It is a misconception that every personal injury case ends up in litigation and then goes to trial. In fact, a majority of injury claims are settled without the need for litigation and the vast majority are settled before getting to a jury trial.
In my opinion, most insurance companies want to settle car collision injury cases when there is clear liability and the injuries are real and demonstrable through diagnostic tests. However, we always seem to differ with valuation of a claim. That is, how do you put a dollar sign on an injured person’s case?
The variations of case valuation are too complicated to go into in this blog post, but when I value a case between $50,000 and $65,000 and make an initial demand of $65,000, I know we’re in trouble when the insurance company adjuster offers $5,000 as an initial settlement bid. Bridging the gap between $5,000 and $50,000 is almost impossible. You may as well authorize your attorney to file suit.
An insurance adjuster interested in settling a case worth between $50,000 and $65,000 would have started off with an initial offer of maybe $25,000 or $30,000. That offer warrants further discussion and negotiation and if I started out with a demand of $65,000, we can usually get to $50,000, which is acceptable to my client in this hypothetical case.
You see, a smart insurance company offers just enough money to make my client really think twice about walking away. “If they’re $5,000 under where I wanted to be, does it make sense for me to file a lawsuit when I’m at $50,000 and they’re at $45,000?” Usually not.
We personal injury lawyers are always amazed when we have a strong case with clear liability and injuries and the adjuster calls and offers 5% of what we all know the case to be worth. Every attorney has a “war story” when, for whatever reason, a case has a value of $100,000 and an adjuster offers $2,250.
That, my friends, is a no-brainer. File suit. That offer is an invitation to litigate by the insurance company. By entering into litigation, it usually gets this case out of the hands of a junior adjuster and into the hands of a more seasoned adjuster who is a litigation specialist as well as a defense attorney who are far more familiar with what goes into a case valuation.
In my opinion, cases are litigated when they have to be. When a client expresses a desire to put “a little more money in my pocket”, that’s a case worth working out and not litigating. When the last settlement offer doesn’t even pay the medical bills and leaves the client with nothing, those are the cases that need to be litigated and maybe even tried.
While most personal injury attorneys aren’t afraid of litigating their own files, a good personal injury attorney will look to maximize a client’s recovery whether after extensive pre-suit negotiations or in the context of litigation.
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Most people in Florida who are ticketed in connection with their vehicle – either a moving violation like speeding, or a non-moving violation like a parking ticket – really do not need a lawyer unless they plan on contesting the infraction in court. And even then, some people do fine in court representing themselves.
First, unless you’re an habitual traffic offender, there just isn’t that much at stake: a few points on your driver’s license and a modest fine. And if you opt to take the defensive driver’s course, you will even save the points on your license.
Does it pay to take the course? As an aside, most insurance companies will increase your premiums not based upon your driver’s license “points” but based on infractions. The point system is for the State to keep track of how many tickets you’ve had to see if your license should be suspended. But insurance companies don’t care about points – they care about instances. So, you pay off one infraction and then get another ticket soon thereafter. If you take the course to keep points off, you may only have 3 points against you from the first ticket, but your insurance company will see two infractions on your license and probably increase your premium. Conversely, if you haven’t been ticketed in a long time and then get pulled over for something, chances are your insurance company won’t increase your premium for this one incident (unless it’s a serious charge) regardless of whether or not you take the course.
Whether to contest a ticket is most always a business decision. If you’re looking at a small fine and a pretty solid case of running a red light, do you really want to take a morning off from work to go to court and contest what is a pretty clear case of running a red light? And it may be on video as evidence against you. Even if you do and even if you lose, in most cases, the only additional penalty that you may face in addition to points and a fine would be court costs of another modest amount.
If you didn’t commit the offense and really want to contest this as a basic injustice, I understand. At this point, I always think it’s better to have an attorney than not, but if you don’t the judge will let the State present its case against you and then you have a chance to defend yourself. You can cross-examine the officer who ticketed you. The State has the burden of proving its case “beyond a reasonable doubt” so all you need do, is cast just a little bit of shade on the State’s case and the judge may give you the benefit of the doubt. But beware of things like, eyewitnesses and video showing the infraction – these can go a long way to show guilt of the infraction.
