Attorney Fails to Produce Evidence in Civil Case

Joseph O'Neill

Written by
— Updated on October 13, 2017

Legal Malpractice Expert WitnessThis case takes place in Indiana and was an action arising out of the death of plaintiff’s sister while awaiting trial. The sister was receiving treatment for a heart condition at the time. It appears that she suffered a massive heart attack and was found unresponsive by jail staff. Despite pleas by the fellow inmates, and initial complaints by her, the jail staff did nothing until the plaintiff collapsed. A lawsuit was commenced by the plaintiff on behalf of the sister. The plaintiff did nothing with regards to the case. After discovery, he petitioned the court for additional time. As is now customary in federal courts, the request for an extension was denied.  Subsequently, when faced with a motion for summary judgment, the courts easily said that he produced no evidence to show anything on behalf of his client. That matter was affirmed by the Court of Appeals. It is alleged that defendant was negligent in failing to pursue any discovery in this case.

Question(s) For Expert Witness

  • 1. What kind of negative repercussions can occur if no interrogatories or deposition are completed after discovery?
  • 2. Would the plaintiff have more of a chance to have won litigation if not for the inaction of defendant attorney?
  • 3. Please explain you experience working on similar cases

Expert Witness Response E-012960

All lawyers practicing law in the state in question, are required to adhere to the Rules of Professional Conduct.  These Rules set a floor of acceptable attorney conduct.  In other words, the Rules provide a minimum level of acceptable standards that an attorney must provide when representing a client.  In part, the Rules make clear that all lawyers who undertake a representation, must do so with Competence and Diligence.

Competent representation of a client requires the lawyer to engage in thorough and adequate preparation.  The lawyer must conduct an inquiry into and analysis of the factual and legal elements of the problem and is required to use methods and procedures meeting the standards of competent practitioners. In a lawsuit concerning a potential action of this nature, it would likely be quite important to conduct a thorough factual investigation of the facts and circumstances concerning the death of the plaintiff’s relative.  Under the Federal Rules of Civil Procedure, each party is permitted to serve 25 written interrogatories without formal court approval. As such, one would assume that as part of a factual investigation an attorney engaged in competent representation would have served at least 25 interrogatories on officials at the jail in an effort to determine facts relevant to the death of the plaintiff’s relative.  These interrogatories may have provided information regarding individuals who may have witnessed the incident and who may have relevant factual information regarding the incident.  This is important, because if the interrogatories had provided leads regarding potential witnesses, it would have provided the lawyer with a list of individuals s/he may have needed to depose as part of his/her efforts to effectively bring the claim.

Diligent representation requires a lawyer to act with reasonable diligence and promptness in representing a client. Lawyers are admonished that perhaps no professional shortcoming is more widely resented than procrastination. Moreover, lawyers in the state in question are warned that a client’s interests often can be adversely affected by the passage of time and that in extreme instances, the client’s legal position may be destroyed. As such, a lawyer should not assume that s/he can put off engaging in discovery efforts on the assumption that s/he will be able to obtain an extension from the court.  To do so risks the client’s ability to effectively prosecute his/her claims.

If a lawyer procrastinates and fails to conduct a timely inquiry into and analysis of the factual circumstances of a case, it can result in tangible harm to his/her client.  Specifically, it is quite common for parties to file Motions for Summary Judgment at the close of discovery. In fact, it is basically a routine part of civil litigation.  At its core, a Motion for Summary Judgment attempt to demonstrate to the court that there are no material factual disputes in the case, which allows the court to enter a dispositive ruling in the case.  It is very common for a defendant to file a Motion for Summary Judgment in an effort to stop matters before they reach the trial stage.  As such, part of plaintiff’s typical job during discovery is to develop and uncover facts that will demonstrate to the court that there is a genuine dispute as to material facts.  Id.  If plaintiff’s counsel fails to gather factual information via interrogatories and depositions, it could make it quite difficult to rebut claims made in a defendant’s Motion for Summary Judgment.

It would appear quite difficult for a plaintiff to survive a Motion for Summary Judgment without the development of significant facts during discovery proceedings.  The responsibility for developing these facts lies with the plaintiff’s lawyer and is an essential component to the representation.  It is important that the plaintiff’s lawyer obtain facts in a manner that will be admissible before the court and develop a record of factual information that the lawyer can cite to when rebutting claims in the opposing party’s Motion for Summary Judgment.  If the plaintiff’s original lawyer failed to serve interrogatories or conduct depositions, it would make it more difficult for the plaintiff’s suit to make it past the summary judgment stage.

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