Florida Injury Lawyers Blawg

There are tens of thousands of lawyers in the State of Florida. Even in rural areas the telephone classified attorneys’ section presents an overwhelming number. If it becomes necessary to seek legal representation because of injuries sustained in a situation in which another party or parties may owe compensation, you may be faced with a difficult task. Whether for a friend, loved one or yourself, you want to make the right decision, but there is little available in the way of guidance to help you. Here are some perspectives that may make the process easier.

The first cautionary advice is NEVER listen to a non-lawyer individual who tries to steer you to a lawyer. It is almost a certainty that such an individual is trying to do something for him or herself and not for you. These people can be found in funeral homes, hospitals, around accident scenes and numerous other places. They may have an expectation of receiving something of value from the attorney they are pushing. The plight of you or your loved ones may simply be regarded as a way to make a fast profit for people who will not treat you as a client needs to be treated. This is not to be confused with a legitimate recommendation by a satisfied client. Such a recommendation often leads to excellent representation.

Usually in a bodily injury case, fees charged by attorneys are assessed on what is known as a contingency basis. This means that if no compensation is obtained for the client, no fee is charged by the attorney. If, however, the attorney is successful in recovering compensation, the charges will be a percentage of the amount recovered. Normally costs expended by the attorney are deducted from the client’s share of the proceeds. Although contingency fees can vary, a common contingency fee before trial is one third of the gross amount recovered. Thus if the gross amount recovered through negotiation is $300,000, the one third fee is $100,000 (33 1/3%) and the client receives $200,000 minus costs to be reimbursed to the attorney. If the costs were $4000, the client would receive overall a net sum of $196,000.

It was long ago determined that hiring a lawyer to recover compensation by paying the lawyer a flat fee or an hourly fee would be impracticable. Most clients cannot afford to pay the sums necessary to engage lawyers to pursue their claims. Historically the contingency contract fee arrangement was called “the common man’s key to the courthouse”. Additionally, most clients would prefer that lawyers be given an incentive to seek and obtain the maximum compensation attainable thus resulting in a higher net recovery for the client.

Fees in Florida injury contingency cases are regulated to a certain extent by the Florida Supreme Court which has imposed a fee schedule with maximum percentages for fees. Although there are no minimums and fees in some instances may be lower depending on circumstances, the Supreme Court schedule is normally followed. Fees are 33 1/3 % prior to the institution of suit and at the very beginning of a suit until the defense answers the complaint at which time the fees become 40%. These two fee percentages apply for only the first million dollars of recovery and after that they diminish substantially as the recovery increases. An additional 5% is also allowed for certain post judgment matters. As stated previously, costs are then reimbursed to the lawyer from the client’s share of the proceeds.

Lawyer management of an injury case can be separated into three phases:
The first phase includes investigation to establish liability, if necessary, and to determine and find insurance coverage or other assets to satisfy your claim, guidance to you about treatment of your injuries, selecting and engaging experts in the health care field and in the liability aspect of the case and advice to you about your finances relative to the case.

The second phase involves the synthesizing of all the materials in your case both pertaining to liability and economics as well as the injuries. These things must be packaged together in such a way as to give you the best opportunity for a pre-suit settlement offer. Included in the second phase is negotiation of your claim.

The third phase is litigation. This may involve a mediation session at which a full presentation of your case can be made to the other side in confidence in the presence of a professional mediator. Mediation is an excellent opportunity for a skilled lawyer to reach a settlement short of having a full jury trial. The litigation will include discovery of personal facts about you and your injuries as well as the accident or incident through written questions and oral depositions. After all this, a jury trial may take place.

For the purposes of lawyer selection, there are three general categories of attorneys in terms of the size of the attorney’s office, and even these examples are approximate: 1) the office environment of the “single”, or “sole”, practitioner who may be entirely alone or have one or two partners or associates, 2) the medium sized or boutique firm, usually from two to around eight or ten lawyers including partners and associates, and 3) the large firm with partners and associates numbering as much as in the hundreds.

