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

There are a lot of attorneys in Florida.  According to the Florida Bar there are more than 90,000 of them  in Florida.  How do you know which one to hire for an accident injury case? The Bar association has leveled the playing field for you to a certain degree. 

1. It has passed rules which tell you that you have the right to get a Statement of Client's Rights before signing any contingency fee contract. This form is Mandatory.  It was prepared for use exclusively in contingency fee personal injury type cases.  So this is standard, just like all cars have 4 wheels.
2. The rates charged by accident injury attorneys are also standardized.  Just like the 4 wheels again. 
3. all lawyer advertising must be approved by the Bar. 

What is not standard?

• Ability of the attorney.  In Florida lawyers who are fresh out of law school, who have never been in any kind of case before, can legally handle first degree murder trials, crashes involving 18 wheelers, medical malpractice cases involving hospitals, and lousy doctors, public offerings, and other highly complex legal matters.  Some attorneys handle everything they can, while others limit their cases to a certain area.  Get one who limits his or her type of cases.  You would not want a general practice doctor to do heart surgery...Same thing with personal injury cases. There are attorneys in Flagler County who advertise themselves as Personal Injury attorneys who have ZILCH for experience.  Most prospective clients are afraid of offending the lawyer so don't even ask about trial experience.
• Budget. a lot of what goes for name recognition on TV, the internet, and everywhere in between depends on the size of the lawyers budget. Some TV lawyers spend millions of dollars and get lots of cases. Do you want to be another number on their shelf?
• Experience and judgment.  These two factors are important enough that I recommend questioning your prospective attorney about his experience in cases just like yours.  Has he been to trial?  What is the highest verdict he got?  How long ago?  Was he lead counsel on the other case?
• Accessibility:  I give my clients my personal cell number to call me. Other lawyers never even talk to their clients- they let their staff do it.  Legal issues cannot wait for days or weeks to be answered and you deserve the right to an answer from an attorney, not the paralegal who never went to law school.
• integrity:  A lawyer knows there is a lot of competition for cases like yours.  He should be honest with you in his evaluation of your claim.  He should not sugar coat your case so that you hire the lawyer with the biggest evaluation.  There are always potential defenses: two sides to the story.  His evaluation needs to make sense to you.
• Clarity:  This is very important.  You, the client, should be able to understand the  major legal arguments in favor and against your case.  If he cannot explain them to you in clear and understandable ways, maybe you should ask yourself, how is he going to do that for a jury?

Knowing how to hire an attorney is the first step in the successful completion of a legal fight.  I have 40+ years of experience and would be happy to discuss your case for free so you can make an informed decision.

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Drunk drivers cause a lot of accidents with injuries and death.  What are the steps taken by the criminal justice system to make them pay? Just because you were in a wreck does not automatically mean there will be DUI charges.

If you have been the victim of a drunk driver you should expect to have a conference with the State Attorney within a few weeks after the wreck.  He represents the State, not you, but might be able  to indirectly help you.  During the interview with the victim, the State Attorney will ask basic questions about the accident, and should also find out how seriously you were hurt.  If you have evidence to show him, bring it to the conference.  He will want copies of your hospital and doctors' bills, photographs of your injuries and some idea of your injuries.  If you have wage losses then let him know about them too.

Once the State Attorney hears all of the evidence he will make a decision about whether to charge the suspect with  DUI, or maybe reckless driving instead. The State Attorney will be getting toxicology information from the lab based on blood alcohol or other chemical tests done shortly after the wreck.  He will know for example whether the suspect has a bad driving record, including prior DUI arrests and convictions.

So how does this help the victim?  The state of Florida has adopted important victim's rights legislation which gives  victims of  crimes the right to know about all of the important stages of the criminal prosecution.  You might be able to get a suspect to agree to pay you restitution for the losses you have as part of any plea deal.  The State Attorney is not a collection agency for victims, but should be willing to at least keep you informed.  The victim has the right to go to the sentencing and tell the judge and the Defendant what he did to you, and how much it means for him to be sent away or pay restitution.

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It would be a miracle if each person who negligently or carelessly caused a bad accident with injuries had plenty of insurance.  But they don't.  Sometimes my clients get a settlement offer for the full amount of the insurance policy and want to do an asset search before deciding to accept the insurance and drop the claim.

There is a lot of bad information about asset searches.  From my experience, they are not worth the money, not accurate or reliable.  First of all they cost several hundreds of dollars.  The validity of the search is misleading.  Why:  Because the search leaves out a whole tun of stuff.  It is impossible to know if the Defendant has a big trust, bank accounts, or stock brokerage accounts, or jewelry.  Those types of assets are not public record.  Deeds to real estate can be found, but who knows where to look?  An asset search in Flagler County will not reveal deeds owned in Volusia County.

Getting the Defendant to sign an affidavit disclosing assets is also unreliable.  Even if they agree, how can you REALLY know the defendant is telling the complete truth?

Also, if you insist on finding out the true assets, it may take  a final judgment before you can get subpoenas issued to know what the defendant owns.  Getting a final judgment may take a year or two.  During that time you do not have the use of the settlement, and are stressing out over a trial.Is it really worh it?  Unless you are suing Donald Trump, I don't think so.

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I personally oppose a system of government which showers special interest groups with favors.  It is now abundantly clear that the Florida legislature, showered the doctors in Florida with favored treatment in 2003 when it enacted caps on damages in medical malpractice cases, based on bogus information from the American Medical Association.

What is a cap on damages?  A cap is a legislatively dictated maximum amount which can be granted by a court of law no matter what the jury says the damages are.  For instance, if a woman dies after delivering a healthy baby boy when the doctors butcher her insides and causes her  to bleed to death, a question comes up about how much her surviving son should get for the loss of his mom.  This very thing happened in the case of the Estate of McCall v US, when the mother died in 2006. The court awarded $2,000,000 in damages.  It was later reduced to $1,000,000 because of the cap which the legislature set in 2003.

How did the legislature justify the cap?  It based its decisiion on bad information supplied by the American Medical Association.  The AMA said  1) Florida was a "crisis" state and doctors were getting sued so much they were leaving to go somewhere else, and 2) average verdicts in Florida against doctors were so high that they could not get affordable malpractice insurance.

It should come as no surprise that both points were wrong:

• Accounting Office, No. GAO-04-124, Physician Workforce: Physician Supply Increased in Metropolitan and Nonmetropolitan Areas but Geographic Disparities Persisted (Oct. 2003), at 23, available at http://www.gao.gov/new.items/d04124.pdf (finding that, from 1991 to 2001, Florida's physician supply per 100,000 residents grew from 214 to 237 in metropolitan areas and from 98 to 117 in nonmetropolitan areas, or percentage increases of 11 and 19, respectively) 

• U.S. Dep't of Justice, Bureau of Justice Statistics, NCJ 216339, Medical Malpractice Insurance Claims in Seven States 2000-2004 (Mar. 2007), at 1, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/mmicss04.pdf (finding that nearly 43 percent of Florida medical malpractice insurance claims were closed with a payout of combined economic and noneconomic damages of less than $100,000, two-thirds under $250,000, and only 5.5 percent had a payout of more than $1 million).

In other words, there was not  a crisis to justify caps on medical malpractice verdicts in 2003. Shame on you legislators who take away peoples' rights and give favors to special interest groups like doctors.

The battle is not over.  The Florida Supreme Court has been asked to review the McCall case and the  statute and tell us if it is constitutional or not. 

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This week I helped settle a case for a client who was riding his bike home from the beach when he was hit head on by a little old lady too old to drive.  Her license was taken away two months before when the state of Florida DMV decided, after looking at her medical records, that she was impaired.  The state had been monitoring her medical records since 2004 when she was 86.  The accident happened in 2010 when she was 92, and had poor eyesight among other things.

This is the first time I had ever been in a case when the defendant was too old to drive.  I filed suit because she ignored my "Dear Defendant" letter. I found out she had an insurance policy and a little bird told me she was the beneficiary of a big trust.  I was suspicious about her driving ability  so I  subpoenaed her medical records.  I was amazed at what her doctors' were reporting.   One doctor was frustrated that she was still driving, and had sent her to a neurologist to check out her fainting spells.

Although it took five years to yank  her license, it was finally done.    In Florida a person who loses their license can file and appeal but she did not do so.  Problem was she continued to drive, and sadly, two months after losing her license,  caused a head on collision with my client.  He was on his bike.  Guess who won?  He almost lost an arm and a leg!

When a person who KNOWS they are subject to sudden temporary situations which make them unsafe drivers, they are guilty of gross negligence.  A person guilty of gross negligence like this little old lady can be subject to punitive damages on top of the medical bills, lost wages and pain and suffering.

