Triallawyer's Blog

The Verbal Threshold in Florida - Why Concede its Application?

2010-08-02T19:48:00.002-04:00

The Verbal Threshold - Why Concede its Application?

Automobile practitioners see the verbal threshold defense raised regularly as an Affirmative Defense in personal injury crash cases. Paraphrased, this is usually expressed as: If the plaintiff does not have a permanent injury, loss of bodily function, significant scarring, or is not dead, than the plaintiff cannot collect for non-economic damages. But, the paraphrase is wrong because it is incomplete, and the error has made its way into the new jury instructions and suggested verdict forms.

The error that is seen regularly, is the assumption that all defendants get to argue the threshold defense. They do not. Fla. Stat. §627.737 controls this matter:

627.737. Tort exemption; limitation on right to damages; punitive damages

(1) Every owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by §§ 627.730-627.7405 [the “Florida Motor Vehicle No-Fault Law”], and every person or organization legally responsible for her or his acts or omissions, is hereby exempted from tort liability for damages because of bodily injury, sickness, or disease arising out of the ownership, operation, maintenance, or use of such motor vehicle in this state to the extent that the benefits described in § 627.736(1) are payable for such injury, or would be payable but for any exclusion authorized by §§ 627.730-627.7405, under any insurance policy or other method of security complying with the requirements of § 627.733, or by an owner personally liable under § 627.733 for the payment of such benefits, unless a person is entitled to maintain an action for pain, suffering, mental anguish, and inconvenience for such injury under the provisions of subsection (2).

(2) In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by §§ 627.730-627.7405, or against any person or organization legally responsible for her or his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:

(a) Significant and permanent loss of an important bodily function.

(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

(d) Death.

Emphasis added.

The statute is an Affirmative Defense. i.e., Ferraro v. Marr, 467 So.2d 809, 810 (Fla. 2d DCA 1985). If not tried by consent, the defendant therefore has the burden to plead and prove it. i.e., Langford v. McCormick, 552 So.2d 964, 967 (Fla. 1st DCA 1989). Usually, we see this defense pled. Usually, the defense lawyer is more than ready to contest the existence of the threshold injury. However, rarely is the defense lawyer ready to prove the portion of the statute bolded above: that the defendant has PIP insurance. But, that is what the statute requires, unless you try it by consent.

In noting that even non-residents can avail themselves of this defense, if (but only if) they purchase insurance equivalent to Florida PIP insurance, our Supreme Court said:

The trial court ruled in favor of the nonresident defendants. The Fifth District Court of Appeal, sitting en banc, affirmed by an equally divided court, holding that the tort exemption applies to a nonresident who voluntarily obtains PIP coverage which complies with Florida’s no-fault law. 485 So.2d at 905.

Spence v. Hughes, 500 So.2d 538, 539-40 (Fla.1987).

In deciding whether the verbal threshold applies to uninsured coverage cases our Supreme Court noted:

The security referred to in section 627.737 is an insurance policy or other equivalent security which provides PIP benefits. While automobile owners are required to carry PIP coverage, this section rewards them for doing so by exempting them from liability for noneconomic damages except in cases involving permanency or death. The legislative theory is that if every automobile has PIP coverage, injured motorists will be reimbursed by their own carriers for most of their economic damages regardless of fault, and negligence actions against third parties will be limited to the more serious cases.

Dauksis v. State Farm Mutual Automobile Insurance Company, 623 So2d 455, 456 (Fla. 1993).

Then, the Supreme Court struggled with the fact that the tortfeasor uninsured motorist did not have PIP, so would not have a threshold defense, and concludes that the underinsured motorist carrier therefore, standing in the shoes of the tortfeasor, also does not have this defense:

Whether the verbal threshold must be satisfied depends on whether the tortfeasor motorist has provided the security required by the no-fault law. If a tortfeasor motorist has failed to provide the security required by the no-fault law, then the injured plaintiff may obtain pain and suffering damages without satisfying the verbal threshold.

