A Las Vegas resident who has sued a big Albuquerque law firm suffered a setback earlier this month, but he is not giving up.
In October 2008, Joe Robert Encinias, a former Robertson High School student, filed a lawsuit against the Whitener Law Firm. That firm is led by Russ Whitener, who is famous for saying in his commercials, “Before you accept a check, check with me.”
Encinias, through his attorney Roger Eaton, maintains that he checked with Whitener, but the firm missed a deadline to file a lawsuit against the Las Vegas City Schools district. Encinias says the district had a duty to provide security in an area where students ate lunch.
According to the lawsuit, Encinias, then 14, was hurt when a suspended student got onto campus and attacked him.
The incident happened Sept. 30, 2004, but the Whitener firm didn’t file a lawsuit until November 2006. That was after a two-year statute of limitations for filing such a claim.
The school district had the lawsuit dismissed as a result.
Last week, District Judge Eugenio Mathis threw out Encinias’ claim that the district had a duty to keep students safe in the 2004 situation. That underlying claim was crucial because if Mathis had ruled it as valid, then Encinias would have been able to show financial injury when the firm missed the deadline, Eaton said.
As Mathis’ ruling stands, Encinias wouldn’t be able to get an award for the Whitener firm’s malpractice, Eaton said. As such, Encinias has decided to appeal Mathis’ ruling to the New Mexico Court of Appeals, Eaton said.
In court documents, the firm, represented by Barry Williams, argues that nothing more than negligence could be proven.
Eaton disagreed, saying the firm tried to cover up its mistake. He maintains in legal briefs that the firm never met with Encinias or his family and never told them that it had missed the deadline.
The firm didn’t file the lawsuit until Encinias came in to talk about it, Eaton contends.
“The defendants filed a lawsuit that they knew was untimely just to hide their mistake and save face with their clients,” Eaton states in documents.
As such, he argued that punitive damages may be awarded to Encinias.
In the year since the case was filed, both sides have generated mounds of paperwork. The case file now amounts to four binders, each at least two inches thick.
Eaton said the attorneys representing the law firm are better than the firm itself. The lawsuit accuses the firm of exaggerating its abilities through massive advertising.
“The Whitener Law Firm was not a firm that had the ability to prepare and try cases in court, but was actually a settlement mill that takes a large volume of cases and settling them for less than they are worth,” the lawsuit states.
Whitener’s attorneys couldn’t be reached for comment.