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The jury verdict found Dr. Conrad Murray guilty of involuntary manslaughter in the Michael Jackson case.  I think the defense relied on the "Doctor" card, and the jury did not buy it.

In civil cases, when a doctor is charged with medical malpractice, the "doctor" card is a defense which says to the jury: " I am a Doctor.  I am really a wonderful person, and I help so many people.  How could I (a doctor) be guilty of hurting someone? "

The essence of this defense is that Doctors are not like us:  they are superhuman and do not make mistakes.  Society puts Doctors up on a pedestal, and adores them, giving them special privileges.  The laws of the State of Florida include a set of rules making it impossible to even sue a doctor unless another equally qualified doctor signs an affidavit claiming the first doctor was guilty of malpractice.  Regular people who are negligent don't get the same privilege.

So, my take is the Doctor card got Conrad Murray nowhere.  It makes me feel good when a jury does not buy defenses like that, and sees the truth.

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Can you talk to your lawyer?  This is a simple question.  Some of my clients who have unfortunately been in multiple accidents have used other law firms on other cases before hiring me.  In one such case,  a new client came to my office and when we sat down to meet with each other the first time she asked, " Are you an attorney?"   I laughed and said yes, but it was no laughing matter to her. 

She explained she had twice before been rear-ended and each time,  she got a TV law firm  in Orlando for one case, and a TV law firm in Port Orange for the other.   From beginning to end she  never met or even talked to her TV lawyers.  Both cases were settled  by the TV lawyer's staff and she was sent a check and that was it. 

In today's world some law firms have huge advertising budgets to pay for their TV, billboard, Yellow Pages, and other ads.  Some of the law firms who are prominent TV lawyers in central Florida spend almost $200,000 a month, and some up to $400,000 a month on advertising.  They get lots of business and hire lots of support staff to handle the files.  You have probably seen their ads. They are all over the place. The client I met said her centrai Florida  TV law firm sent an "investigator" to her home to "interview" her.  In fact, all the investigator did was get her to sign the firm's fee contract, and she never got to meet with or talk to her "lawyer.".

So when you need an accident injury lawyer, ask yourself if you want to be able to talk to him or her.  If so, then it might be a good idea to find out who will actually handle the legal part of your case before you sign the contract.  

As I say, I don't do Veterinary law:  I represent real people who need answers, not puppy dogs and kitty cats!

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Let's be honest with each other.  Clients do not know how good or bad their case is.  All they really know is what their lawyer tells them, and how hard their lawyer appears to be working for them. Personal injury lawyers compete for clients and sometimes the ones who hold out the highest promises get the client even though the case is weak or meritless.  In such cases the day of reckoning comes when the jury returns a Verdict much smaller than the client was led to expect, or is given a small offer at mediation. The result is an angry client who feels like his lawyer lied to him, and makes for bad feelings against the legal profession in general.

I do not believe it is in my client's best interest to candy coat their cases.  As I said in an earlier Blog I do not believe in Veterinary law:  my clients are human beings (not kitty cats or puppy dogs) and deserve to know what the law is and how it is likely to impact their futures.  They deserve to get candor, honesty, and hard work.  Not inflated evaluations, guesses and a legal mill.

It has been my experience that clients do not always want to hear the truth about their cases.  When that happens, they are sometimes in a state of denial and do not like it when their lawyer is "up front" about their cases.  They have the right to change lawyers and often do, thinking another lawyer who has higher expectations is likely to get a larger verdict or settlement. Lawyers owe a duty to their client to fight hard for their rights. Being candid about the real facts is a two edged sword:  on the one hand they can't make exorbitant promises, and then after the client is aboard, force the client to settle for peanuts.

So, when you are asking for an evaluation of your case, ask your lawyer what his experience with cases like yours has been, whether he has actually tried cases like yours and what the downside really is. You are paying for his advice and experience, not BS.

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Most cases settle without going to court.  If you are afraid of "going to court" you can make that crystal clear to your attorney and he will honor your request, Most of the time.  Why can't  he guarantee you that you won't go to court? 

If you have the kind of case that is under an approaching deadline due to a  statute of limitations and your lawyer may be forced to file a suit or your claim will be barred.  Then you lawyer  would be guilty of legal malpractice. 

Most of the time I meet a new client and discuss the case.  It is obvious from the facts that the case should not go to court. What makes it obvious?  Here are some situations:

1. The loss is so big and the amount of insurance is so low that the insurance company will pay up.
2. The case is so weak and the injuries are so small that the case does not merit the time and effort.
3. The client does not want to go to court.  If the statute of limitations is just around the corner I will not take that kind of case.

Insurance companies hire adjusters who specialize in settling accident injury cases.  Their job is to get you to settle a case for as little as possible.  They know what the case is worth.  Although there is no market price most skilled attorneys know what the likely settlement range will be.  There are lots of  "wanna be" personal injury trial lawyers who advertise that they are skilled.  Be sure to ask them when they had their last trial.  I've had 2 this year and a third coming up soon. 

Sometimes it makes a huge difference if your lawyer files a lawsuit.  Please don't be shy about asking me or another experienced civil trial attorney what the pros and cons are before you make up your mind.  Florida gives the client the final say on whether to settle or go to court.

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 Some of my clients have learned legal lessons the hard way.  They have been denied benefits they were rightfully entitled to, or received significantly smaller awards because of avoidable mistakes.  Here are some things they did wrong:

1.  Some waited for years before getting legal advice.  They said they did not know if they had a claim and did not think to ask.  They did not want to be seen as "the type of person" who sues. As a result they blew their right to Medical Payments coverage, witnesses disappeared, and medical records were not kept to document their pain and other losses.

2.  Some did not tell their doctors about the accident which caused them to get hurt.  So, the doctors records do not back up the claim.  Or, they minimized their pain to please their doctor, and the doctor wrote weak reports.

3.  They quit treating with their doctor, or failed to follow his or her medical advice.  Gaps in treatment are rightfully seen as  "I'm not hurt".  Same thing with not following their advice.

4.  They gave statements  to  insurance adjusters because they did not know any better.

5.  They retained another law firm which was unqualified..  They were in the hands of a secretary who had no license to practice law and was overworked with hundreds of files. They finally got fed up and left wasting months or years of time.

6.  They took their cars to the body shop and got them fixed without ever taking photos of the damages, or worse:  their cars were totaled and then towed away to car heaven, where they were chopped into small pieces of metal.

7.  They signed a release for peanuts.

8.  They lost the names and contact information for witnesses.

I am sure there are other mistakes I could list.  Maybe my 40 years of experience will help you avoid mistakes which would hurt your claims.

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Do I have a case?  Should I call an attorney?  Is there a checklist to know if I should call?  Yesterday I met Lola who wanted to know if there was a simple checklist so she  could tell if she had a legitimate case.    She had heard that there is a lot of fraud going on, and her friend Bonnie said she had heard of staged accidents.  She said an Allstate adjuster told her they are mostly in south Florida where some lawyers, doctors and paid actors intentionally stage car accidents and then got settlements for these fake accidents.

Bonnie did not want to be accused of fraud, and so she wanted a checklist.  I told her about the three legged stool test.  Without all three legs the stool falls over, you can't sit on it.  Same thing with a legitimate accident injury case. 

• There has to be a serious injury.  This  leg is called damages, and usually has to be permanent, meaning just that: for the rest of your life this will be a problem; Injuries are documented by medical records, xrays, and photographs;
• There has to be fault.  Think in terms of avoidable accident.  Did the at fault person run a red light, fail to look, or pass in a no passing zone?  This leg is called liability.  Fault also can be intentional where the injury was caused because the actor wanted to inflict injury. I seldom take cases involving intentional harm because insurance companies do not cover such incidents, which brings us to the last leg;
• The last leg is insurance.  Personally I will not take a case unless there will be a good likelihood of a reasonable recovery from an insurance company when the case is settled. I charge a percentage of the recovery as my "contingency fee."  Insurance laws will not allow the jury to be told that the "little old lady" who caused the accident has insurance, so it is a little confusing.  Insurance companies like it that way.

So there is a short easy checklist.  I do not charge a consultation fee for discussing possible cases and welcome serious inquiries.

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This week the Tennessee legislature passed by a comfortable margin another law.  This new law is another step taken by government which lops off by big chunks the right to the pursuit of happiness.  Our forefathers called this right "inalienable" meaning it could not be sold or taken away. 

The new law is a windfall to the Insurance industry which will now have to pay less damages when its clients wreck havoc in Tennessee.  It caps out the maximum amount an injured victim can get in severe cases where there is paralysis, blindness, and amputations, and maxes out the punitive damages at a measely $500,000 no matter how bad the wrongdoing was:  think drunk drivers, and mass toxic tort polluters.

