Notice of Service- Interrogatories

G

gcharlie

Guest
Jurisdiction
Florida
I'm one of several siblings listed as plaintiffs in a civil suit (non-family matter) in Florida. Our attorney said discovery pleadings were sent to opposing counsel 2 1/2 months ago. No Notice of Service was filed with the court; the attorney said this is not required, however my understanding of the FL Rules of Civil Procedure is that filing notices for interrogatories is required.

Opposing counsel is an insurance defense attorney (with more than 600 cases under his belt) representing the defendant through professional liability coverage. To date, no Notice of Answers to Interrogatories has been filed with the court. A review of his cases shows he typically files a notice re: answers within 30 to 60 days of being served.

I am very concerned that our attorney has been less than honest with us regarding discovery pleadings and work on our case. The attorney is an experienced litigation attorney and other case dockets do show that she filed notices pertaining to interrogatories (either as the propounderer or the answerer). The attorney has promised several times to send us copies of the interrogatories via snail mail (but not via email) and has not done so. Likewise, we have not been billed for legal services in more than five months, despite repeated written requests to keep our billing current. We have requested status updates via email, which have gone unanswered, but a conference call has been scheduled for next week.

The other plaintiffs are aghast that I have suggested our attorney may have lied to us.

I'd appreciate an assessment of the situation and any suggestions others may have to offer, both in terms of dealing with the attorney and my siblings.
 
Time will tell if your "spidey" senses are functioning properly, OP.

I suggest you participate in the upcoming conference call, take notes, ask questions, listen to what your attorney has to say, thank her, and convene a conference call later in the day absent the attorney to discuss the matter amongst yourselves.

if you're correct in your thinking, don't despair.

You simply hire another attorney to get the case back on track.

If you decide to replace your current attorney, your new attorney will describe the process and how the case gets moving again.
 
That appears to be true. See Rule 1.340 (e):

http://www.floridabar.org/TFB/TFBResources.nsf/0/10C69DF6FF15185085256B29004BF823/$FILE/Civil.pdf

Paragraph (a) gives a time limit for responding to interrogatories.

FL RCP provide for a thirty day response period if the interrogatories are not served with the complaint. Even with a courtesy extension of 30 days, there should either be a response from opposing counsel or some follow up by our attorney by now.

I'm working to come up with questions in such a way that I am assertive, without being aggressive or accusatory.
 
No Notice of Service was filed with the court; the attorney said this is not required, however my understanding of the FL Rules of Civil Procedure is that filing notices for interrogatories is required.
Don't confuse filing and service. I am not a Florida attorney, but as I understand the rule there a party may serve interrogatories on the other party without filing them with the court, or without also filing proof of service at the same time.

Proof of service only become an issue if someone doesn't respond to something they've been served, and it becomes necessary to default them or require them to take some step in response. As indeed appears to have become the case here... I imagine your attorney could now make a motion under Rule 1.380 as they have failed to answer the interrogatories in the required time. At that point they'd probably need to file proof of service.

What you want to do is ask your attorney why the other party hasn't responded in the required time (counsel frequently agree not to strictly adhere to time limits for a variety of reasons), when you are going to get a response, and what the attorney will do now that the time has passed.
 
As an update, the conference call took place midweek with the attorney being out of office. This meant that he did not have access to his files, and I was unable to ask detailed questions as to dates relating to discovery pleadings and follow up. Was told that she had cleared her calendar for Friday and that the requested email would be emailed to us by the close of business today.

Late in the business day, I received an email from the attorney to the effect that she was out of the office and would not be able to send the requested materials to us today, but she would go into the office over the weekend to do so. This email was sent via iPad device, and I will take off my kid gloves now. Florida requires, absolutely requires, that attorney to attorney service be done via email. If this attorney can access and reply to my email on her iPad, said attorney should be able to access and forward discovery pleadings to me from the same iPad without going into the office, doncha think? Or am I expecting too much?

In the conference call, I was told that discovery pleadings now include both propounding interrogatories and a request for production, yet the docket is silent.

I have no confidence in this attorney, and if it was my call only, she would be replaced. Unfortunately, I am one of several plaintiffs who, while frustrated with delays, are accepting of the situation.
 
It never hurts to seek other opinions.
It won't cost you for the initial consultation.
If you have time, perhaps you could discuss your concerns with three other attorneys in a nearby city or county?
Once you complete those visits, you'll be able to disseminate, discuss, deliberate, and decide your strategy.
My "Matlock" senses tingled after reading your recitation of today's discoveries.
 
In the conference call, I was told that discovery pleadings now include both propounding interrogatories and a request for production, yet the docket is silent.

Read dee_dub's explanation as to why the docket is silent.

Discovery is between the parties and the court doesn't get involved unless one of the parties petitions the court to get involved.

OK, so it's Friday and everybody took off early for the weekend. That's life. Give it a few more days into next week.