Id. at 457-58.

The actual holding in Dauksis can be contrasted with the result when the tortfeasor has PIP insurance:

Since Tomeu [the underinsured tortfeasor] had PIP coverage, the plaintiff was required to satisfy the verbal threshold in order to obtain pain and suffering damages from Tomeu. Id. § 627.737.

Under the insurance policy, State Farm was entitled to the benefit of Tomeu’s defenses. It follows that the plaintiff was required to satisfy the verbal threshold in order to recover damages for pain and suffering from State Farm under his uninsured motorist coverage.

State Farm v. Gomez, 605 So.2d 968, 970 (Fla.3d DCA 1992); approved, Dauksis at 459.

Then, in Pollard v. Williams, 623 So2d 588 (Fla. 2d DCA 1993), the court held

The supreme court held that whether a plaintiff injured by an uninsured motorist may obtain pain and suffering damages without satisfying the threshold requirements of section 627.737(2) depends on whether the tort-feasor motorist has provided the security required by the no-fault law (PIP) and the language of the uninsured motorist policy. A motorist having PIP coverage is not responsible for pain and suffering damages until the threshold requirements are met. A tort-feasor motorist without PIP coverage is not so insulated and is responsible for pain and suffering damages without the threshold requirement being met.

Pollard at 589 (emphasis added).

Therefore, if the matter is not tried by consent, admitted in the pleadings, or resolved by summary judgment, the failure of the defendant to prove that the defendant had PIP insurance should result in a directed verdict on the verbal threshold defense.

We agree with the district court that the tort exemption applies not only to those individuals required by statute to provide PIP coverage but to every individual (resident or nonresident) who actually provides PIP coverage conforming to the no-fault law. . . . As the majority below pointed out, “the intent of the legislature ... and the best interests of the residents of the State of Florida would appear to be to encourage non-residents to voluntarily obtain PIP coverage before traveling on the highways of this state.” . . . We approve the well-reasoned opinion of the court below and, therefore, adopt it in its entirety.

Foreclosure defenses

2010-04-09T00:48:00.001-04:00

Foreclosure defenses

What do I do if I am sued for foreclosure in Florida?

Respond to the Complaint

You have twenty days after service to respond to the Complaint. The response can be an Answer or a Motion to Dismiss. If justified, the initial response should be a motion to dismiss. The Motion to Dismiss delays the time for an Answer until the motion is denied. You will waive many issues if you omit them from the motion, so you should hire a lawyer to represent you if at all possible.

Draft the Motion to Dismiss

Consider:

1. Was service on you proper? (In your hand, or if at home in the hand of you or another adult resident)

2. Is a copy of the promissory note attached to the Complaint?

3. Does the plaintiff adequately show the plaintiff owns and holds the note?

4. If there is a count to re-establish a lost note, does the count say it was lost while in the possession of the plaintiff? Are the allegations generic or specific?

5. Does the Complaint show that the taxes on the note were paid?

6. Does the Complaint show that you signed the note or have an interest in the property (2d mortgage holder, tenant, etc) -- being a spouse of the debtor is no reason to sue you.

Serve the motion to dismiss. Send the original to the clerk of the court. (If possible, bring a copy of the original to the clerk of the court with the original motion and have the clerk time-stamp your copy to show it was on time).

Wait until the judge rules on the motion

Some circuits require that you send a copy of the motion to the judge with a blank order and envelopes. If there is such a requirement, do it. You do not have to do anything else until the motion is denied. Under the above procedure, this might happen without a hearing, or the judge might request a hearing. In the circuits that do not require notifying the judge about a motion to dismiss, the plaintiff will have to contact you, discuss the merits of the motion, and if you do not agree, either set it for hearing or Amend the Complaint. (If the Complaint is amended, go back to step 1, above). If the matter is set for hearing, attend the hearing and tell the judge why the Complaint is defective (not why you do or do not owe the money).