Why should we care down here in Florida?  Because laws like this are like weeds in the garden.  They grow and encourage other legislatures to sponsor similar rules here.  And guess what?  This immensely successful movement to take away your rights is wildly popular among a lot of people who think it will reduce insurance costs.  WRONG!!! Insurance companies have been shown time and again to not be passing on any savings to their customers.

Lawyers like me have been telling the public like you for years that TORT REFORM is a hoax.  Big media and the PR engines of the largest companies, like big tobacco, have won.  The battle is over.  This is an easy sell to most uninformed Americans.  I know because I have seen it first hand during Voir Dire. 

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We all know that Thomas Jefferson wrote the Declaration of Independence.  It was unanimously adopted by the United States Congress in 1776.  It declared that all men are entitled to certain inalienable rights, and among these are the rights to life, liberty and the pursuit of happiness.

Skip ahead two hundred thirty five years to 2011.   Ask yourself whether  your  fellow countrymen still believe in these rights.  I  suggest these "inalienable rights"   are being lost in our courtrooms across the USA.  How can that be? How can they be lost in the courtroom, of all places, where  Juries guard our precious rights? How can this happen?

An insidious, long term corporate attack started decades ago, in the early 1980's.  It was called TORT REFORM.  SInce then it has undergone some name changes, such as lawsuit abuse, and is sponsored by such high sounding  names at the AMERICAN TORT REFORM ASSOCIATION.  Their mission: to persuade millions of Americans, many of whom will become jurors in civil cases, that it is "unAmerican" to compensate an injured person with money for the loss of their ability to pursue happiness due to severe pain and suffering.  The movement has been very successful. It has resulted in thousands of jury trials at which our fellow citizens have been denied compensation for the loss of the pursuit of happiness. Who would support such a thing? Who could possibly refuse REFORM of any kind?

Insurance companies, tobacco companies, polluters, manufacturers of dangerous and defective products, the automotive industry, doctors, and others, to name a few.  Also, because it is thought that most trial lawyers are democrats, Republican leaders like Bush and Reagan jumped on the bandwagon.  It became a Republican message to sponsor tort reform.  Doctors and big money rallied to the cause and continue to do so.  Everyone has heard of greedy trial lawyers, and the McDonald coffee case, runaway juries, and million dollar awards.  It is urban myth. 

Think of it:  if a person is in such pain that they cannot pursue happiness, what is the right to pursue happiness worth?  Nothing. And the ONLY METHOD TO ENFORCE THE RIGHT IS BEFORE A JURY.   And that is exactly what jurors are giving severely crippled, blinded, deafened and handicapped people for their lifetime of pain and suffering.      Nada, Nothing, and  Zippo.  Becuase they think it is the American thing to do.

The next time you are called for civil jury service keep in mind that if a jury won't award an American dime for the loss of the pursuit of happiness, you have corporate America and the Republican party to thank.

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When it comes time to get a negligence case settled, nothing is more important than good medical records.  And writing good medical records falls solely within the province of the client's treating doctors. I have been disappointed with the failure of some of the treating physicians in my community to properly document their files.  I have even gone so far as offering to meet and explain (at my expense) what should be in the records, and have been blown off.  The doctor in question had his lawyer call and tell me he did not want to talk to me either in person or by phone.  So, my client's case took a hit.  The bottom line was much smaller than if the doctor had done a half way decent job.

What do I look for in a decent final report:

1.  That the patient is discharged with or without a "permanent impairment."  A permanent impairment is medical talk meaning the patient now has a permanent handicap of some sort due to the accident.

2. That the patient has or  has not got any permanent restrictions or limitations due to the accident.  For example, I have a client who had a rotator cuff injury and two surgeries to repair it.  He can no longer lift more than 5 lbs., or use his arm repetitively, or lift it above his head. 

3.  The projected cost of future medical care, the type of care, and frequency.  Such as an MRI once a year, future  epidural injections, pain meds, and blood tests to check the patient's liver to see if they are being damaged by pain pills or other medications that are prescribed.

4.  A medical decision correlating the treatment to the accident, or deciding it is not related.  I recently asked for such a decision from an orthopedic surgeon, and he sent me a letter saying "maybe" it is related.  Big Deal.  Maybe it is not.  The letter will be useless in convincing the adjuster his insured caused the injury.

5.  Last but not least, a fair comment on the level of "discomfort" (PAIN) which the client has reported to the doctor.  I need the doctor to honestly report what the patient is really saying, not just that he thinks surgery or treatment was a "success."

I practice in a small community and there is really not a lot of choices locally, but a short drive to another nearby city makes it possible to  get a better doctor.  If they can make the trip it enables them  to see doctors who are not only competent in the medical side, but also, and just as important, competent in writing good final reports.  An experienced Personal Injury lawyer learns who they are and can direct clients to the good docs as part of his advice.  I think some doctors are introverted and afraid of going to court and just don't care about the legal side of the medical treatment.

That's too bad, because medical ethics mandate a doctor to stand up as a medical witness to help lay people (like jurors or adjusters) understand what the patient has gone through and will be going through.  It is unethical in my opinion to dodge that by poor report writing.

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I have been amazed at how many of my clients are late bloomers.  They were all in accidents and it took them a long time to come see a lawyer.  One of them came in for the first time 44 months after their accident, and had hardly seen a doctor.  Another was in a roll over accident on I-95 and had not seen an attorney for 11 months.  Because of their lack of understanding of Florida no-fault law, they did not promptly apply for benefits and had both "gone without" necessary medical care.  So much for the lawsuit crisis.

So maybe a checklist may be helpful to you so you can understand what makes a good auto accident case.

1. Promptly report the accident to your insurance company and ask them to open a claim file for you.  This enables you to get PIP benefits which will pay for the doctor of your choice. 

2.  Start treating with a good doctor and follow his advice.  Do not skip appointments or create gaps in your care. 

3.  Keep a journal for your lawyer about your problems.  It's human nature to forget some of the aggravation and inconvenience you have to go through.  One of my clients had 107 trips to the therapist, about 1,300 miles of driving.  That's enough to drive to Maine from Florida.

4.  Take pictures of your injuries and your car, before the injuries heal or the car gets fixed.  Insurance companies take photos but will not share with you.

5.  Do not discuss your case with anyone but your lawyer.  One of my clients smartly figured out that a new acquaintance was really a private detective hired by the insurance company.

6.  Florida law requires a serious injury, defined by statute as a significant scar, death or permanent injury, to have a claim for loss of the important damages:  quality of life losses, like the inability to have fun because of pain, headaches, or physical restrictions from the accident.  Medical bills and loss of income are recoverable even without a permanent injury.

7.  Clear causation is a must. This means that the doctor must agree in writing that your injuries are due to the accident.  This is easier said than done.  Some local doctors are not used to having to tie a car accident to an injury and may be unwilling to cooperate with your lawyer.  I had a client who suffered a heart attack at the scene of an accident and her doctor was reluctant to blame the crash for her heart attack.

So I hope to see you sooner than later!  Delays in treatment are likely going to prolong the pain and complicate resolution of an injury claim. 

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This important question is at the top of every client's list.  News  of multi-million dollar verdicts offer little or no explanation of how the jury was able to come up with huge amounts.  People watching or reading get the impression that juries are out of control, and that plaintiffs are getting rich on flimsy cases.  People think their insurance premiums are skyrocketing based on ridiculous juries and their greedy trial lawyers, or lazy judges.  There is a legal system and Courts all over the land know there are maximum amounts of damages which juries can award.  Too bad the Media doesn't know.

It will come as a surprise that the Code of Hammurabi, an ancient Code from Babylon, set the first limits on retribution.    At Code section 196 we find the famous "eye for an eye" quote. "If a man put out the eye of another, his eye shall be put out."   From that time on damages had to be equal to what was taken away: an eye for an eye.  The injured person gets back what was taken away.  Since the award is for a whole lifetime of problems he gets compensated for those problems now instead of coming back every couple of years for more.

The Florida  Model Verdict form defines the 3 types of damages you can get into 1) past and future medical bills, 2) past and future lost income or wages, and 3) quality of life losses for the past and future.  For example if a person has been injured and can't work, has to have surgery, and will never be able to use their right arm again for the next 30 years, all of the fact are given to a jury and the jury literally fills in the blanks of a Verdict form.

If the Verdict form is filled in wrong, with too little or too much money, the Lawyers get to argue to the Judge why it needs to be fixed, and the Court has the discretion to adjust the award up or down. If not done correctly there can be an appeal.

So the next time you hear about a large damages award, you will know the Jury and the Court were just filling in the blanks and doing their  duty.  Shame on the media for not telling you the back story.

