty handling the case, but in the event that the settlement is weakened by the original atty's failure to act diligently, is that grounds for a legal malpractice claim?
That's dicey. First you have to see what kind of settlement you get. Although obtaining a video tape may seem like a fundamentally obvious first step in gathering evidence to support your case, there are other ways of proving your presence at the scene of the slip and fall. If you can prove that the lawyer's inability to get the tape actually impacted your damages award, you may be in business...But, take the wait and see approach and consult with a lawyer. Have a speedy recovery (**no pun intended**) And,. . . Good Luck!
No, the defendant would have a legal burden to preserve the evidence once it is on notice for potential litigation. This is the spoliation issue that Paul mentioned, which allows for a sanction against the store. Your new attorney will need to bring a discovery motion to seek an adverse instruction or other sanctions.
A legal malpractice case is typically described as a "case within a case." In other words, to prove damages you have to prove that the lawyer's act was below the standard of care; and that but for his act of malpractice you would have recovered damages in the first case. No way to tell at this point. Here, the best practice is to wait until the first case against the store is resolved and then evaluate. If you achieve a good settlement in the first case, it is unlikely that a legal malpractice case would be profitable. This is particularily true given the fact that there is not much your first lawyer could have done other than to write a letter to the store. agree with the comments that once the store had reason to believe there would be a claim that the store had a duty to preserve any evidence including the video tape. If the tape is no longer exists your current lawyer can argue that there is an evidentiary presumption that the tape would have supported liability against the store. Also, it will depend upon what other evidence and witnesses say about the store incident. The video tape ultimately may not add much to the case. Get the first case resolved. Then look at the possibility of legal malpractice. At this point based upon limited information provided, I don't see a lot of chance for success.
Your first attorney could not mandate that the store retained the video without filing a lawsuit which was premature. The most the attorney could do was send a letter requesting a copy or demanded the store keep a copy. Then, if a lawsuit was filed and the tape was destroyed, your attorney could claim spoliage of the tape. In either case, you have to prove the lack of the tape damaged you in some manner to collect for legal malpractice.
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