There is another caution that should be mentioned at this time. For a number of complex reasons, many attorneys advertise for and seek representation of injury clients while lacking the experience and expertise necessary to provide adequate, much less, excellent representation. One reason is that an unwitting client cannot easily evaluate an attorney’s abilities in that area. In other areas of law such as bankruptcy, real estate, tax, patent and copyright, corporate or probate, a lack of ability is immediately apparent because the lawyer may not even know the vernacular of the field nor how to begin working on the matter. In injury matters, there need not be any special vocabulary, just ordinary language between the client and the lawyer, e.g. a car crash, a hospital, a broken leg. Further, many lawyers, particularly novices, believe there is nothing to handling an injury case. All you have to do is accept an offer from the insurance company. Nothing could be more erroneous. Unless the lawyer is an expert at synthesizing materials both as to liability and injury and astutely presenting them AND is known to be capable of litigating and trying the case before a jury, a good settlement will not usually be forthcoming. If the case cannot be settled without filing a law suit, full scale litigation will ensue culminating in a jury trial. Only a skilled, experienced practitioner can produce in such a situation and for this reason, many attorneys who cannot settle the case early on find themselves scrambling to engage the services of another lawyer who can actually go to court. So be careful!

Now I will discuss attorneys and law firms by areas of practice. There are very few attorneys or firms that limit their practice to injury cases only. Some combine all areas of trial (litigation) work including injury liability, workers’ compensation, family law, commercial suits and criminal law. Others may combine only some of the foregoing and still others may have additional areas of practice or a complete (general) practice. It is not necessary to select a lawyer or firm that limits its practice. In fact, it may be a considerable benefit to have a more rounded lawyer or firm since experience in other fields is considered to be a great asset to lawyers. Firms generally have areas of specialty or sub-specialty within them and this has proven to work very well for the client.

Each office size and type has positives and negatives. The “sole” practitioner in a small office, if not overworked, may be able to give good attention to your case. Frequently in a smaller office a big case is much more important to the lawyer and may be handled accordingly. But smaller offices often do not have the resources---in terms of infrastructure and finances---to carry on the burden of larger or more complex cases. As an example, in one of my automobile rollover cases the out-of-pocket costs before trial were in excess of $100,000. Sometimes additional lawyers are needed for research or multiple court appearances. Medium (boutique) and large firms have these resources, but often in larger firms, your case in just one of many and may not be very important to the attorney or attorneys working on it. I have had many complaints from clients unhappy with large firms because of the lack of personal attention, difficulty in reaching someone by telephone, etc. Often a large firm partner with a good reputation will conduct the initial meeting with a new client and then immediately assign the case to an associate who may be in the first year of practice. Commonly the client never sees the partner again.

Although board certification is important in selecting a physician specialist, the same is not true for attorneys. Certification does not have the same meaning in the law field. Most great lawyers in their respective fields have never bothered to use the process of taking certain courses just to say they were certified. Certification does not guaranty quality, only compliance with certain course requirements. Many lawyers still prefer to take diversified courses to keep themselves fully informed about more areas of the law.

Upon meeting with a lawyer for the first time, try to evaluate his/her ability to help you. Ask yourself “Is this who I would want to stand up in court representing me? Is this someone I want to see on the evening news giving a statement on my behalf? Is this a person whom I feel I can trust to do what is right for me? Is this someone who would spend time carefully managing my case and preparing my case for presentation or trial?” Rely on your instincts as well. You should be comfortable with your legal representative(s).

When your selection has been made you will be required to sign an agreement that may be called an “authority to represent”, “retainer agreement”, “fee agreement” or something similar. Read it. It will mention fees, costs and other things you should understand. If you do not, ask questions. In Florida, you are required to receive a copy of a statement of client’s rights. Read this as well. Your will see that even if you sign an agreement with a lawyer or law firm YOU CAN CHANGE LAWYERS AT ANY TIME. The State of Florida does not allow anyone to be compelled to use a lawyer at any time without full consent. However, although you can discharge a lawyer at any time, it is far better to make the right choice in the first place. I hope you do.