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 I got a call this week from a woman who had been in a car accident two years ago.  She just started seeing a doctor for her injuries, and wanted to know if it was too late to do anything.  This was a good question.  I see people who for some reason or another  wait for a long time to see a doctor and a lawyer.

First, let me tell you the good news.   Florida has a 4 year statute of limitations for negligence cases which applies in motor vehicle accidents.  Different states have shorter statutes so if the accident happened out of Florida it may be a good idea to check with a lawyer from that state.  The statute of limitations means the Complaint  must be officially filed with the Clerk of Court before the 4th anniversary of the accident or it will be barred.  All potential defendants must be named at that time or they will be off the legal hook. There is a 2 year period for negligence claims against doctors and other professionals.

Now the bad news.  By waiting to start medical treatment and report her claim via a Personal Injury lawyer, the injured person creates a defense: the defendant will probably defend on the basis that some other incident is the true, likely cause of the injury.  This is called Proximate Cause.  It is the legal link between the accident and the damages.  This concept means the Plaintiff must show the cause and effect tie between the accident and the injuries.  Medical records can help supply the documentation for an injury.  Like Emergency Room records, like the doctors'  office notes, and pharmacy records.  

If the case involves a phantom driver who caused the accident and then disappeared, most UM (uninsured motorists) insurance policies require their insured to report the claim within 30 days.

I have experience handling these types of cases.  I strongly recommend that you protect your legal rights by seeing a doctor and a Personal Injury attorney soon after the accident.  

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Some attorneys concentrate on the Debtors' alleged  default to win a case.  There is a  whole new way to win.   Last year I wrote an article here about a Foreclosure defense based on MERS.  Today I am widening the scope a little to focus on another problem (there are many) which could help those in foreclosure trouble.  It will take a little patience and technical information to understand so bear with me.

When a mortgage loan is closed there are 2 critical documents signed by the borrower.  One is the NOTE and the other is a MORTGAGE.  It is hard to believe but the NOTE is really just a simple IOU form which unconditionally promises to pay a certain amount of money to the ORDER of the lender. Over the centuries this IOU became to be known as a Negotiable Instrument.  Most people know about common every day negotiable instruments called "Checks."   Checks and promissory notes are the two best known and used  negotiable instruments around.

 Well, the law says when a NOTE  payable to ORDER is sold to another BANK it must be signed  on the back by the first bank to transfer (negotiate), just like a check.  No signature: no transfer.    These laws are part of a law code called the UCC, which stands for the UNIFORM COMMERCIAL CODE. All 50 states have the UCC, and some have querky little rules like New York.  Under New York's version, when the backside of the original NOTE is so full of endorsements that here is no more room for another endorsement, then an ALLONGE can be permanently affixed to it so there is more space to sign an endorsement.  Not all states require the allonge to be permanenlty attached.  Anyway the signature transferring ownership is called an endorsement.  If there is no endorsement, the new Bank can demand the selling bank endorse it, but cannot sue the original maker. if there are some endorsements, but none naming the current Bank, then it can't sue.  Even if the note is not lost, it must be correctly endorsed to name the current Plaintiff or the Plaintiff's principal.  

 VOILA!  There  in a nutshell  is an explanation to the defense to 99.99% of all foreclosures.   When the Real Estate Boom was flying high, the banks "electronically" signed the back of the NOTES but did not actually sign the original note.  That was a BIG MISTAKE.  The tall building lawyers must have been so giddy with all the fees they were making that they forgot about the need for an actual endorsement. The bank bringing the suit does not have the necessary endorsements from those prior banks on the back of the NOTE.  An electronic endorsement is no good on a NOTE. Add to this the admission by the Florida Bankers  Association that they decided to destroy promissory NOTES right after they were digitally scanned because they were afraid having paper NOTES laying around, they could get LOST.  DUH!  

So this new defense is popping up around the USA and is based on a simple fact:  the paperwork is so messed up that the banks cannot tell who the rightful owners of these NOTES really are, and without that, there is no right to foreclose.  

So, before you throw in the towel, pass this tidbit of info along to your foreclosure lawyer and make him read it!  Good LUCK. 

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I got a call this week from a mother who was so grief stricken about the death of her only son that she could not bear to discuss it for more than a year.  Turns out her son died of a drug overdose in July 2009 and was 32 years old, single and without kids.  She claimed his doctor, a pain specialist in Orlando, was an enabler, and  knew he had a problem handling drugs, but continued to give him prescriptions for oxycontin.  When he died she found lots of prescription bottles around his apartment.

She asked me: "Can you go after his doctor?"  No, I answered.  You see under Florida law,  a doctor cannot be sued for medical malpractice when the decedent (her son) was over the age of 25 (he was 32) and the decedent had no surviving spouse (he was single) and had no children.  

Everyone knows that a parents love for a child never ends, even when they grow up and establish their own families.  In today's world lots of kids are coming back home after college and moving in again with Mom and Dad.  Makes no difference.  If the child is over 25 there is no grief claim against the doctor for his/her medical negligence.  Strangely, if the doctor ran a red light and killed her son, she would have a claim for wrongful death due to the car accident.

This law has been on the books for over 10 years and is a perfect example of a querky law favoring a highly paid special group of people who have convinced the Florida legislature they need protection from frivolous lawsuits when parents sue doctors who kill their kids.  Bottom line, I had to tell her there was no basis for a claim.  

The story of Michael Jackson's death is very reminiscent of this local small time tragedy. Politics is a dirty business, and this law is a good example of special interest politics at its worst.

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 I met a new client last week who wondered how her bills would get paid and if she  would  have to pay one-third of her PIP benefits to me for attorneys for fees.  

I have some great news for you.  Florida law requires what is known as Personal Injury Protection (PIP).  It is a mandatory part of every auto policy.  As the insured you have the right to choose how to spend your PIP.  PIP can  be used to pay accident related injuries or your lost wages of up to  $10,000. It allows you to pick the doctor  of your choice.  It allows you to use the benefits for cleaning your house or yard work if your doctor says you cannot do those things.  If you have Medical Payments (MedPay) coverage on top of the PIP,  it will also pay another $5,000 towards medical bills.

 I told her I do not charge a fee on her PIP and Medpay  benefits.  Let me repeat:   I do not charge a  1/3rd cut of the $10,000 in PIP benefits or $5,000 in Medpay coverage.  I do not deduct anything at all from PIP coverage and Medpay coverage when I handle your file.  

Some clients do not have major medical and Medicaid pays their bills above the PIP.  Medicaid has a lien and is entitled to get its money back from any liability settlement.  It takes months to get Medicaid to tell me how much it is owed so I start early getting its information.

Some clients have major medical insurance on top of their PIP.  If medical bills are high enough to use up all of their PIP insurance then the major medical kicks in.  

After discussing this with her she was glad to know what would be paid by PIP and Medpay, and that I do not charge a 1/3rd fee for getting those benefits paid.   

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There was a story about Tilikum, a captive orca at Sea World in Orlando.  It apparently grabbed onto an experienced trainer and dove with her to the bottom of the tank where it drowned the trainer yesterday.  It reminded me of the story about the  pet chimpanzee which went bezerk last year and ripped the hands and face off a woman who stopped by to visit.  No one really knows why wild animals react the way they do, and their behavior is unpredictable.  A couple of years ago in Las Vegas a seemingly "friendly"  seven year old tiger attacked Roy Horn during a show.  That case was closed without ever finding out what caused the attack.  I predict the Killer whale investigation by OSHA will end the same way: no explanation.

When elephants attack in the wild, those types of things are not big news, nor should they be.  Elephants in the wild are expected to attack if someone threatens their baby.

The law imposes strict liability on the owner of  wild animals.  This means that the owner is absolutely responsible, without question, for the acts of the wild animal.  A judge made the law after a series of cases in England where wild circus animals escaped and wrecked havoc on the public.  This is a great example of what is called the "common law" since it did not have legislative origins.  The surving spouse of Dawn Brancheau will be entitled to about $150,000 in workers comp death benefits since the accident happened at work. 

One thing OSHA will be looking into is evidence of prior claims.  Has this type of thing ever happened before?  If so, what is the significance of the prior claims in this case?  We know from early news reports that Tilikum (which is a nickname for native indian villages in the Seattle area) has had two other incidents over the years.  There is speculation that the Orca was stressed out by years of captivity in a small tank, or was suffering from elvated testosterone levels.  It has fathered at least seven other orcas over the years.

What is interesting to me is the fact that our legal system has precedent for all sorts of crazy things that goes back hundreds of years.  Who would have thought that?

