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Legal Malpractice Issues

Legal malpractice: Inadequate investigation or discovery in a lawsuit, part 1

On Behalf of | Aug 6, 2021 | Duty of Care, Fiduciary Duty, Investigation and Discovery, Legal Malpractice Law |

Part of an attorney’s legal duty to their client in a lawsuit is uncovering evidence of what happened to cause the dispute. Initially, the lawyer will investigate the facts to learn whether the client has a valid claim. If enough evidence exists to support the case preliminarily, the client may decide to file a lawsuit in which they have the right to conduct discovery.

Discovery is the formal process in a suit of requesting from the other party information that could lead to uncovering evidence admissible at trial. Methods of discovery include:

  • Depositions in which attorneys take live testimony from parties and witnesses under oath
  • Interrogatories consisting of written questions requiring written responses
  • Requests for production of documents
  • Subpoenas requesting documents and things
  • Electronic discovery asking for information and data stored on a variety of devices
  • Requests for admission in which a party asks the other whether they will admit that certain things are true

Reasonable duty of care during investigation and discovery

The discovery process is formal and structured. The parties to a lawsuit must comply with rules of procedure, including meeting deadlines for requests and responses. The lawyers must be “timely, [act] in good faith, and with due diligence …” with attention to the courteous and efficient exchange of information, to quote the Florida Handbook on Civil Discovery Practice.

In part 2 of this post, we will give examples of how an attorney might be negligent or breach their fiduciary duty to a client in investigation or discovery.