Answer the Complaint

You should have a lawyer do this in order not to miss important issues. But consider:

1. Denying all the material facts alleged.

2. Adding Affirmative Defenses; consider these:

A. The same issues detailed in the Motion to Dismiss considerations

B. Predatory lending

C. Illegal interest rates

D. Waiver

E. Violation of the Truth in Lending Act

F. The Complaint fails to state a cause of action.

G. The Complaint fails to state a cause of action because it does not show endorsement of the promissory note to the plaintiff.

H. Plaintiff has failed to present the promissory note for payment as required by Fla. Stat. §§673.011, et. seq.

I. Plaintiff is in violation of Florida Statute §57.011 because it is a non-resident of the State of Florida that has not posted a non-resident cost bond after a demand that it do so.

J. Plaintiff is not the real party in interest

The matter will be set for mandatory mediation

The Florida Supreme Court has recently adopted rules requiring mandatory managed mediation in all residential foreclosure cases. You will be contacted by the organization responsible for the mediation. TAKE THE CALL. COMPLY WITH THE REQUEST TO CONTACT THE CREDIT COUNSELOR. PROVIDE THE REQUESTED INFORMATION. Attend the mediation when it is set.

Attend mediation

Consider these possibilities: If you want to leave the home, consider:

1. Giving a deed in lieu of foreclosure (be sure you get a guarantee of debt forgiveness)

2. Asking for move-out money ("Cash for Keys")

3. A short sale (be sure you get a guarantee of debt forgiveness)

4. Setting a move-out date long into the future.

If you want to stay in the home, consider:

1. Ask for a reduction in principal to the value of the home (A recent federal program may help facilitate this in part)

2. Asking about the HAMP program (if you qualify, the interest rate is reduced and the term extended so that the payments are reduced)

3. Asking about conventional refinancing to current rates

Remember, you do not have to agree on anything. You can let the foreclosure take its course. Remember, the promissory note is negotiable paper, it may be able to be sold and then enforced against you if you do not get the original note back.

If mediation is unsuccessful, send discovery to the plaintiff

You need a lawyer to do this well. The discovery should be aimed at showing that you do not owe this plaintiff anything. Consider:

1. Interrogatories

2. Request to Produce

3. Request to Admit

Be aggressive if you do not timely receive responses. File motions to compel and set them for hearing. The plaintiff's lawyers are probably working on a flat fee and may leave you alone if you are difficult to deal with. Be sure to properly respond to the plaintiff's discovery. (Request to Admit are deemed admitted if you do not timely respond).

When the Motion for Summary Judgment is filed; Respond with an Affidavit

A trial will be needed if any material allegations are at issue. These might include who owns the note, are you in default, as well as the legal defenses set forth above. But, the judge will only defenses presented in a timely, properly drafted and filed affidavit, Get a lawyer to help you do this. Avoid a Summary Judgment.

If there is a trial, defend aggressively. Make sure you hire a court reporter for trial

Raise all the issues stated above. Bring witnesses and documentary evidence.

Concede nothing.

If you lose

Consider an appeal, but this is costly and does not delay the foreclosure without posting a bond. You can still redeem the property by paying the judgment until the clerk of the court issues the certificate of title. Consider refinancing.

Collins Center (Mediation Manager)

Court - 19th Circuit - For rules, etc

How do I Prepare for Trial?

2010-04-09T00:30:00.001-04:00

How do I Prepare for Trial?

What you need to know as a party to prepare for trial. This guide does not establish an attorney-client relationship or any legal duty on the part of the answerer. It is for general information only. Use at your own risk! Actual legal advice can only be provided when you retain a lawyer.

Meet with your lawyer

Find out what the issues are, who the witnesses will be and what the important documents are.

Review all previous testimony

These could be deposition transcripts, interrogatories, informal witness statements. Not just your statements -- review everyone's.

Familiarize yourself with the important exhibits

You do not have to be as familiar with them as your lawyer, but you should know what will be going into evidence.