By the way, if you get to traffic court and the ticketing police officer doesn’t show up, you can ask the judge to dismiss the infraction since the State cannot prove its case against you without the ticketing office being present. This might just work, or, sometime the judge might continue your hearing until the officer can be there in court. This sometimes depends on the severity of the charge.
Now the folks who need a lawyer desperately in traffic court are the fine folks who have, from time to time, been a menace on the road. They may have multiple points and are looking at having their license suspended if this most recent infraction sticks. It may be a very serious one-time charge of DUI, reckless driving or even vehicular manslaughter. Or the unfortunate person who drives for a living and was told if they get even one at-fault infraction, they might be terminated. Whenever the term “jail” or “prison” is bandied about, yes, you need an attorney and a good one at that.
Oh, and one last thing: For those who are fighting an already suspended license, do not drive yourself to Court. Remember, you have a suspended license and by showing up to Court driving a car you’ve broken the law. I cannot tell you how many times I’ve seen a judge deny reinstating a defendant’s driver’s license and the bailiff then follows the defendant out to the parking lot, where he or she gets into the car to drive away. You will spend a few days in jail.
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Every so often I get a call from a potential client who wants to litigate against someone for “defaming” them. The caller is generally spitting mad and wants blood. This is usually in the context where the client was the subject of some rant by some aggrieved party where he or she gets cursed at in front of a bunch of others.
Think of the homeowner’s association meeting or the school board meeting where somebody stands up and starts swearing up and down that you’re a no good so-and-so or that you’re a crook and probably stole a lot of money from the group.
Defamation comes mainly in two forms: slander (oral defamation) or libel (written defamation).
In order to maintain a viable claim for defamation an aggrieved party needs three things: 1. An affirmative misrepresentation of facts; 2. Publication of the statement to third parties; and, 3. Economic damages.
Now, as far as the affirmative representation of facts, let’s consider: It is not defamation to name-call – if I call someone a jerk, an idiot, a dope, a number of curse words, etc., that’s my opinion and it’s not actionable. There is where Donald Trump’s rhetoric comes in – almost all of his juvenile insults are just that, silly insults and are not actionable.
What is true defamation is when the name calling has some real legal meaning behind it, such as, You’re an: embezzler, or thief, or felon, or rapist, or perjurer, or child molester, etc. These terms are either provable as true or they’re a lie. Remember, truth is a 100% defense to defamation. So, if your town mayor is found to be a convicted embezzler, it’s okay to confide in others to further check this out.
The defamatory statements must have been “published” to third parties – this does not mean these words need to be in writing. It does mean that these false statements must have been spread around to others, orally or in writing. If I whisper in someone’s ear and call them an arsonist – it’s just between the two of us. No harm, no foul. If I call someone running for the Fire Department Board an arsonist at a public meeting, that’s a problem. Again, assuming it’s not true.
Finally is the difficult issue of proving economic damages. How does one valuate his or her personal reputation? How do you put a number on it? This question is no easier for a judge or jury. There have been cases where the Plaintiff won a defamation suit and the financial judgment awarded was $1, mainly for failure to prove an economic loss. After paying attorney fees, these Plaintiffs realize they won the battle of proving defamation but lost the economic war.
Now there is one difference here in Florida – If the defamatory statement goes to one’s business reputation, damages can be imputed – simplifying the burden of proof. So if the defamed party loses his or her job due to the slanderous statement, that’s an easy measure of damages – lost wages. If a restaurant owner sees his business drop off by 50% because someone maligned the restaurant owner as one who frequently serves up food with e-coli contamination, that’s a measure of real provable damages by loss of profits.
Mostly I discourage clients from suing defamatory speakers. It is generally cost prohibitive and after I send the speaker a “cease and desist” letter, there is almost an immediate abatement of the obnoxious behavior. And generally the one who loses his or her cool and starts maligning others in public are considered to be the big jerks in the room anyway.
I had my own personal experience a few years ago when a certain addle-brained lawyer started maligning me to every lawyer in town stating that I had “ripped him off”. Now that wasn’t true and I could have pursued it further, but given this speaker’s existing reputation, his difficulty with the truth and the fact that he was a known obnoxious jerk, a gigantic blow hard and a small minded idiot, I didn’t worry about it. I knew everyone would consider the source. And, by the way, none of those terms in my previous sentence are actionable.