We have all heard the term “defensive driving” and how it relates to collision avoidance. There are other practices and techniques either to use or avoid. Here are some suggestions to keep you and your passengers safe:

1. Seatbelts. Always use them yourself and require passengers to do so. If they decline, tell them they cannot be a passenger in your car. Statistics have shown that seat belt use consistently saves lives and minimizes injuries.

2. Speeding. Speed limits exist for a reason. Unfortunately some posted limits are unreasonably low thus tempting us to drive at a speed in excess of the limits just to keep up with the rest of the vehicle flow. Nevertheless, we are all subject to the limitations of our own reaction time and the greater the speed, the longer a car will travel before braking comes into play making collision avoidance more difficult. Also, the greater the speed upon impact, the greater the damage. But speeding does not exclusively refer to exceeding the posted limit. Simply driving too fast for conditions is hazardous. Examples are bad weather visibility, poor road conditions, unusual vehicle congestion and pedestrian activity.

3. Diverting your attention. Inserting and arranging CD’s, talking on the cell phone, text messaging, putting on make-up, reading, eating, drinking and any other act that is inconsistent with the notion that driving is a full time job present dangers to the motorist and the passengers. Our complex society sometimes demands that we make certain compromises for convenience, but the use of common sense should never be forgotten. Example: Arrange for hands-free use of your cell phone so if you cannot pull over and safely park to use it, at least you will have both hands free to use turn signals and operate the vehicle.

4. Fatigue. If you are tired or sick to the point of being drowsy, do not drive. Hundreds of documented fatalities are directly related to drivers falling asleep while driving.

5. Failing to stop for a red light or stop sign. Most of use are in a hurry, but remember, it is better to be late than dead.

6. Medicines, drugs, alcohol. You do not have to be guilty of DUI or DWI to place yourself and others in harm’s way. Certainly you must avoid being under the influence of any substance or condition, legal or otherwise, that can impair your ability to operate a motor vehicle, but your obligation extends to preventing others as well.

7. Driving after 10:00PM. Often circumstances compel us to be on the road at certain times, but if you have a choice, avoid driving after 10:00 PM. The demographics of the road population change dramatically after ten. Commuters, workers and homemakers are replaced by drinkers and pursuers of social activities. And the later it gets, the lees responsible and competent they become.

8. Space cushion technique. This technique has been espoused for decades by the automobile safety community. It simply means that while driving, constantly try to keep an imaginary cushion---one of space---between your vehicle and any potential hazard you see. If you are too close when danger arises, you may not have sufficient time to react. By becoming aware of possible occurrences and reducing your speed or changing lanes, you can but more space between yourself and the hazard thus giving yourself more reaction time to avoid or minimize the effects of a collision.

Conclusion: Use common sense to make the choices that will protect you and your loved ones.

The Five “I’s” that cause problems for motorists are: 1) immaturity 2) irresponsibility 3) incompetency, 4) inattention and 5) impatience,.

We can be guilty of one or more of these “I’s”, but most often we and the rest of the population are the victims. As to each one, let us make a few observations.

Immaturity. Common attributes of youth are great aids to motorists---good vision, good hearing, good reflexes, stamina and general alertness. But, youth often thinks of itself as indestructible. Feelings of invulnerability lead to forgetting caution and taking chances. Speeding, imprudent passing, failing to modify speed in bad weather or road conditions are some of the dangers. Having personal, emotional reactions to other drivers are others. Racing, showing off and acts of revenge can lead to disasters. Nor is immaturity only a problem for the young. An old aphorism teaches us that “you are only young once, but you can be immature forever” so at any age, act maturely behind the wheel.

Irresponsibility. We should not have to be reminded that consuming alcohol or drugs, even some prescription medicines, combined with driving can be deadly. Fully fifty per cent of all vehicular fatalities in the United States involve alcohol. Driving while fatigued is another danger as is failing to use and require the use of seat belts. Responsible driving extends to influence over others as well, so see to it that no one drives while under the influence of any substance or set of conditions that can impair abilities.