Sit in on a trial

They are open to the public. So, pick one similar to yours. That is a jury trial if you have a jury, bench trial if you do not. Commercial, personal injury, criminal -- try to get one close. You might try to get one in which the opposing lawyer is an advocate. You might try to get one in front of the same judge. Sitting in on a trial will help to put you at ease.

Set aside enough time for the trial

You may not have much advance warning of the scheduling of the trial. Give as much notice as possible to whomever you need to tell -- spouse, boss, children, pet-sitter, etc.

Think about settlement

I mean realistically. Settlement is up to you, not your lawyer. there are almost always settlement overtures made at trial. Be ready.

Make sure you have nice clothes for trial

This may be more important than it first seems. Some jurors will judge you on your appearance. For men, this means a suit, shirt and tie. For women, this means a conservative suit, dress, or similar wear. Nothing overtly sexual. No flashy jewelry, no loud colors. Nothing garish. Think of what you would wear to go to a funeral.

How Do I Control My Legal Fees and Costs in an Hourly Case?

2010-04-04T12:14:00.001-04:00

How Do I Control My Legal Fees and Costs in an Hourly Case?

This guide does not establish an attorney-client relationship or any legal duty on the part of the answerer. It is for general information only. Use at your own risk! Actual legal advice can only be provided when you retain a lawyer

Decide what you want

This seems simple. But, many people are unfocused in litigation. If prosecuting the case, you need to prove liability and damages. If defending, you need to disprove at least one of these items. Every action taken by the lawyer should be directed towards one of these goals. Nothing should be done by rote. You never want to spend money to harass the other side. You do not need to explore all options, just the productive ones.

Make sure your lawyer has a plan and that you agree with it.

The plan should cover a reasonable period of time. It should be detailed for the near future and less detailed but still coherent for the medium and long range. The plan should include estimates of costs for each action, including attorney's time and expenses. The plan should set reasonable deadlines. Spend some time going over the plan with the lawyer so you know what is going to happen. "Just win," is not a plan!

Insist on being informed

If the lawyer does not return your calls in a reasonable time, fire the lawyer. If important letters are not relayed, fire the lawyer. If you are not told about court appearances, depositions or the like, fire the lawyer.

Insist on periodic reports

You want to be sure that the lawyer is following the plan. You need to know how well the strategy is going. You need to know if you need to adjust the strategy.

When you get bills examine them closely

Look for routine things that you are being over billed for, such as propounding (form) interrogatories, or requests to produce. Look for fixed charges that seem unreasonable, like one hour to prepare a one page letter. Look for charges that are lumped together so that you cannot really tell what happened during the time billed. Look for “R&R” (receipt and review) charges -- are they reasonable?

Do not bother the lawyer, unless you want to pay for the lawyer's time

If you call frequently and ask questions that require a lot of research, the bills will soar. If you try to second guess your lawyer, the bills will soar.

Do not create extra work

i.e., if your lawyer sends you interrogatories to answer in rough, try to do so. Do not call to complain. Do not ask for a long meeting to have you hand held answering detailed questions that the lawyer cannot help you with (such as, list your addresses for the last ten years).

Pay your bills timely

If the lawyer needs to dun you for payment of bills, you will be billed for the time it takes to do so.

How to get (or avoid giving) a Security Deposit Back (Florida Residential Tenancy)

2010-04-01T19:13:00.001-04:00

How to get (or avoid giving) a Security Deposit Back

(Florida Residential Tenancy)

If the landlord does not follow the statute, the security deposit will have to be returned to the tenant, regardless of unpaid rent or damage to the property. Fla. Stat. 83.49

Does the statue apply?

