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Question About Certified Letter to Preserve Video Evidence Never Sent Out Which Resulted in Death

Discussion in 'Civil Court, Procedure & Litigation' started by CaliC8Hp, Feb 19, 2022.

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  1. CaliC8Hp

    CaliC8Hp Law Topic Starter New Member

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    Jurisdiction:
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    I would appreciate any advice you can give me on how I should proceed.

    To give you a back story my father went to a Gas Station / Store and came out side and had a bad fall and his head injuries were so severe that he was put on life support. We took him off after five days. As I did not know what happened I hired a law firm after speaking to a few different lawyers about our options. I was told they would send out a letter to preserve evidence as I know time was ticking also an investigator as well. No investigator ever went to the property.

    For the last two years we went through depositions. We found out that the worker erased all video evidence of my father being inside the store and outside even after we requested for them to keep it. When ever I spoke to the legal assistant I was told that they have a certified signed receipt requesting them to keep all video evidence. Also in an email I was told by the lawyer that a spoliation letter was sent out when responding to my email about the certified letter.

    Due to pandemic causing delays in a possible trial we were advised to go into Mediation. Our Lawyer started with a high number and during our meeting the defense told us they never got anything from our lawyer about a request to withhold video evidence. All that was said by our lawyer was it was sent out and a smirk. I thought for sure that the Certified receipt would of been shown at that time to show that a request was sent to preserve the videos.

    Nothing got resolved that day even though the Mediator gave our lawyer an amount during mediation that they would likely settle for which was not agreed to by our lawyer which should of been since we ended up settling for a lot lot less.

    I was sent out the final Billing (Had know idea of any amounts owed going into mediation btw) and on the bill there was no charge for a certified letter asking to preserve video evidence. I asked the legal assistant where this charge was and to send me a copy of the signed receipt. I was shocked to learn from him that they do not send out certified mail requesting this info. I was told they only do it only for insurance. Well I would think the request for video would be very important to this case and to have proof of it. He was the one telling me for the last few years that they had a signed receipt. Knowing this it would be good evidence to present in a potential trial to show that they possibly covered something up.

    During this whole process my brother was told that the video evidence really did not matter because now to find out that they did not bother to ask for it. They only bothered to press the issue during the workers deposition and also come to find out we had to pay $1700 for an interpreter for four hours of worthless testimony about him erasing tapes.

    Is this legal malpractice where in such a case that a lawyer should have sent out a certified letter asking to preserve the tape when someone died from injuries? Do I have a right to ask them to lower there percentages that they take from this case down to almost nothing since we were mislead to believe that they represented our family as others in the legal community would have?

    Thank you for taking the time to read this and I appreciate any and all responses.
     
  2. army judge

    army judge Super Moderator

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    Please accept my condolences upon the passing of your beloved father.

    The actions or inactions of your attorney could be many things.

    To prove legal malpractice you must establish the following four elements:
    (1) duty,
    (2) breach,
    (3) causation,
    (4) harm.

    These are the four basic elements for most torts in California.

    The limitations period to file a legal malpractice action is the lesser of one year from actual or imputed discovery, or four years regardless, unless tolling applies.

    If you believe you are the victim of legal malpractice, I suggest you discuss your concerns with at least THREE California attorneys to see if you have a case or a simply a dream.

    A civil lawsuit has little (if anything) to do with "rights".

    If you aren't time barred, you might be able to bring a lawsuit against your attorney to seek redress of your grievances.
     
  3. adjusterjack

    adjusterjack Super Moderator

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    Are you saying that your father would not have died if the video had been preserved?

     
  4. CaliC8Hp

    CaliC8Hp Law Topic Starter New Member

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    I wish that was the case. I was just stating that it was a wrongful death case.
     
  5. Redemptionman

    Redemptionman Active Member

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    The term you are looking for is called Spoliation of evidence and can result in sanctions.
     
  6. adjusterjack

    adjusterjack Super Moderator

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    It could be. You would have to prove that, but for the missing tape, the outcome would have been substantially different. Apparently there was an acknowledgment that your father did fall and was injured at the gas station.

    The video wouldn't have been necessary to prove that, as there were likely other ways to establish that.

    In fact, the video could have absolved the gas station owner of any liability if there was no defect to the property.

    You have a right to ask. The attorney has a right to say no.

    You had a contingency agreement with the attorney. You settled. You could have said no, and gone to trial. You settled and the attorney got paid and the expenses covered.

    You can consult a few malpractice attorneys and review your options.
     
  7. mightymoose

    mightymoose Moderator

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    As you describe it, I am not so sure there was any duty to preserve the video.
    A request to preserve it can certainly be denied.
     