Incompetency. A certain amount of intelligence is needed to drive effectively and safely. Unfortunately, many drivers are seriously deficient in this area. There is no substitute for common sense. Our challenge is to recognize this fact and be aware of the consequences. Examples are cars pulling out of parking lots or entering the flow of traffic without looking, parking in hazardous places, neglecting to use turn signals, etc. Other forms of incompetency are physical, such as bad vision or hearing, lack of depth perception, inability to judge the speed of an oncoming car before making a cross lane left hand turn, slow reflexes and so on. Some of these can be corrected by wearing proper eyeglasses, using a hearing aid, etc. However, unless the authorities act to protect us, we have little power to prevent mishaps from incompetent drivers. Again, we need to be vigilant in anticipating mishaps before they occur.
Inattention. Talking on the telephone, sending text messages, inserting CD’s putting on make-up, eating, drinking and a variety of other activities should not be combined with the full time task of driving. Our complex society makes this difficult, but some judgment must be exercised. If cellular telephone calls have to be made, at least use a hands-free method if you are unable to stop your vehicle in a safe place to talk. Once again, common sense dictates what is reasonable.
Impatience. We all want to get there on time, but running through a red light, failing to stop for a stop sign or driving too fast for conditions are not the answer. Remember, it is better to arrive late than not at all. If you want to be on time, leave earlier.

In summary, in some cases we can only react to what others do while driving so we have to anticipate cautiously. As to what we do ourselves, we have choices as to how we behave while driving and those choices can sometimes mean the difference between a normal life and horror.

Can simple courtesy prevent automobile collisions thus saving thousands of lives and preventing the misery, suffering, crippling and maiming of countless others? Well, in terms of automobile safety, there is certainly no substitute for the physical attributes that are helpful to good driving. Excellent vision and hearing, quick reflexes, competency in maneuvering are important, but such a driver impaired by alcohol, fatigued or behaving erratically because of emotions can negate the attributes. So it can be with the absence of courtesy regardless of the age or physical abilities of the operator. Let us think about a few situations with which we are all familiar.

Traffic signal controlled intersection. The light changes from green to yellow. You can stop before it turns to red, but you are in a hurry. You run the red light. Aside from the danger to yourself and others and the risk of being cited for a violation, you have been discourteous. Anyone else controlled by the intersection signal may have to adjust their moves because of you not to mention the anger and resentment felt by seeing someone flagrantly flout the rules of the road and the motoring laws. Further, your actions can produce the angst associated with the thought of what your actions might have caused---injury or death. Reflect…is that how you really want to treat your fellow motorists? They have done nothing to you!

Stop sign. Your obligation is not simply to stop, it is to wait until you can enter the flow of traffic safely. You do not want to wait, so you pull out in front of a car and get the inevitable angry car horn. Why? If you simply exercised some courtesy to the motorist having the right of way, you would have been simultaneously doing the safe thing.

Tailgating. Some drivers may not be as confident or comfortable as you are in operating a car. A vehicle following too closely can put some drivers in a panic. The standard is one car length for every ten miles per hour, but you are doing 30 mph and instead of three car lengths, you are following by less than one. We know, you want the driver in front to go faster, but tailgating is dangerous. You simply will not be able to avoid a collision if there is a mishap with your proximity. If you were merely courteous and considerate of the other driver, you would wait for your safe opportunity to proceed on your way.

Talking on the cell phone or texting. This is the absence of courtesy on steroids. When you are driving, you should pay attention to DRIVING, not holding a phone in one hand, conversing or typing and incidentally operating a motor vehicle. Your inattention can cause grief to everyone around you as well as place everyone in harm’s way. Have you ever seen someone creeping along in the fast lane, holding up a line of cars and then see that they are talking on the phone? Talk about discourteous!!! They do not even have the decency to move to the slow lane to practice their carelessness. Drivers inappropriately in fast lanes cause other drivers to pass on the right anf otherwise take chances endangering themselves, pedestrians, cyclists and other motorists. A little courtesy could eliminate a good deal of the danger.

These are only a few situations where courtesy can help. Are there so few people left who will be courteous just because it is right?