This must be a Florida residential tenancy. It applies to all security deposits and advance rent. The statute does not apply to:

(1) Residency or detention in a facility, whether public or private, when residence or detention is incidental to the provision of medical, geriatric, educational, counseling, religious, or similar services. (2) Occupancy under a contract of sale of a dwelling unit or the property of which it is a part. (3) Transient occupancy in a hotel, condominium, motel, roominghouse, or similar public lodging, or transient occupancy in a mobile home park. (4) Occupancy by a holder of a proprietary lease in a cooperative apartment. (5) Occupancy by an owner of a condominium unit.

Has the initial notice been given?

If the landlord rents at least five individual dwelling units, the landlord must mail or hand to the tenant within 30 days of receipt of the advance rent or security deposit a certain disclosure: The disclosure must state “the manner in which the landlord is holding the advance rent or security deposit and the rate of interest, if any, which the tenant is to receive and the time of interest payments to the tenant. . . . [and] the name and address of the depository where the advance rent or security deposit is being held, whether [it] is being held in a separate account for the benefit of the tenant or is commingled with other funds of the landlord, and, if commingled, whether such funds are deposited in an interest-bearing account in a Florida banking institution. . . .” The notice is also required to contain a copy of the provisions of subsection (3) from the statute dealing with claims against the deposit (see below for the required language).

If the notice was required but not timely made, the deposit is immediately returnable

If no notice is timely given, the tenant can force the landlord to return the advance rent or security deposit immediately. This is probably a Small Claims Court case and the clerk of the court will assist in the preparation of the inital filing. The attorney’s fees and the filing fees should be payable to the prevailing party in the lawsuit.

At the end of the tenancy, another notice is required if the landlord has a claim against the security deposit or advance rent

“Upon the vacating of the premises for termination of the lease . . . the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant's last known mailing address of [the] intention to impose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form: 1. This is a notice of my intention to impose a claim for damages in the amount of __________ upon your security deposit, due to __________. It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord's address) . If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit.”

If the notice is late, no claim can be asserted against the deposit.

If landlord fails to comply with notice provision of this section governing duties of landlord in connection with security deposit, security deposit may not be used for purposes of setoff in lawsuit in which landlord claims damages against former tenant. Durene v. Alcime, 448 So.2d 1208 (Fla. 3d DCA 1984).

So, if the notice was late or not given, suit can be filed against the Landlord for the return of the deposit

This is probably a Small Claims case and the clerk of the court will with the forms. Attorney's fees and cost are recoverable by the prevailing party against the other party.

What do I do if I am sued for Foreclosure in Florida?

2010-03-30T19:18:00.001-04:00

Respond to the Complaint

Draft the Motion to Dismiss

Consider:

1. Was service on you proper? (In your hand, or if at home in the hand of you or another adult resident)

2. Is a copy of the promissory note attached to the Complaint?

3. Does the plaintiff adequately show the plaintiff owns and holds the note?

4. If there is a count to re-establish a lost note, does the count say it was lost while in the possession of the plaintiff? Are the allegations generic or specific?

5. Does the Complaint show that the taxes on the note were paid?

6. Does the Complaint show that you signed the note or have an interest in the property (2d mortgage holder, tenant, etc) -- being a spouse of the debtor is no reason to sue you.

Wait until the judge rules on the motion

Answer the Complaint

You should have a lawyer do this in order not to miss important issues. But consider:

1. Denying all the material facts alleged.

2. Adding Affirmative Defenses; consider these:

A. The same issues detailed in the Motion to Dismiss considerations

B. Predatory lending

C. Illegal interest rates

D. Waiver

E. Violation of the Truth in Lending Act

F. The Complaint fails to state a cause of action.

G. The Complaint fails to state a cause of action because it does not show endorsement of the promissory note to the plaintiff.

H. Plaintiff has failed to present the promissory note for payment as required by Fla. Stat. §§673.011, et. seq.

I. Plaintiff is in violation of Florida Statute §57.011 because it is a non-resident of the State of Florida that has not posted a non-resident cost bond after a demand that it do so.

