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

[PayrollHRGuy]

No kidding which goes back to his whole malpractice thing.

But the point is if there was no financial loss because of the lawyer's action or inaction what do you suggest the OP can get via a malpractice suit?

 

[Redemptionman]

But the point is if there was no financial loss because of the lawyer's action or inaction what do you suggest the OP can get via a malpractice suit?

I don't think the OP has a malpractice case, with that said. There was damages left on the table by not pursuing all the amount of damages sought by law. When the OP signed the release they gave all that up for a settlement. If it was too low then they should not have accepted the settlement.

 

[PayrollHRGuy]

I don't think the OP has a malpractice case, with that said. There was damages left on the table by not pursuing all the amount of damages sought by law. When the OP signed the release they gave all that up for a settlement. If it was too low then they should not have accepted the settlement.

Then all of your previous posts were simply waists of time and disk space.

 

[Redemptionman]

Then all of your previous posts were simply waists of time and disk space.

Gee nice statement, OP was looking for suggestions as to preservation of evidence in his trail this would work. I think you need to examine your own posting if you are looking for the other part.

 

[Zigner]

Gee nice statement, OP was looking for suggestions as to preservation of evidence in his trail this would work. I think you need to examine your own posting if you are looking for the other part.

No, the OP was looking for possible recourse against his attorney for what he perceived was a failure to send out a proper notice to preserve the evidence.

 

[zddoodah]

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 was the request made? When did the erasure happen? Was the erasure done in the ordinary course of business, or did this worker specifically erase video of your father? If the latter, was it done at the request of someone? If so, who?

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'm curious about the part in bold. Who cares if your lawyer did or didn't agree? It's not the lawyer's decision to accept or not accept a settlement. It's the client's decision. Did you tell your lawyer (and the mediator) that you wanted to settle for that amount? Also, just because the mediator recommended the amount does not mean the other side would have accepted.

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.

Well...did it matter? You said your father fell after leaving the store, so video of him inside the store wouldn't likely be probative of anything. Was there actually video of him falling? Did anyone witness him falling? Since you spent two years in litigation, there must have been SOMETHING beyond the fact that he fell on the gas station property. Right?

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?

Impossible to say without answers to my questions above.

Do I have a right to ask

You have the "right to ask" anything of anyone.

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.

Understood. However, as it relates to a malpractice case, you have to prove not only that the lawyer failed to meet the relevant standard of care but also that the lawyer's failure caused damage to you. Let's assume that it was negligent for your lawyer not to send a preservation letter (something that is anything but a given). In order to prevail in a malpractice case, you still have to prove that it is more likely than not that, if the letter had been sent, you'd have gotten a better result. That is an EXTREMELY difficult thing to prove.

That is not necessarily true, the plaintiff attorneys could have asked for Spoliation of evidence sanctions against the defendants.

Cite?

I won't give you a citation, but it is absolutely correct that the OP's attorney could have asked for sanctions for spoliation. If appropriate, the sanction would likely have been an instruction that the jury make some sort of assumption. Impossible to say without a lot more information what sort of instruction (if any) might have been appropriate.

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.

True, but the defendant MIGHT HAVE done it.

 

[Zigner]

I won't give you a citation, but it is absolutely correct that the OP's attorney could have asked for sanctions for spoliation. If appropriate, the sanction would likely have been an instruction that the jury make some sort of assumption. Impossible to say without a lot more information what sort of instruction (if any) might have been appropriate.

While true, I believe it is moot. A settlement was reached, so that sanction is meaningless.

 

[PayrollHRGuy]

I won't give you a citation, but it is absolutely correct that the OP's attorney could have asked for sanctions for spoliation.

That wasn't the point.

 

[Redemptionman]

The real point is payroll was wanting to do all he can to discredit my post and make me look like a fool. Doesn't bother me at all as I was just giving a suggestion as to what the OPs defense could have done that they didn't. A malpractice case against an attorney in this situation is a waste of time due to the fact that they agreed to a settlement that was presented to them. It is a little disheartening that he could not get what he felt it was worth. However, he could have refused it and then the attorney leaves the case and they would have been left to find another attorney thus getting less money or even Zero dollars. You really are in a no win situation at that point.

 

[PayrollHRGuy]

A malpractice case against an attorney in this situation is a waste of time due to the fact that they agreed to a settlement that was presented to them.

It was to my post that you responded about the spoliation issue. As I mentioned there is NO reason to believe the video would have helped the case in any way.

 

[Redemptionman]

It was to my post that you responded about the spoliation issue. As I mentioned there is NO reason to believe the video would have helped the case in any way.

It would and if you do not realize why it would then I do not know what to say.

 

[Zigner]

It would and if you do not realize why it would then I do not know what to say.

I'm sure that nobody here knew that you were directly involved in the matter and had seen the video.

 

[PayrollHRGuy]

As I wrote in a previous post.

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.

 

[adjusterjack]

Dead horse, folks, let's move on.