When Must a Plaintiff’s Attorney Recuse Him or Herself in a Florida Trip and Fall Case?

lawyers-140579-m.jpgTrip and fall cases can be difficult to prove in Florida. A critical aspect of preparing a case is interviewing witnesses, including the property owner or manager. Usually an investigator does this investigation alone. Sometimes, an attorney accompanies the investigator, but this can raise certain risks, such as the risk that the attorney will become a witness. This is particularly likely in multi-party personal injury cases.

In a recent trip and fall case, a Florida appellate court considered whether an attorney had to be disqualified after becoming a witness. Subsequent to the initial appellate ruling, the appellate court granted a motion for rehearing and substituted a different opinion.

In the case, a plaintiff sued a store for personal injuries after tripping and falling near the store entrance in a shopping center. A guardrail had been taken away from a handicap access ramp, leaving a hole that the plaintiff tripped on. Her tibia and shoulder were broken, requiring surgery.


The store manager spoke to the plaintiff’s attorney. Later the shopping center’s attorneys sent a notice of deposition to the plaintiff’s attorney. The trial judge permitted the deposition to go forward. The plaintiff’s attorney testified at deposition about the conversation with the store manager. The manager told the attorney that he had removed the railing because of a customer complaint that it wobbled. He hadn’t reported the rail to the property manager.

The store manager denied making several those statements in his deposition, only admitting a customer had complained about the wobbly railing. He denied removing the railing or knowing who removed it. The store later moved to disqualify the plaintiff’s attorney on the grounds that he was a necessary witness and in Florida, you cannot act as counsel if you are a necessary witness. The plaintiff argued that her attorney would only testify if the defendants called him; he was not necessary because an investigator was present during the conversation and could testify.

A judge issued an order disqualifying the plaintiff’s lawyer anyway. The plaintiff appealed. The Court of Appeals heard the matter and the plaintiff requested a rehearing. The appellate court rehearing the matter explained that the lawyer would only be barred if he were a necessary witness on the plaintiff’s behalf. The plaintiff in this case didn’t plan to call the lawyer as witness on her own behalf and the same facts could be obtained at trial from the investigator who was there when the store manager was interviewed.

The shopping center’s attorneys argued that the trial court was right to disqualify the attorney because they planned to call the attorney to establish their co-defendant, the store, had primary responsibility for what had happened to the plaintiff. Accordingly, his testimony would be adverse to the plaintiff because she was claiming the shopping center was negligent.

The appellate court noted that a conflict requiring disqualification could arise if the opposing counsel called trial counsel as a witness such that the testimony was adverse to the client’s argument. However, in this case, the appellate court explained, the shopping center defendants had not demonstrated that the trial attorney’s testimony would be significantly adverse to the plaintiff and the plaintiff had agreed to waive the conflict.

An attorney knowledgeable about the procedures and rules of Florida personal injury law can make all the difference if you need to file a slip and fall lawsuit. Call the experienced South Florida premises liability attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

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