Bottom line though, if you can't get the other heirs to agree to put your attorney's feet to the fire, you'll just have to resign yourself to waiting while the litigation plays out.
 
f this attorney can access and reply to my email on her iPad, said attorney should be able to access and forward discovery pleadings to me from the same iPad without going into the office, doncha think? Or am I expecting too much?
I don't see much of a question here, other than this. I would say the answer is maybe. Who knows what she has on her iPad? Many people do things without access to their office files.

What I *would* say is that if she had a conference call scheduled, and she wasn't prepared for the conference call, she's giving less than exemplary service, and your thoughts about replacing her are not unreasonable. Unfortunately you'll need to retain a new lawyer and they'll need to get up to speed on the file before moving ahead with it, and that will take some time and money.

Talk to a few other lawyers and get a sense for what's going on, and whether it would be productive to move your file over. And talk to your current lawyer and get some answers from them about whether things are going slowly (they might not be), and if so why and what they're going to do about it. It might help to get them to commit to a timeline - they will have answers to their interrogatories in X days, or they will make an application by such and such a date to compel answers, etc.
 
I have no confidence in this attorney, and if it was my call only, she would be replaced. Unfortunately, I am one of several plaintiffs who, while frustrated with delays, are accepting of the situation.

What is this lawsuit about?

You mentioned insurance defense attorney so I'm guessing personal injury that went to suit when no settlement agreement was reached.

You have to understand that personal injury lawsuits, especially for big money when liability and damages are in dispute, could take years to go through the litigation process and plaintiffs are invariably impatient about the process.
 
My spidey senses were right.

Just before the close of business today I received an email from our attorney with two Word docs attached as the discovery pleadings.

The Certificate of Service section of the documents referenced March, with no specific day. So, the pleadings were not sent to opposing counsel in January, as represented during a phone call in early February.

The documents I received today should not be what was served on opposing counsel; e-service requires that documents must be in pdf format. Case law in Florida might raise some eyebrows about how strictly the courts interpret e-service requirements.

For those who have chimed in about the docket not including any notice re: discovery, I will ask if you are well versed in Florida civil procedure. My understanding of both the Florida Rules of Civil Procedure and actual practice by reviewing cases is that attorneys adhere to filing with the court on both the initiating a answering end when it comes to discovery. The absence of any discovery filings is contrary to what I have seen in cases where discovery is appropriate to the suit.

There are no changes to the docket today. I will be checking it on a regular basis.

This is not a personal injury suit. It is a trust litigation suit.

FWIW, my background is in finance and accounting, having served as CFO of small to medium sized, but complex organizations, thus the legal side of things fell to me as well. I have years of researching things, both in substance and form, in order to protect both the organization and myself as a professional.
 
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My goal is to get this whole mess with the trust straightened out, with: 1) the trustee replaced by a successor trustee who will file amended returns with the IRS so that we are no longer under scrutiny by the IRS for a trust return that we know to be materially incorrect to the point where tax attorneys deem it a fraudulent return; 2) distribute the remaining trust assets and terminate the trust; and 3) recover damages and legal fees in the most cost effective manner.

The IRS exposure was the motivating factor for bringing this suit. The trustee failed to report over $1 million in income as taxable on the first return filed by the trust. The trustee was advised that the return contains grave errors, but has not taken any further action with the IRS. Beneficiaries have acted in a pro-active manner and reported their shares of the under reported amounts (as best can be determined) as income, reporting the discrepancy on IRS Form 8082. Some beneficiaries have received notices from the IRS on this matter, which cannot be resolved until an amended return is filed.

This matter was ripe for litigation more than two years ago, yet our attorney delayed filing suit until the summer of last year, despite our written instructions to file suit. Again, the matter has been complicated by siblings who allowed the situation to perpetuate.

My issues with non-compliance with rules has more to do with confidence, or lack thereof, of diligence by our attorney in advocating and advancing our suit. If she has not been forthcoming with us in terms of what she has done and process, how or why should we rely on her if and when matters do become much more complicated?
 
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For those who have chimed in about the docket not including any notice re: discovery, I will ask if you are well versed in Florida civil procedure.
That would be me, and I told you I wasn't a Florida attorney. If you'll recall, my (and others') advice was:
Talk to a few other lawyers and get a sense for what's going on, and whether it would be productive to move your file over.
On further review of the Florida rules, I see that interrogatories indeed should be filed. (See 1.340(e): "The interrogatories shall be served on the party to whom the interrogatories are directed and copies shall be served on all other parties. A certificate of service of the interrogatories shall be filed, giving the date of service and the name of the party to whom they were directed." Although it doesn't say *when* the certificate shall be filed...)

Anywho, you've obviously lost confidence in your lawyer.
If she has not been forthcoming with us in terms of what she has done and process, how or why should we rely on her if and when matters do become much more complicated?
That's a good question to ask her.
 
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