Palm Coast Injury Law Blog : Florida Personal Injury Lawyer & Attorney : Philip J. Chanfrau

A woman whose native tongue is Spanish came into see me today.  Her broken English is much better than my non- existent Spanish so there was an interesting challenge to overcome during our initial conference.  No one else in my office is fluent in Spanish.  She was a walk in client and had not called  for an appointment.  I did not want to  disappoint her by postponing the new client conference, and thought I'd try out some interesting new technology available on Google.

In her broken English I learned she had been involved in a recent car accident.  Naturally I needed to get some basic information.  I learned she was in a two car accident, on a local 4 lane parkway.  Fortunately I had written a recent post about her type of accident, and so I was able to send my post to translate.google.com where it was instantly translated into Spanish for her.  I also used the translate function to ask some questions about her medical care, her diagnosis and current symptoms.  After a few minutes we decided a more lengthy conference would be needed next week. Google can also be used to translate my client intake documents. 

The Florida bar requires every lawyer who represents a client on a contingency fee basis to provide the new client with a Statement of Clients Rights, before signing a contingency fee contract.  I decided to give her a copy in Spanish, and to also translate my fee contract too, so she has a better understanding of her rights and obligations.

Legal concepts like negligence,  the closing speed between two cars in a collision, the amount of property damages, and the adverse consequences of filing a suit for damages were also discussed.  I relied heavily on the translate.google.com program as we sat in my office.  I typed my questions into google, pushed the "translate" button and she read the translation from  my desktop. After reading the question in Spanish, she explained the best she could and I typed followup questions as needed.  We both thought the technology was fun to use, and were more comfortable with each other for having used it.

Even when a person has no language barrier Legal concepts can be difficult to understand.  It is the lawyer's job to make a reasonable effort to assure the client understands the law. 

I tell my clients I do not practice Veterinary Law:  I represent people, not puppy dogs or kitty cats.  They want and need to be involved in legal decisions affecting them. I have an ethical obligation to try to make sure they understand my advice.

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Rear end collisions have been around since cars were invented. (Funny, but I have never seen a pelican in formation fly into another one: Why not?)  I was asked recently by a client whether she had any legal rights when she rear ended the car in front of her. This raises the legal issue of what happens when a driver may only  be partly at fault (negligent). 

I learned  the lead car was going 50 mph in broad daylight, and accelerating on a three lane entrance ramp to the interstate, when it suddenly and abruptly stopped for no apparent reason.  There was no stop sign, traffic signal, road construction,  sinkhole, no other cars ahead of them merging into their lane, no road debris, no pedestrians or animals on the ramp, and the lead car  just suddenly stopped!!!  My client was not expecting that. She tried to stop but could not.  She crashed into the back of the lead car. 

• Florida has the "Gotcha" rule which applies to rear end collisions like this one.  The rule comes up rarely. It means that the rebuttable presumption of negligence which usually applies when the rear car hits a lead car, disappears when the lead driver makes a sudden, abrupt stop at a time and place where such a stop would be totally unexpected.  The presumption is said to have been "rebutted." (The law of "presumptions" is  discussed in this blog. )
• In such cases, the rear driver, acting as a reasonably prudent person driving a car or truck, has a good reason to not expect the lead car to make a sudden stop.  So, if the rear car driver gets sued, the jury can consider all of the circumstance, and conclude she was only partly at fault or maybe entirely at fault, but it is not a foregone conclusion that the rear driver was the only one at fault.  This makes insurance companies for the rear drivers happy.
• The lead driver is not entitled to a court ordered directed verdict, and the judge does not tell a  jury  they MUST find the rear driver to be negligent (at fault.)
• The rear driver, if the Jury so finds, may be entitled to recover her damages if the Jury believes she was hurt due to the negligence of the lead driver. IN most cases the lead driver will sue the rear end driver.  The rear end driver will report the case to their insurance company which will appoint a Defense attorney to handle the defense. However, the rear driver must file a mandatory counter-claim or it will be barred.  The insurance company defense attorney should advise the rear ending driver to consider whether to make such a claim so their rights to make a claim will not be waived.  Another attorney, who can handle the personal injury claim as a counter-plaintiff should be consulted by the rear end driver.
• Gotcha stops are rare.  They may be a result of road rage situations or other strange driving behavior.  It's almost like the lead driver invites the rear end crash. Sudden stops in "stop and go" traffic are not "Gotcha" stops because they are expected, since everyone else is doing it too.  Typically they come up when the lead car at a light starts up when the light turns green, then goes a few feet and stops suddenly even though there is no reason to.  This  often results in a chain of rear end collisions. 

One would think that the combination of a sudden stop, and the ensuing chain of rear end collisions would result in a finding that the first lead driver was presumed to be negligent , but the courts have  so far refused to hold that way.

Florida also has a "comparative" negligence law, which combined with the "Gotcha" rule allows a jury to apportion fault in all negligence cases, including rear end cases like this one.  Bottom line: just because she was the rear end driver and crashed into the lead driver, doesn't mean she is 100% at fault with no right of recovery for her own damages.  A jury could reasobably conclude the lead driver was also to some degree negligent for the sudden, unexpected abrupt stop at a time and place where no one would reasonably stop.