J. Plaintiff is not the real party in interest

The matter will be set for mandatory mediation

The Florida Supreme Court has recently adopted rules reuiring mandatory managed mediation in all residential foreclosure cases. You will be contacted by the organization responsible for the mediation. TAKE THE CALL. COMPLY WITH THE REQUEST TO CONTACT THE CREDIT COUNSELOR. PROVIDE THE REQUESTED INFORMATION. Attend the mediation when it is set.

Attend mediation

Consider these possibilities:

If you want to leave the home, consider:

1. Giving a deed in lieu of foreclosure (be sure you get a guarantee of debt foregiveness)

2. Asking for move-out money ("Cash for Keys")

3. A short sale (be sure you get a guarantee of debt foregiveness)

4. Setting a move-out date long into the future.

If you want to stay in the home, consider:

1. Ask for a reduction in principal to the value of the home (A recent federal program may help facillate this in part)

2. Asking about the HAMP program (if you qualify, the interest rate is reduced and the term extended so that the payments are reduced)

3. Asking about conventional refinancing to current rates

Remember, you do not have to agree on anything. You can let the foreclosure take its course. Remember, the promissory note is negotiable paper, it may be able to be sold anf then enforced against you if you do not get the original note back.

If mediation is unsuccessful, send discovery to the plaintiff

You need a lawyer to do this well. The discovery should be aimed at showing that you do not owe this plaintiff anything. Consider:

1. Interrogatories

2. Request to Produce

3. Request to Admit

Be aggressive if you do not timely receive responses. File motions to compel and set them for hearing. The plaintiff's lawyers are probably working on a flat fee and may leave you alone if you are difficult to deal with. Be sure to properly respond to the plaintiff’s discovery. (Request to Admit are deemed admitted if you do not timely respond).

When the Motion for Summary Judgment is filed; Respond with an Affidavit

If there is a trial, defend aggressively.

Make sure you hire a court reporter for trial.

Raise all the issues stated above. Bring witnesses and documentary evidence. Concede nothing.

If you lose

Why can't lawyers say what they mean?

2010-03-30T18:49:00.000-04:00

I am looking at the 4/1/10 edition of The Florida Bar News. There is an article on page one entitled "S. Court issues rules for online records." In the article the writer says: "Court clerks have worried about the enormity of their new duties . . . . "

Really??? Are they going to start executing lawyers who do not e-file???

"Enormity" means "outrageous or heinous character; atrociousness: the enormity of war crimes." Using it to mean enormousness is non-standard. http://dictionary.reference.com/browse/enormity Why not use precise language, and say what is meant, especially in a publication for lawyers?

Then there is Fla.R.Civ.P. 1.440(b) "any party may serve a notice that the action is at issue [pleading are closed] and ready to be set for trial." We learned in the last Florida Bar Journal that cases say under this rule that the court cannot refuse to set the matter for trial because it is not ready to be set for trial, that as a matter of law it is ready to be set for trial when the pleadings are closed. So what purpose does the last half of the quotation serve? How many defense attorneys respond to notices for trial by saying the matter is not ready to be set for trial because discovery is ongoing? Why not make the rule say what it means? It should say: "any party may serve a notice that the action is at issue and therefore ready to be set for trial," or "any party may serve a notice that the action is at issue."

I'm still trying to figure out what "NOW COMES" or "COMES NOW" at the beginning of every motion, and always in all capitals means. Shall I bow? Why waste the toner and paper on this crap?

Please also tell me why so many lawyer send two sets of interrogatories? The rule requiring two sets died 20+ years ago. Does nobody read the rules?

The rules seem to require penalties as the usual result for stupid positions taken by lawyers in discovery. But, I cannot remeber the last time a judge actually sanctioned someone for making stupid objections to discovery. If sanctions are supposed to be a last resort (which is how they are treated) shouldn't the rule say that?

Do I have a valid claim for medical malpractice?

2010-03-27T20:28:00.000-04:00

How does one evaluate whether there is a valid claim for medical malpractice?

Is there negligence?