The Department of Homeland Security will grant temporary protected status to Haitians in the United States prior to January 14, 2010. Those Haitians seeking this status can begin to apply starting January 28, 2010. The United States projects that 200,000 undocumented Haitians will apply for this protected status. The TPS process will also permit those applying to also apply for a work permit.

The Florida Bar started 2010 by issuing guidelines on lawyer and law firm websites requiring compliance with the general lawyer advertising standards set forth in Rule 4.72. However, these websites do not have to be filed with the Florida Bar for review. The Florida Bar will not accept volutnary filings of websites to determine if they comply with the Rule, but instead will respond to speciifc questions. Many websites currently do not comply with the advertising rules in that they contain testimonials and endorsements from satisfied clients, past results and statements characterizing the quality of legal services.

The Standing Committee on Advertising will permit websites to contain a feature allowing the viewer to request specific information from the lawyer or law firm, such as results. This information is not subject to the lawyer advertising rules. A disclaimer page must be provided for the viewer and the requested information can be accessed only after the consumer views the disclaimer page. The Florida Bar has provided a sample disclaimer page at the FLorida Bar's website.

The Florida Bar's Standing Committee on Advertising also voted to treat social networking sites such as Facebook the same as it it were a website.

The U.S. Supreme Court is reviewing another Florida Supreme Court decision upholding an ordinance that permits the governement to replenish shorelines without compensating any affected private landowners. Florida's beaches have been replenished with sand for many years without allowing claims requesting compensation for loss of property. In this particular case, the property owners effectively lost 125 yards of beachfront due to the replenishment.

Preceding 15,000 delegates arriving in Copenhagen regarding carbon dioxide emissions and global warming issues, the United States Environmental Protection Agency declares carbon dioxide a pollutant thus subjecting those emitting carbon dioxide to regulation. The EPA also recently agreed to setting water quality standards for nitrogen and phosphorus. The limits are required to be set by October. Initially, the EPA was required to set those standards by 2004. Several groups brought suit against the EPA to require the setting of these limits arguing that the runoff from nitrogen and phosporus cause algae outbreak.

A Florida resident has filed a lawsuit seeking class action status regarding taxes AT&T has been imposing on its customers for accessing the internet through Blackberries, etc. The plaintiff is arguing that federal law prohibits states and local governments from taxing people for this type of usage. Other similar lawsuits are being filed around the country. AT&T has been billing over 9 percent monthly state for state taxes.

More large class actions are being filed and settled at the end of 2009. Amazon was sued in Seattle for improperly calculating hours worked by over 20,000 warehouse workers. The complaint alleges that Amazon rounded off the start and finishing time of these employees, effectively reducing their hours by 15 minutes of overtime pay each day.

With the filing of the class action suit against Amazon comes the settling of another class action filed by franchisees of Quiznos. Quiznos has agreed to pay $95 million to resolve the issues. 6,900 franchisees interested in opening a Quiznos in Colorado, Wisconsin, and Illinois are covered by the lawsuit. The complaint claimed that Quiznos overcharged for supplies, among other things. The settlement is pending approval by the Court.

Despite the economic downtown and reports that many clients are demanding reduced and discounted rates, the rates of the top billing attorneys in South Florida continues to rise, according to the Miami Daily Review. More partners are charging more than $500.00 per hour, with Mark Bloom of Greenberg Traurig charging the highest reported rate at $765.00 per hour. The Review also reports that industry experts report that alternative pay arrangements to hourly billing are becoming more common. The Review's study was not comprehensive finding much of their information from the bankruptcy court which requires attorneys to disclose their billing arrangements through fee applications.

The U.S. Supreme Court began their latest term with the recently appointed Justice Sonia Sotomayor. Many await to see her impact on the upcoming cases regarding restrictions imposed by the Fair Debt Collections Act regarding proper notices of foreclosures, whether a whistleblower in Federal Court can base his/her knowledge on State and local reports, whether the Federal Arbitration Act permits class action arbitration when the arbitration clauses are silent on that issue, whether a Court can enhance an attorney's fee award based on exceptional legal work, whether a handgun ordinance prohibiting guns within the city limits of Chicago is Constitutional, and whether minors can be sentenced to life improsenment.