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When a worker is  injured by another negligent person  he can sometimes make two claims: one is a negligence claim and the other is a claim for his worker's compensation benefits.  If the negligent person and the injured person work for the same company  there is only one claim, for worker's compensation.  So the question is: was the negligent person a fellow employee.  If not a fellow employee then the injured person (or his surviving widow and kids)  probably has two claims. Clearly, an employee injured by a materialman delivering materials to the job, or a materialman delivering materials who is injured due to a dangerous condition at the job can make a claim.  See Adams Homes of Northwest Florida v Cranfill, 7 So.3rd 611 (Fla. 5th DCA 2009.) If an injured worker was a delivery person for  for Pizza Hut and gets smacked down by a drunk driver, he can sue the drunk driver and make a claim for work comp benefits.  However, when two claims are made, the injured person cannot get a double recovery.  The pizza driver cannot recovery twice for the same claim, so what happens?

• he gets to file a claim against the drunk driver  AND 
• a claim against his worker's comp. The worker's comp company  get's a lien against his case.
• If there are $25,000 in medical bills and wage losses advanced by his worker's comp carrier, then a share of the total bills paid by  worker's compensation comes out of his settlement with the insurance company for the drunk driver. This right of reimbursement helps keep down the high cost of worker's comp.

There is a misunderstanding about what you can get if there are two claims, so let me explain this way.  Assume the losses are as follows:

1. wage losses
2. medical bills
3. pain and suffering
4. loss of enjoyment of life
5. mental anguish

Of the losses listed only items 1 and 2 are covered by worker's compensation.  If it is a death case, then the survivor's get loss of support, and their pain and suffering for the loss of the loved one, plus funeral and medical bills.  Worker's comp pays a max of $150,000 for a death claim.

Yesterday there was a story about a  tragic accident at the site of the new Epic movie theater under construction in Palm Coast.  The news reports indicate the worker who died was a welder working for a welding company out of Palatka who fell 25 feet to his death.  Details were not provided. The accident is probably still under investigation by OSHA.  As an example, if the deceased in that accident was negligently killed due to the fault of another trade, such as the scaffolding company or the crane operator, the  deceased's family would have a wrongful death claim against them. If the accident happened because the welder was not provided with safety gear to prevent his fall, then his employer would be at fault but IMMUNE from a lawsuit if it provides worker's comp benefits.

Death benefits are part of Worker's comp.  It pays $150,000 in death benefits plus up to $7,500 for funeral bills.   There is a brief description about this here. That is a small price to pay for the life of a 40 year old worker.  A death claim could result in a much larger recovery for his surviving family members.  Because the $150,000 gets doled out over a long period of time, and is not a part of his estate, it cannot be levied against or garnished by any debtors the deceased may have had.  So a bank could not go after the proceeds from the worker's comp payout to payoff a mortgage debt.

The lesson here is that there are extra legal rights in certain types of cases, including worker's comp cases.  It pays to know your rights. It pays to know an experienced lawyer.

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Cell phones are easy to turn off and on. They should be inaccessible  when we drive.

Distractions cause accidents no matter where they occur. They can and do happen in hospitals, cruise ships, airports and airplanes, the workplace, grocery stores, baseball parks, golf courses, I-95 or at home. Distractions are just the latest example of  our human frailties and cannot be eliminated by passing a few laws. If you aren’t paying attention and push a grocery cart into a customer while you are on the cell phone that’s negligence. Same thing if you run your car into someone while you are on the cell phone. 

 Lots of things happen in cars: Some people eat, drink, talk, put on makeup, read books or  maps, listen to MP3s, radios, watch DVDs, and talk and text with a cell phone. When we drive with passengers, the number of sources of possible distractions goes up. Drivers are tempted to turn and look at their faces, laugh, and carry on.    We have all seen drivers putting on makeup, reading books, or shaving while driving on the interstate. What’s the first thing you do when you get behind the wheel: buckle up or turn on the radio, put on your makeup, drink your coffee? No problemo if we are passengers. The burden is on the driver since he/she controls the vehicle.  We forbid driver’s to drink and drive . Should we also forbid drivers to use a cell phone and drive? Maybe. Depends on the circumstances . The Driver  must take steps to avoid distractions because a few lost seconds can change  a life.

 Legislators are now coping with a new major source of distraction: cell phones. They go everywhere people are. The phone rings or a text message arrives no matter what we are doing or where we are, unless the phone is left behind or turned off. No one wants to do that. How would you like it if a surgeon answered his cell phone during surgery? Is a legislative rule banning texting during surgery necessary? Duh, I don’t think so. 

 So, cell phones are a major new source of distraction. That cannot be denied. There has been a tremendous amount of publicity concerning Texting and driving. The Florida legislature recently banned drivers of school buses and trucks from texting based on claims that texting was just as likely to cause an accident while driving as is alcohol impairment. Other states have followed too. Others think all cell phones should be banned from being used unless they are being used  hands free. These behaviors were not part of our world when cars were invented, and we are as a society now facing a new legal issue which was not around a generation ago.

 I am skeptical that any legislature can, even with huge fines, change human behavior. So, the answer is simple: Come on People: Control your impulse to talk and drive. Turn that cell phone off until the drive is over.

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I recently published  an article concerning the MERS Foreclosure defense.As a follow-up,  this article will discuss the situation where a lender has successfully foreclosed and the borrower is  now concerned about a possible deficiency judgment.  As you know a deficiency occurs when the collateral (a vacant lot, condo, home)  is sold at the Clerk's sale and the sales price is not high enough to pay in full the balance due to the lender.

Keep in mind the deficiency issue is one of collectibility.  The bank can sue the borrower for the deficiency but will have trouble collecting on it unless there are assets.  If there are no assets, its like the Bob Dylan song:  "If you ain't got nothing, you got nothing to lose." Homestead is exempt from a forced sale unless there is a mortgage on it to the lender.

So here are some common questions concerning deficiency judgments.

• For how long after the foreclosure sale does the Bank have a right to decide to go after a deficiency?  Florida cases say that depends.  If the foreclosure sale judgment reserves jurisdiction allowing the court to decide whether to grant a deficiency, then the Bank has one year to come back and ask for the Deficiency Judgment.  If the bank does not do so, the debtor can ask for the case to be dismissed for lack of prosecution. If the foreclosure sale judgment does not reserve jurisdiction the Bank has 5 years from the date of the judgment to start a new case for a deficiency judgment.
• How does homestead property  matter? Depends.  If the homestead property is a new home and the bank has no lien on it then it is exempt under Florida's homestead protection. So even if the bank has an uncollected deficieny judgment  then it is not subject to a forced sale.    The bank can sue the debtor whether he lives in a  homestead or not, but the Bank cannot collect against the homestead unless it has a mortgage.  The easiest way to undertand this is unless the Debtor has waived his right of homestead (which is what a morgage does) then he has homestead protection from debt collection as to that asset.
• What does a Bankruptcy do?  This is a complicated issue which I will leave to a bankruptcy specialist like Scott Spradley in Flagler Beach.  If the debtor files bankruptcy is wipes out all debts inculding deficiency judgments.

Besides the issue of deficiency judgments and collection, there are issues about asset protection, short sales, deeds in lieu of foreclosure, and the tax consequences of a short sale.   An interesting fact I read lately was that between 2000 and 2007 the size of the national mortgage debt on homes in the USA went to 10.5 trillion dollars from $3.5 trillion.  So far, since 2007, the mortgage debt has only gone down to $10.2 trillion.  Somehow we have got to get rid of about $7 trillion in mortgage debt before the housing crisis will be behind us.

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For those who need some legal help but cannot afford to hire a lawyer to represent them, it might be worth while to think about “Doing it Yourself.” Or maybe part of it yourself. There was an story about this in the New York Times recently. This sort of idea may be helpful in many different types of cases, such as divorce or landlord-tenant disputes.    Since I specialize in Personal Injury, this blog will discuss the needs of a client who wants a lawyer to help on part of the case, for example getting it settled.  I call this a la carte legal representation.

The Florida Bar Association allows attorneys to ethically handle legal matters on a limited scope  basis.  See the  Rule 4-1.2 (c). 

How would it work?

•  “Limited scope representation” allows lawyers to unbundle their services and take only part of the case.  
•  Lay persons know they have a tremendous disadvantage due to huge knowledge gaps between themselves and insurance adjusters.  Would it be worth 10% of the settlement for legal representation from an experienced personal injury attorney to be sure you did not settle too cheap? I think so. 
• The lawyer can conduct a conference with the client and agree to do limited work for a much lower fee than if he handled the entire case. The client can collect copies of all the medical records, bills, photographs and accident report. He can provide a summary of  what he has been through.  He can assemble them for the attorney, thus saving himself fees for substantial overhead, time and expense. 
• More than ninety percent of all cases settle for less than $25,000 and in some personal injury law firms the lawyer’s paralegal handles the case anyway. 

Makes sense to me. The quality of the work would be as high as if the attorney handled the whole case.