Just because you were injured does not mean you have a claim for malpractice. You have to show negligence for there to be a claim. “Negligence” is the failure to act reasonably. In the medical context, this means that the health care provider did not do something that should reasonably have been done, or did something that reasonably should not have been done. This is often referred to as the “standard of care.” You hear this question asked: “Did the doctor meet the standard of care?” This is the same question as: “Was the doctor negligent?” So, you need to determine the “Standard of Care.”

Determine the standard of care

This is different for every endeavor. You may need to consult with a similar health care provider to get this answer, or perhaps the standard is obvious and you can find it in medical literature. An example is wrong-sided surgery. The surgeon has the duty to be sure that the surgery is on the correct side of the body. X-rays are easily flipped and look the same, but on the wrong side flipped. So, the standard of care requires the surgeon to confirm with the patient which side is to be operated on. Usually the patient will be asked to mark on their own body where the surgery will be. Another obvious example might be the presentation in the ER with unexplained severe chest pain. This may require a differential diagnosis including a heart attack. So, if the patient is sent home without the analysis, but with antacids, there may be a problem.

Was there a breach of the standard of care?

If the doctor/hospital followed the standard of care, there is no negligence and no claim, even if the patient dies! Nastiness and rudeness are not actionable! (Doctors: you should know that the quickest way to drive your patient to a lawyer is to be rude and the best way to avoid even a valid claim is to be reasonable).

Did the breach of the standard of care cause any damages to the patient?

For there to be a case, the breach has to cause the damages. In the above ER example, if the patient is not evaluated for a heart attack and sent home with antacids but is run over by a car on her way home, there is no case. Many poor results are caused, not by negligence, but by the original injury/ailment. Stated another way: even with the best care, there can be poor results. They are not actionable.

Was there informed consent?

This theory is an alternative (or additional) theory to proof of negligence. In a non-emergency setting, when a patient is deciding whether to undergo a particular course of treatment, the physician has a duty to explain the possible outcomes of the choices and to explore with the patient why one choice is better/worse than another. The patient then has the right to choose. The informed consent needs to really be that, not just the signing of a form. If the patient has been appropriately informed of the risks and benefits, the occurance of the foreseeable results will not support a claim for lack of informed consent. So, if death was given as a possibility, and the patient dies without negligence, there is no claim fo lack of informed consent. However, if the physician acts as a salesman, and attempts to push the patient one way of another understating risks, or overstating benefits, and then there is a foreseeable result, there may be a claim for lack of infiormed consent.

The damages have to be significant

Medical malpractice cases are big deals. They are very expensive to prosecute due to the needed testimony from appropriate expets. From a societal viewpoint, claims brought over slights, damage the patient-doctor relationship, and damage the legal profession as well. So, if your doctor prescibes the wrong course of action for you, and you lose a week of work, or if your doctor is rude to you and won't renew your prescription forcing you to see another doctor -- forget about bringing a case -- it just isn't worth it! However, if the doctor was supposed to amputate your gangrene left leg and instead takes off the healthy right one -- sue him/her!

Can you collect the judgment?

Even if you have a perfect case, if the doctor has no insurance AND no assets that you can reach with a judgment, you may see nothing from a lawsuit. However, this is probably not a reason to not bring the case. It just needs to be considered. Depending on where the case is brought, the judgment might be good for a long time. Assets may have been accidently left within the reach of a judgment. (Hidden assets can be often be found and taken to satisfy a judgment)

Should I fire my lawyer, and how do I do it?

2010-03-27T20:22:00.000-04:00

Should I Fire My Lawyer, and How do I do it?

Remember, your lawyer works for you; you do not work for your lawyer.

Evaluate whether you should fire the lawyer.

Consider the following in deciding whether you should fire your lawyer:

1. Does your lawyer appear competent? (When a legal issue arises, do you get a clear, concise answer, or gobbledegook?)

2. Does your lawyer keep you informed? (Returns telephone calls and responds to your letters and e-mails reasonably timely? Timely informs you of important developments?)