  8. army judge

    army judge Super Moderator

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    Plus, good intentions often end in undesired results.

    The video MAY have been erased by mistake.
    The video could have become corrupted because the equipment malfunctioned.
    A nearby lightening strike could have caused the recorder to go on the fritz.

    The video could have been stolen, lost, or misplaced.

    Just because the video is missing doesn't mean the business caused it intentionally.
     
  9. CaliC8Hp

    CaliC8Hp Law Topic Starter New Member

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    Thank you for your reply. What they did with the video or what happened to it is not what I am trying to get at.

    We hired a lawyer to represent us and we were told for the last few years they had a certified receipt that a letter was sent out to company asking to preserve any video evidence they may have. Come to find out we were misled and they never have any such thing in there possession. The defense said they never got any request to keep the video during mediation so at this time I thought since our lawyer had the certified mail receipt it would of been shown. Moving forward if this went to a jury trial this could of been used as evidence that at least we asked for it. The whole case was a lot more then just this. We just feel that we were not properly represented in regards to them not asking for the video evidence.
     
  10. Redemptionman

    Redemptionman Active Member

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    Evidence for what? Do you understand how a jury deliberates civil personal injury cases?

    Only question is was the individual injured from the incident that happened at that shop and were those injuries the result of the incident, If Yes then go to damages. That video isn't really going to do much other than confirming what you said. The jury only needs to believe the injury was the result of the accident. Once answered damages are determined from your medical, lost wages, etc. etc.
     
  11. Zigner

    Zigner Well-Known Member

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    That is absolutely not correct. The mere fact that the incident happened on their property doesn't necessarily give rise to liability. For example, if my shoe was untied and I walked out of a convenience store, tripping over my untied shoelace in the process, the convenience store won't have any liability.
     
  12. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Unless the defendant is denying that he fell on their property or the video showed that the defendant was somehow at fault because they knew or should have known that there was some danger that was their responsibility the video really wasn't going to help you much. And if the video wasn't going to help you, you have no damages that your attorney's failure to get the video.

    At most, you have an issue about the billing for something they didn't do.
     
  13. Redemptionman

    Redemptionman Active Member

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    That is not necessarily true, the plaintiff attorneys could have asked for Spoliation of evidence sanctions against the defendants. This could have possibly led to more damages on the back end of the case if you all would have decided to go to court. However, you took a settlement and with that settlement you forfeit your right to ever ask for more damages in the future in consideration of the funds you are granting a full release.

    Now you want to renegotiate the release and sue your own attorneys for not telling you this. If you had gone to trial, and your attorneys will look at judgements from the local court and know what they want to do. No one knows what you settled for but keep in mind that a jury could have awarded you less or even 0 dollars to multiples of more.Jury trials are always a roll of the dice and depends on the people who make up the pool. You also have no grounds to seek a reduction of their fees since you signed a contract agreeing to them in the first place. In a post civil tort reform world, human lives have little to no value especially to the companies paying for it. Also I am not sure if they ever admitted liability but since you settled that is immaterial.
     
    Last edited: Feb 21, 2022
  14. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Cite?
     
  15. adjusterjack

    adjusterjack Super Moderator

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    It's an insurance industry standard that a "Release of All Claims" contain words to the effect that the settlement is without any admission of liability.

    Any talk of liability or fault during settlement negotiations would not be admissible in court.

    Then make a complaint with the Florida Bar if it'll make your feel better.

    To prove malpractice (quoting myself)

    That makes the video irrelevant as there are other ways of determining negligence, not the least of which is the examination of the spot where your father fell, in order to determine if there was any defect there.

    Was that done?

    Was there a defect?

    Were there any other factors that could have contributed to the fall? Your father's age, perhaps? His physical/medical condition? Weather conditions? Time of day?

    You are placing way too much emphasis on video.
     
    army judge and Zigner like this.
  16. Zigner

    Zigner Well-Known Member

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    @adjusterjack is absolutely correct. The video shows that your dad fell there, an event for which there doesn't seem to have been any disagreement. Anything else would need to have been followed up with additional evidence.
     
  17. Redemptionman

    Redemptionman Active Member

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    Last edited: Feb 21, 2022
  18. Redemptionman

    Redemptionman Active Member

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    Which is why I said that it was immaterial since they settled. Also can't bring up insurance coverage if it goes to a trial proceeding. Again, none of this matters since the OP took the settlement.
     
  19. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    That really isn't a cite. I think most of us know what the term means. And I'm proud of you that you have learned it. But the OP's attorney didn't do what is described by the term.
     
  20. Redemptionman

    Redemptionman Active Member

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    No kidding which goes back to his whole malpractice thing.
     

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