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Most people reach a certain age and it’s unlikely that some part of their body hasn’t sustained some degree of prior trauma or degeneration. Remember that high school football injury to your knee 30 years ago? Yeah, it likely bothers you today – especially when the weather changes.
In fact, lots of people have either degeneration to a joint, like a knee or shoulder, or an area of their spine without even knowing it. It may be “asymptomatic”, or without symptoms. It’s just as a result of walking around for three or four decades and is normal wear and tear on the body.
So, when someone is in a car wreck and suddenly they hurt all over, often diagnostic tests reveal not only an injury, but also an underlying condition of degeneration or even arthritic changes. “But I felt fine!” True, but as your doctor and attorney know, some of the damage was already done. That’s why you so feel so crummy – you hurt from the collision but also your body is reacting to what had been simmering for years.
Does that mean I don’t have a case for the injuries I got in this bad crash? No, of course not. In order to maintain a claim for injuries against someone for a car crash case, you must demonstrate that you have a “permanent injury” directly related to the crash. Well, actually, your physician must demonstrate that because no insurance company is going to take your word for it.
Now, in Florida, a lawyer can maintain a claim for a permanent injury which is defined as: (1) death (duh!); (2) any physical scarring; and, (3) virtually anything else that a physician discovers. Most clients fall into the third category of “everything else”.
An exacerbation, or worsening, of a prior injury isn’t technically a permanent injury; it’s basically stirring up what was already there. However, a good physician will be able to tell through x-rays, CAT scans or MRIs as well as a physical examination if there is any worsening of a prior medical condition. After all, once a body part has sustained an injury, it’s only logical that a compromised body part is highly susceptible to being worsened by another trauma.
So, just because the aging process tends to wear us down, injuries from a recent trauma are generally separate and apart from the degeneration that may have taken place. Do not let that deter you from seeking justice for your situation. The laws of entropy may be a nag, but it doesn’t take us out of the claim.
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Well, yes, you should call someone, but be very selective. Tell only those people you know and absolutely trust. Obviously, your spouse should be first on your list, but despite your obvious elation, keep your circle of confidants close. I had one client who didn’t tell his adult children he won the lottery for weeks.
Your next call should be to someone who can help you navigate the complexities of lottery collection and protection of your newly discovered wealth. Whether you won $300,000 or $30 million, if you’re not used to dealing with wealth on a daily basis, getting help early on is essential.
When I’ve been called, I immediately meet with the winning family and together we plan a strategy for wealth protection. I essentially act as a financial quarterback. What pitfalls are out there? Do you have any outstanding debts or judgments? Do you owe back taxes? Are you being sued?
Next April when you file with the IRS, the award won today will really affect your tax return. You’re probably going to be in the highest tax bracket, currently 39.6%! The Lottery officials will withhold a good bit of your winnings for federal taxes, but it is never enough to fully compensate the IRS for your windfall when you file next year. Are there ways to defray that? We’ll meet with an accountant to determine the best way to minimize your tax liability.
Should you take the money as individuals, or would it be to your benefit to establish a trust or corporation for organized management and centralized growth as well as liability insulation? All of these are questions that need to be resolved before ever claiming your prize.
That’s right – all of this should be done before you ever redeem your winning ticket in Tallahassee. This is why most winners wait a good amount of time before turning in their ticket, because once that is done, a press release will go out disclosing your identity and city of residence. You cannot collect your winnings anonymously. This is why doing your homework beforehand can be enormously helpful.
All lottery winning tickets in the amount of $250,000 and up must be presented in person at the Tallahassee Lottery Headquarters. As part of my retainer, I accompany my clients to HQ since this too, can be tricky. Lottery Headquarters officials will ask many questions of clients regarding placement of funds and if unprepared many clients simply will not know how to answer.
Once everything is in place and the winnings have been collected, then the real work starts. What do you want to do with your wealth? We’ll meet with a team of financial advisors to assess the best way to allow you to spend some money, set up your estate needs for future generations, and preserve enough money for you to grow and benefit you in the future, whether retirement is 10 years away, or 10 minutes away.
So, as my recent lottery winner said to me when we were finished setting everything up: “I never knew having money could be this much work!” Don’t try to do it alone. And hire someone who knows what he or she is doing. Good luck and congratulations!
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