3. Is your lawyer (not just your lawyer’s staff) reasonably accessible?

4. Does your lawyer have positive experience in the field for which you have retained your lawyer? You are allowed to ask your lawyer pointed questions about this: i.e., Have you drafted a will before? Have you successfully applied for a patent before? What makes you competent to give tax advice? Have you tried this type of case before? How often do you appear in court?

Does your lawyer appear to be representing you or someone else?

Typically, the client retains and pays the lawyer. In this situation, the lawyer should place the client’s interests before the lawyer’s interests. So, if after being completely advised, the client disagrees with the lawyer’s advice, barring a request by the client for unethical conduct, the lawyer should follow the client's direction (except on purely tactical issues). So, if you say you want to go to trial, but your lawyer advises against it (or vice-versa), your decision, not your lawyer’s decision should control. (Of course, if it is an issue, you must be willing and able to pay the lawyer’s fees and costs to support your decision). Sometimes, a lawyer is retained by one person to represent another person. (Insurance company to represent an insured; family member to represent a criminal defendant; officer to represent a company). In these cases, the lawyer owes his or her loyalty to the person represented, not the person paying. Violating this duty is unethical.

What are the consequences of firing my lawyer?

You will be unrepresented. You may decide to proceed without a lawyer, or you may wish to retain another lawyer. If you retain another lawyer, the second lawyer may have to duplicate the work of the first lawyer (if any work was done), perhaps increasing the fees you will pay. The results of the first lawyer’s work MAY be available to the second lawyer. Retaining a second lawyer might result in delay.

Will I have to pay additional attorney’s fees and costs?

Typically, if you discharge a lawyer for serious ethical breaches, no fee will be owed to that lawyer. However, without lawyer misconduct, the answer to this question depends on part on your agreement with the lawyer. If you retained your lawyer on an hourly basis, you will be responsible for the fees earned until the time of discharge. If you retained your lawyer on a contingent (percentage) fee basis as is typical in personal injury cases, unless your contract with your lawyer provides otherwise, you will be responsible for the value of the services rendered, plus costs expended. Typically, the value of services rendered is determined by multiplying the an appropriate hourly rate by the reasonable number of hours worked. In these cases, the fees are not usually due until the contingency occurs, that is, until you collect on your claim. Sometimes the costs expended are due on discharge.

What happens if I do not pay my lawyer?

Some states, such as Florida, allow the lawyer to retain any item of yours in the lawyer's possession until the (non-contingent) fees and costs have been paid. This is called a “retaining lien.” The items can include your file, including physical evidence. Some states, such as Florida, allow the lawyer to impose a “charging lien” on any recovery. The lawyer will notify the adverse party of the lien and any payment made to you will be subject to the lien, i.e., the former lawyer’s name will be on the check. Of course, the lawyer may sue you on the contract of representation. Typically, the new lawyer will work out an arrangement with the previous lawyer, avoiding the liens and lawsuits.

If I decide to discharge my lawyer, how do I do it?

You just notify your lawyer of the discharge. It would be best to do this in writing so that a record of the discharge exists. If you retain another lawyer, the second lawyer can discharge the first lawyer. You probably do not need to even state the reasons for the discharge. But, if it is for ethical violations, it would be best to outline those violations in the letter of discharge, so that the reasons do not later appear to be a recent invention to avoid paying a claimed fee. You may want to deal with any claimed fees and costs in the letter of disharge. Get your file as soon as possible from the discharged lawyer.

How does my previous lawyer withdraw?

If there has been no court appearance, the discharged lawyer does not need to do anything. (Remember, to get your file as soon as possible from the discharged lawyer). If the discharged lawyer has an ongoing appearance for you in court, the answer depends on the court in which the matter is pending. A motion, stipulation, court order pursuant to a stipulation of motion, or simply a notice of withdrawal may be all that is necessary.