In my experience the rear driver always says the lead driver was making a "sudden" stop or a "sudden" left turn.  Why? Because the rear drivers  have been day dreaming, distracted, either on a cell-phone or worse, texting.  When they look back to the road they are always startled.  To them it is sudden,  Duh! If they were watching carefully they would have had time to react.

And what if the rear driver, was herself rear ended? In the leading case in Florida on rear end collsions and the "Gotcha Rule" the supreme court clearly recognized that motorists should be on the look out for accidents ahead.  Just because a driver ahead has negligently failed to stop and was in an accident, does not mean their following driver has a built in excuse because of their sudden stop.

  In other words, the negligent driver who is himself rear-ended may have a valid case when he gets rear ended. It almost sounds like he is getting rewarded for bad behavior.  But that is for the jury to decide.

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I was asked by a prospective client whether they could change lawyers.  They said they were using another lawyer,  but he would not return their calls.     They wanted to know what their options were.  I was careful not to disparage their current lawyer or in any way try to influence their decision. 

There are a couple of things clients need to know about changing lawyers:

• When can the client make the change? 
• A)  Before suit.   Clients who are not in suit have the absolute right to change lawyers at any time, with or without cause (reason). The rules of the Florida Bar protect the client's right to do that, and the discharged attorney can not retaliate against them for changing lawyers.  The Florida Bar Rules of Professional Conduct, Rule 4-1.16(d) Protection of Client's Interest, state:

   "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee or expense that has not been earned or incurred."

• B) After suit is started clients can still change lawyers until the case is scheduled for trial.  The closer the case gets to trial the harder it is to change lawyers.  That's because the opposition has a right to get the trial over with, and may not want to a continuance while the new lawyer gets up to speed.
• How is it done? Changing lawyers is easy and simple to do.  Like changing doctors, a letter is either faxed, mailed or delivered  to the discharged lawyer signed by the clients.  The letter simply states the Clients want to retain another lawyer to take over their claim. No reason has to be given. The discharged lawyer is requested to send a copy of his file to the new lawyer. 
• How are fees and costs handled?  Even though the case is on a Contingency Fee basis, the discharged lawyer has a right to reasonable fees and costs for services rendered  if the case is later settled. In most personal injury cases handled on a Contingency Fee basis, the discharged lawyer will simply  send a Notice of Lien to the insurance company, claiming lien rights against  any future recovery.  If the amount of the costs is nominal the new attorney will simply write a check to cover the costs when the file gets transferred.  Most times the collection of the lien is postponed until the case settles. If the client discharges the lawyer and has fraudulently settled on his own before the discharge occurs, the insurance company should  pay off the lien out of the settlement.
• Most clients who hire attorneys on a Contingency Fee basis have a deal where they don't have to pay fees or costs "unless they win."  So,  they  get the of benefit any costs expended by the first firm when they change firms.  For example, copies of the accident report and medical records are included in the first lawyer's  files.  A copy of the files is transferred to the new law firm.    

Usually an experienced lawyer will suggest the client make one  more last ditch effort to get their first lawyer to return their call before terminating the lawyer.  It is also good practice  for a lawyer to call  his brethren.  They are sometimes unaware of the client's discontent, and can salvage the relationship.  It  will earn their thanks for  professionalism, and the clients are happy too. 

It is wrong for an attorney to put pressure on a client who is being represented by another law firm to fire the law firm. A lawyer who crosses the line between simply giving advice about making  a change, and bad mouthing another other law firm in order to influence the client to transfer the case to him may be sued for interference with contract.

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Last week Florida quarterback Tim Tebow got his bell rung while playing in the Florida vs Kentucky football game in Lexington.  Football fans looked on in horror as he laid on his back, apparently unable to move his arms or legs for what seemed an eternity.  Thank God he was eventually able to walk to the sideline where he sat dazed for awhile, then was taken by ambulance to the hospital for follow-up examination. The coaching staff announced that he had sustained a concussion.  It is still not known whether he can play in next weekends game against LSU.

Concussions are serious injuries which cause mild brain damages.  The exact type of damages can range from minimal to death. This spring Natasha Richardson died as a result of a seemingly innocent skiing accident due to a concussion.

Most times an Emergency Room is not going to look for a TBI unless the patient comes in comatose. Post concussive syndrome may show up in the days or weeks after the injury and common signs are changes in the ability to concentrate, think, remember or solve problems.  Because the only absolutely positive way to determine whether brain tissue has been damaged is by autopsy, the only practical way is to get a competent neuropychological exam.  Sophisticated exams like MRI's, SPECT, and PET scans are rarely helpful tools in diagnosing TBI.  They are very expensive and not widely accepted in the medical community. The types of injuries sustained by the brain are microscopic, not  usually detectible. So a jury looking at a normal MRI isn't going to be impressed.

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