Palm Coast Injury Law Blog : Florida Personal Injury Lawyer & Attorney : Philip J. Chanfrau : Chiumento & Guntharp Law Firm : Palm Coast, Volusia, Flagler, St. Johns

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 works for the same boss as the injured person 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 he 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 delivering pizzas for Pizza Hut and gets smacked down by a drunk driver, he can sue the drunk driver.  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 therule 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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