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You hear people discussing their settlements, but no one really tells you what that is.  Wouldn't it be helpful to know what a Settlement really means?  Here you go:

A settlement is the term used to wrap up in a legal way the end of some dispute.  It is an agreement between two or more disputing persons to finalize the dispute.  Usually the main terms of the settlement are agreed upon in writing.  The written agreement is a new contract which can be enforced by the court.   If the case is in Court, there is a popular method of coming to an agreed settlement called a Mediation.  A Mediation is a formal settlement conference where all sides to the dispute discuss possible terms to settle the disputes.  Although the Court can force attendance at a Mediation conference, the Court cannot force the disputing parties to settle.  That is a voluntary thing.

Settlements are often complicated due to the need to payoff subrogation liens.  These are claims against the settlement by health insurance companies,  worker's compensation companies  or medicaid or medicare for money they paid for doctor's bills and wages.  These liens have to be paid out of the settlement. Insurance companies will ASK for 100% payback of all money they have paid. Most of the time they only get a fraction of their money.  If the lien is an ERISA, or Medicaid lien, then 100% of the money may have to be paid to the ERISA carrier.  An attorney who is on the ball can discuss ERISA and Medicaid issues with you so you can understand their claim.

In a personal injury case, for example, the person making the claim (plaintiff) agrees to sign off on a Release, in exchange for an agreed amount of money, paid at the closing of the deal.  Once the Release is signed, and the money changes hands, the Plaintiff's claims are by law extinguished, cancelled, unenforceable in a Court of law.  If a lawsuit has been filed with a Court, the attorneys send a written notice to the Court advising the case is over with, and the Court then closes the file. Usually the terms of a settlement say whether each side will bear the fees and court costs or whether one side will payoff the other side's fees and costs.

Claims for minors, and those who have a legal disability due to mental illness, for example, cannot be settled until the Court officially approves the terms of the settlement.  If the Court has any questions, it can appoint experts to offer the court advice on whether the settlement is in the best interests of the child or other incompetent person.   Even though no suit has been filed, minors claims for large amounts of money require court approval.  In cases where that has not happened a "friendly suit" is filed.  The court then goes through the terms of the settlement, and if it approves the tentative settlement, the minor's legal representative blessed with Court approval, signs the Release, the Defendant's pay the settlement amount  and the case is dismissed.

At  trial none of these liens are supposed to be discussed in the presence of the Jury.  Rules of Evidence prohibit discussion of these liens or settlement offers with the jury.  For example, if a lien is $50,000, then the Plaintiff's attorney should ask the Jury for a large enough Verdict to be sure there is money to pay off these liens.   If the Jury learns about  pending liens it results in a mistrial, and the case has to be submitted to a new jury.  Because of the high cost of mistrials and other reasons, settlements are a good way to limit the uncertainty of litigation.

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Occasionally I am asked by clients and prospective clients about the costs and expenses of hiring a lawyer to handle their cases for injuries.  It seems like this question is coming up more often now than it ever used to. It's a good question and a timely one too.  Clients have a right to know in advance what it might cost them,  especially in today's troubled economy.  Also, clients are scared of frivolous cases and do not want to be accused of a frivolous lawsuit. No one likes sticker shock, and personal injury clients are no exception. Florida Supreme court rules control Florida lawyer's contingency fee contracts. Unlike a straight hourly rate fee contract, or a lump sum contract where fees are paid on a negotiated hourly rate or flat rate basis, clients who hire lawyers on a contingency fee only pay FEES if the contingency (winning the case) occurs.

So let me discuss fees and costs this way: 

•  Before suit:  there is no significant Adverse Consequence to the client financially.  The client is not in any jeopardy of having to pay court costs, a final judgment, go to court, give a deposition, submit to a medical exam, produce confidential records, or in any other way submit to an unwanted intrusion or expense.  A claim is not frivolous until a jury decides against it.  So there is no specter of criticism for such claims. If you don't make a claim you don't get any money and there is no risk. 
• After suit: Our work is usually divided into two stages:  presuit and suit.  During the presuit stage (out of court) we investigate each case, and then often try with the client’s permission to settle the case before filing suit. The second stage (in court) is the part which has “adverse consequences” if a suit is lost.  To avoid any risk clients often decide to settle without filing a suit.  Under our documents, the client has the last say about whether to accept or decline any settlement offers by the at fault party, and the client controls the decision to sue or not sue.  Our fees go up after suit is filed, and although some of the court costs are recoverable, not all expenses we incur must be reimbursed by the defense.  For example, our travel expenses are not subject to reimbursement.    

              The “adverse consequences” of losing a suit are as follows:

  1.         The verdict may be lower than the defendant’s highest offer.  At trial there may be no recovery, or the net recovery after fees and court costs and other expenses may be less than any highest final presuit offer.

              For example if the highest presuit offer to you by the insurance company is $100,000 and you rejected it, the final verdict after trial might only be $80,000.

  2.         There may be a cost judgment against the client, including substantial defense attorney’s fees.  Florida has adopted a law that mandates assessment of attorney’s fees against a losing party if the verdict is substantially (more than 25%) different than the last offer before trial. 

              For example, if you were offered a settlement of $100,000 and decided to reject the offer, and a verdict for $75,000 or less was returned, then the Court would assess the defense fees against you. Those would come out of the $75,000 so your net before paying your own attorney's fees would be a lot less than if you accepted $100,000.   Defense costs may run into thousands of dollars or more.  If the verdict was $0, then the Court would assess defendant’s attorney’s fees against you and the result would be a cost judgment (debt) owed by you to the opposing party.  If not paid then the opposing party could take legal steps to collect the debt by garnishment or levy and sale of assets. Note: both you and your own attorney suffer the loss if you decline a good offer and get a low verdict.

• Now, generally what are the fees and costs when you hire a lawyer? For a PI lawyer like me, none until the case is won.  No fees and no costs until the case is won.

Here is what ALL contingency fee contracts must do:

1. They must be written: no handshake deals allowed.
2. The contract must state the percentages due depending on whether there was a trial, settlment or an appeal.
3. The contract must state whether costs will be deducted and if so, whether before or after the fee is calculated.  In some cases the costs can run into thousands of dollars so this is a big deal.
4. Upon completion of the case, the client gets a detailed breakdown of all costs and fees with an explanation how they were determined.
5. The client and lawyer must both sign the Fee contract.
6. A fee cannot be shared between lawyers without the consent of the Client in writing.
7. A boilerplate disclosure must be signed by the client in which he agrees he read a "Statement of Client's Rights" and received a copy and understands those rights.

Some key provisions in the Statement of Clients Rights say:

You, the client, have the right to know in advance how you will need to pay the expenses and legal fees at the end of the case...you have the right to know periodically how much money your lawyer has spent on your behalf.  You also have the right to decide how much is to be spent to prepare a case.

• How much can a lawyer charge without the court's permission? After suit but before an answer is filed as follows:
• 1/3rd up to  $1 Million
• 30% of any recovery betrween $1 million and $2 million
• 20% of any recovery over $2 million

 After the case becomes contested fees at different amounts can be charged.  The fee structure has been approved by the Courts for years, and almost every PI lawyer charges fees as allowed.

Fees in excess of these structures are potentially illegal. 

Rule 4-1.5 prohibits illegal fees.  Fees which are too high, or which were generated by illegal advertising  are illegal.  Contingent fee contracts are not allowed in any domestic relations matter or criminal cases.  The vast majority of cases involving contingency fees are cases involving some type of bodily injury, death, medical malpractice or the like.

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One of the questions that often comes up is when is the best time to hire a lawyer after a crash. 

What are the pros and cons of getting a lawyer? In no particular order here are my thoughts:

PROS:

1.  Adjusters cannot call you once you have hired an attorney.  So, you do not run the risk of making a statement which will come back to haunt you later on.  If you have already made a statement, your attorney can get a copy for you.  The single biggest problem with having already given a statement is that any inconsistencies, contradictions or omissions will be magnified to make it look like you and your attorney are changing your story. For example,  if you denied the need for medical treatment at the scene, that may be used to persuade the jury that you weren't hurt by the accident, so why are you making a claim?

2. Physical Evidence can be preserved.   This includes visible things like photographs of the vehicles, crush damage, skid marks,  the scene, bruises, scars, and  photos during the healing process.  Skid or brake marks fade away over time with traffic and weather. Gouge marks left in the pavement, and damage to guardrails are fixed.  Cars which are totaled are sold for scrap and crushed, so they can no longer be photographed.  Seat belts which malfunctioned can no longer be tested.  Shredded tires are vital to proving defects if any.  Sometimes 911 calls and dispatch records are only kept 30 days then  they are recorded over, so any recordings of voices disappear into the netherland.

3.  Key witnesses can be located before they move away, their memories fade and they give statements to insurance companies without having a chance to review and refresh their recollections. Insurance companies are not required to share those statements with you.   Some witnesses do not want to get dragged into a case and refuse to cooperate after talking with the adjusters.

4. Under Florida law, you have the absolute right to choose your doctor.  A lawyer can help steer you  away from an unhelpful insurance oriented doctor. Some doctors are more open to the reality of having to give court  testimony than others.  Some doctors are more inclined to think their patients are malingering or faking injuries to get a big settlement.  

5.  A lawyer can help explain and make a claim for your PIP benefits. Although  PIP benefits are supposedly easy to get and the forms are a cinch, PIP companies deny benefits, or cut off benefits improperly.  A lawyer can assure your rights to medical and wage losses are paid.  

CONS:

1.  If you hire a lawyer he may charge a retainer to cover his time and expenses.  If  your case is meritless, you may have wasted your cash.  This risk can be avoided by hiring a lawyer using a Contingency Fee contract.  Costs and fees can be avoided.  See my earlier Blog.

2.  You lose control over your case.  Your lawyer, not you, deals with the insurance company, decides what expenses if any are needed, and gives advice to you about your case.  Ultimately you may fire your lawyer but if you do so without justification, you will owe him something for his expenses and time.

3.  You cannot settle the case on your own and avoid a legal fee.  He will have a lien on your case which the insurance company will want to honor, or they will have to pay twice.

All in all I recommend hiring an attorney within a couple of weeks after an accident.  TV ads often promote law firms with an 800 nnumber and lawyers who can talk to you 24/7.  Ads like these  create a sense of urgency.  There is no need to hire a lawyer within hours after a crash.  Time should be taken to make a wise choice, check references, check reputations, and ask around.  

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 I will occasionally discuss the law of Evidence on some  things that often create major trial problems for the plaintiffs.  A mistrial always favors the defense because they get  a postponement.  Today's discussion is based on a rule of Evidence.  Sometimes rules of law lead to unusual and bizarre results.  This one reminds me of a Rule which led Mr. Bumble,  a Charles Dicken's character in Oliver Twist  to declare:  "If the law supposes that -- then the law is a Ass."   Bumble was talking about the rule of law in Merry Olde England  which assumed a man controlled, and was therefore responsible for his wife's actions.

During trials involving traffic crashes there is one thing which is so explosive that the mere mention of  it by either side in the presence of the jury will cause a mistrial.   When a traffic accident case goes to trial, the jury always wants to know and expects someone to put on evidence :  who got the "TICKET?"

In Florida good  trial lawyers do not make a proffer of any evidence on Traffic tickets. They intentionally do not say anything about a Ticket being issued  during voir dire or opening statements and their witnesses are taught not  to mention Tickets in front of the jury. When the rule gets violated,  the judge should stop the trial and a new jury should be selected.  Requesting a cautionary instruction to the jury is not a good idea and may waive the error.  Check this out in a recent case on this point: White v Consolidated Freightways of Delaware, 766 So. 2d 1228 (Fla. 1st DCA 2000).  Here is an excerpt from the appellate court decision which revealed a very subtle and reversible defense argument.  The driver of an 18 wheeler, Mr. Dickson,  rear ended a bunch of cars.  The FHP officer did not give him a ticket.  Here is an excerpt from the improper Defense opening statement  which resulted in a reversal and a new trial:

"You'll also hear the testimony of Investigating Highway Patrolman C.C. Barclay who looked at the physical evidence, he talked to everyone who was there; I think the evidence will show that no one claimed that Mr. Dickson had anything to do with this accident at the scene of the accident. 

. . . .

After he was there for a while and had told the police officer what he saw, then he was allowed to proceed with his trip, and Mr. Dickson will tell you that the first time he heard that anybody was claiming that he had anything to do with this accident was long after, months after it occurred."

(emphasis supplied)

It is not possible to tell if this was an honest oversight of the T-word rule by Defense counsel or a gamble that  a motion for mistrial would not be made. 

Lawyers know just like everyone else that a Ticket is  symbolic of fault.  If admitted it would tell the jury who in the opinion of the traffic cop caused the crash.  Sometimes the cop witnessed the crash, but more likely got there a few minutes later and after asking around either decided to issue a  ticket or not.   His official act is seen as an objective third party point of view gathered promptly at the scene from witnesses whose recall is still fresh.  Also, the court will instruct the jury that a violation of a traffic statute is possible  evidence of negligence. 

I had the misfortune of representing a client on a motorcycle who was seriously injured by an oncoming car.  After the trial I got an irate call from the foreman: How come you did not put on evidence that the Defendant got a Ticket?  I looked it up and you did not put on any evidence.  If you had, we would have returned our verdict for your client."  I was crushed, and so was he. I told him I could not legally put on evidence and he had based his verdict on speculation, since there was no proof of a ticket, and held the Defendant Not Guilty.

Model jury instructions do not mention traffic tickets.  In fairly obtuse wording the Florida Model court instruction 2.1 merely says to the jury they should not "speculate on any matters outside the evidence."  How does a juror know what that means?  What does it mean?  To a layman, a Ticket is inside the evidence and so it is ok to want information about it, and if it is not part of the trial, they think about it. I suggest the model instruction is defective because it is vague, and I have tried cases where a mistrial occurred because someone mentioned a Ticket. How many more were verdicts entered based on speculation?  Who knows?

Generally the failure to testify in a civil action results in an inference that the testimony would have been unfavorable.  There is a  limitation on that rule that the “unfavorable inference which may be drawn from the failure of a party to testify is not warranted when there has been a sufficient explanation for such absence or failure to testify."  Plaintiffs are caught in a no man's land about this because they cannot explain  why they have not put on any evidence about the ticket.

Rule Regulating Florida Bar 4-3.4(e) prohibits lawyers from arguing facts that are not in evidence. Rule 4-3.5(a)  prohibits lawyers from seeking to influence jurors except as permitted by law or the rules of court.

Sometimes it is a necessary to request a special instruction when the Model jury instructions are vague or simply do not cover the issue.  A special instruction was requested (and then abandoned) in one case where a citation issue came up at trial here.  

Many of the standard instructions were crafted before jurors were allowed to read instructions  and the law was less complicated.   There is a great discussion on using special instructions in Ryder TRS, Inc.  v  Hirsch, 900 So. 2d 608 (Fla. 4th DCA  2005).  So long as they do not confuse or mislead the jury, the instruction is within the discretion of the trial court.  Trouble is many Judges don't like to give special instructions even if they are not confusing or misleading.I think the time has come in Florida to request a new special jury instruction in cases where a jury might reasonably expect evidence on the issue of whether a ticket has been issued.  Here is my stab at a special jury instruction in these type of cases:

"You have been instructed not to speculate on any matters "outside the evidence."  That includes speculation about whether a traffic ticket or citation was or was not issued to any party in this case."

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During the last two weeks here in Flagler county the story of a horrific truck crash, totally avoidable unfolded before a local jury.  The jury  listened spellbound to the story of  loving couple who moved here to live out their golden years together.  That came to a sudden end in the blink of an eye when an overworked, angry, truck driver went barreling through a stop sign at 55 m.p.h and obliterated their van. She was killed and he was airlifted by helicopter to a nearby hospital.  Sadly he never even got to say goodby it happened so fast. As the Plaintiff said, "It is hard to beleive your life can change so fast."

Their case was reported by Frank Fernandez of the Daytona News-Journal.  On November 11, 2009 the jury heard the opinion of an almost unbelievable "expert" accident reconstructionist from south Florida.  It was his opinion that the truck driver was a "victim" because Flagler county had paved over a few rumble strips.  He felt the fact that there were several signs warning of the dangerous intersection was not good enough.  Mr. Fernandez wrote about it and there were numerous comments posted before final arguments started today. This type of defense argument had to inflame the jury.  In my opinion it should result in a higher than usual damages award. It was very risky defense  to try and pull over a quick one on the jury.

There were other  aggravating circumstances:

• the driver was on the road in excess of the maximum number of allowable hours,
• the sod company for whom he worked had no idea of his lousy driving or employment record, because they did not pay $10 to get it,
• he refused to cooperate with a mandatory DOT drug test required because of the fatality, 
• the defendants refused to accept responsibility,
• the driver was overworked and tired, and
• His company had no system to monitor his hours so did not know whether he was driving too much.

More than 20 comments by readers who followed the trial in Fernandez's column  were available online first thing this morning. The overwhelming majority thought the accident reconstruction expert was a joke and implored the jury to ignore his testimony.  I don't know whether the Plaintiff's very fine trial lawyers Steve Pajcic  and Tad Griffin of Jacksonville were aware of their comments when they prepared for final summation.  Mr. Pajcic made the final argument.  He asked for almost $10 million in damages, which was in his opinion fair given all the circumstances.  I agree and hope the jury agreed with him too. I thought it was worth more.  There was a lot of evidence to support the request.

Knowing how much to ask the Jury for  is a delicate, tough and lonely decision for any plaintiff's trial lawyer, no matter how skilled,  and experienced he is.   If he asks for too little, the jury award will not be adequate.  Too much and the jury will be insulted.  The venue should and must be considered too.  In a place like Flagler county, jurors may feel a lawyer is asking for too much, whereas under the same facts in south Florida, another jury may easily feel at home with a large damage award. 

 The "comments" from readers of Mr. Fernandez column on this case might be a good indicator of what the jury will do with the damage award in this case.  We'll know the results soon.

*******

P.S.  Late in the day on November 12, 2009 the Jury returned a Verdict for $5.1 million according to the latest column by Frank Fernandez.

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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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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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When a borrower closes on a mortgage loan he usually signs a promissory note and a mortgage.  The Mortgage is a pledge agreement.  The note is the legal document proving the debt is owed, and is a fancy I.O.U. It can be sold (negotiated) to another bank.  The right to foreclose depends on who owns the Note.

Historically, banks were able to buy and sell mortgage loans, and when they did, a legal document called an Assignment of Mortgage was always filed in the local Clerk's office to prove the loan had changed hands.  Filing an Assignment was cheap, costing less than $10, and it created a paper trail.  When the loan changed hands several times, a new Assignment was recorded each time to show who the new owner was. 

The Assignment process was little more than a boring paper trail "formality"  until the housing boom but it  has taken on huge ramifications.  The way to link ownership ( and the right to sue to foreclose) with the mortgage was through an Assignment, but there is not always an Assignment.

Why?  Because the ownership of the loans which were held by MERS "as nominee" cannot be proven, and without knowing who owns the loan, the mortgage lien is unenforceable.  One of the boilerplate mortgages during the housing  boom often named MERS "as Nominee."  If your mortgage names MERS "as nominee" you may very well have a good defense to stop a foreclosure.

The system may seem archaic, but it worked for centuries.  Trouble is that some on Wall Street  felt it was too slow and  costly. In an era of electronic banking, Wall Street wanted a system allowing the instantaneous electronic transfer of entire mortgages, or just pieces of them. 

As part of the housing boom Wall Street created a huge electronic swap meet to allow banks to buy and sell their loans electronically.  Bundles of mortgages were called Collateralized Backed Securities.  They were insured by Credit Default Swaps.  The entity which acted as the electronic clearing house and filing system keeping track of the loans which were sold is called MERS, short for "Mortgage Electronic Recording System."  It was meant to be a modern day substitute for the clerk's office by eliminating filing fees, and speeding up the trading of mortgage loans.  Banks saved over a billion dollars in fees by not paying to have Assignments of Mortgage recorded.  The system does not fit in with the legal  jigsaw puzzle and is causing  some cases in the foreclosure process to crumble apart.  Hats off to LivingLies for reporting the recent Kansas supreme court decision which shot down MERS.

April Charney, a Jacksonville, Florida attorney was recently credited by the New York Times for her excellent efforts in raising this defense.  She has alerted other  consumer lawyers what it means and how to defend a case when MERS as nominee is involved.  It took a long time for the Courts to start recognizing this defense.  So far there is no legal precedent in Florida like the Kansas Supreme court decision, but it is not far from coming. 

 In the meantime MERS means MESS if the bank is trying to foreclose.

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I send  notice to all potentially at fault parties at the beginning of a new claim, and it must be done right. If more defendants are discovered later on they get sent notices too.  In most cases, my letter briefly explains the type of  incident,  where, and when it happened.  It is sent to all having some share of  the responsiblity.  They are requested to forward my letter to their insurance company or attorney for further handling.   Within a week or two I will get a call from an adjuster  confirming insurance coverage for the incident requesting more details. Believe me, a person getting a letter threatening suit does not ignore it.

The statute of limitations should be kept in mind when a case comes in to avoid letting the statute run while an investigation is pending.  

The initial letter is not sufficient to toll or stop the running of a statute of limitations.  A suit must be filed to stop the statute from  running.

There are different presuit statutory requirements regarding certain classes of defendants or types of lawsuits.  

• Statutes like  FS 768.28(6)(a) require presuit notice to the state of Florida or one of its agencies, like the City of Palm Coast, Flagler County, a County School Board, Sheriff's office, or a special taxing district like Halifax Hospital Medical Center, with a copy to the Department of Financial Services.  
• Suits against the Federal government for negligence of employees (like a mailman) require yet another notice under the Federal Tort Claim  Act. . 
•  Suits for nursing home negligence (FS 400.0233(2))  and  medical negligence (FS 766.106(2)(a)) also require a presuit notice.  If a statute is not strictly complied with,  the Court will dismiss (throw out) a case when it is filed.  If the statute of limitations has already run, the dismissal could be fatal.  There is a two year statute on professional negligence and in wrongful death cases, so the clock has to be watched. The presuit notice prohibits filing a suit on medical negligence cases for 90 days after the defense has been notified, effectively tolling  the statute of limitations  and granting at least 60 days to file suit after presuit ends.  A party can obtain an automatic  90 day clerk's extension  to make up for the loss of time to complete a med-mal presuit investigation when the statute of limitations is about to run.

At trial the defendants will often use the "empty chair argument" if one or more at fault parties are not present.  Florida also has the Fabre rule, and both  rules need to be considered even at early stages of representation to assure a tactical advantage is not given to the Defense.  A jury will often take the easy way out in a trial by putting the entire blame on the defendant who should be sitting in the empty chair, but who is not a party to the lawsuit.

Although starting a claim may seem simple, there are lots of "gotchas" to be aware of.  Using an experienced attorney can be critical even at the earliest stages of representation.

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I was recently asked by two clients to help them regarding privacy issues. In both cases the opposing party wanted to take custody of their computers and copy their entire hard drives.

The issue: whether they had been using their computers to sell data illegally on the Internet.

After a couple of days, the opposition would give the computers back, with the promise that they would "try" to avoid peering into purely personal stuff. And if they found any, they would not copy it.   What is that saying about "letting the cat out of the bag?"

Their computers had been used for both personal and business reasons over the years. Their hard drives also had private information obtained from their customers, like credit card numbers, and personal information about their friends too. As computers become more and more central to our lives, it is to be expected that lawyers will often ask for data stored on computers.

Computers are like giant filing cabinets except the information is electronically stored instead of on paper. Florida law recognizes a constitutional right of privacy in these situations. A Motion for Protective Order should be filed to assert the right of privacy. The Judge should not allow the entire hard drive to be copied and should pare down the Discovery to protect the privacy interests of the objecting party.

Read more on the procedure in Florida, after the jump...

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I was talking to a client recently about his car accident. Before the accident, he said he had lots of surgeries before including neck and lower back surgery. More than 10 years ago he had a multi-level cervical fusion. He said he was doing fine up until the accident.

After the accident, he is facing a brand new cervical fusion to fix problems in his neck. He has numbness in his hands and severe headaches. He drinks out of plastic cups because he is afraid of dropping a glass. His neurosurgeon is scheduling him for a multi-level fusion of the entire cervical region from C6-7 to C3. Because of the recent accident he wanted to know how his previous surgeries fit in, and how his case was going to be handled.

Here are a few things to keep in mind when an old injury gets aggravated:

1. Everyone over the age of 30 starts having changes in their body which are a part of getting older. These changes are called degenerative disc disease  by doctors. Actually it is not a disease at all, but simply a normal part of  the aging process.

As we grow older the changes are easier for doctors to read on xrays and MRI's. So it is important for a lawyer, when arguing your damages case, to as carefully as possible distinguish between that type of change (which is totally normal) and those caused by an accident. To know what changes have occurred it is very important to have an accurate medical history. One common change is a ruptured or herniated disc.

2. I told him that the law only allowed recovery for any new injuries or the aggravation of pre-existing injuries which were caused by the accident. Sometimes it is difficult, even for a doctor to pinpoint the cause of a change in a person's medical condition.

Changes in a person's medical status may be the natural result of changes which occur over time, a disease, the negligence of a defendant or a combination of all these factors. It may be caused by two or more accidents or trauma, some of which may happen at the same time, or happen over a period of months or years.

Sometimes changes after an accident are subtle, like a ruptured disc and they may take weeks or months to surface.

I told him his treating physician would be in the best position to state what new injuries he had and whether his medical condition was worsened, aggravated or exacerbated by the accident in question. The testimony of his doctor would be admissible in a court of law as an expert opinion.

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