Frequently Asked Questions
Please find answers to common questions below:
Most contracts for professional representation regarding personal injury claims are in the form of “contingency fee” contracts. The Florida Supreme Court recognizes that most people who are injured as a result of someone else’s negligence simply cannot afford the substantial cost of representation and pursuing a legal claim for damages. Accordingly, it is proper for a lawyer to represent people who are the victims of negligence based on being paid a percentage of any recovery made. And while it is not permissible to lend a client money (lawyers must avoid even the appearance of impropriety), lawyers are entitled to “front” or advance the costs of pursuing such claims. Click here for an exemplar of our Personal Injury Contingent Fee Contract.
“Costs of litigation” are in addition to fees. Costs of litigation include expenses for obtaining medical records, witness statements, evidence, investigators, court reporters, deposition transcriptions, retaining expert witnesses, postage, copies, long-distance billing and the like. We will be reimbursed for any such costs we advance in pursuing your claim, after our standard fee percentage is paid. You are entitled to and will receive an itemized statement for all costs that we have incurred and advanced in pursuing your claim.
The Florida Supreme Court has approved an explanation of your rights under a contingency fee contract. That document is entitled “Statement of Clients’ Rights”, and will be provided to you prior to your signing our standard Contingency Fee Contract. You will be asked to sign this document at the bottom, only to verify that you are receiving a copy of that document, as well as an explanation of your rights under our contract. Click here for an exemplar of our standard Statement of Clients Rights.
Florida law provides that all of your medical records are protected by the patient-physician privilege, and even your attorney cannot obtain those records without your written consent. Accordingly, we will ask you to also sign several copies of our pre-drafted HIPAA Authorization, which will enable us to obtain your medical records from all treating physicians, which are absolutely critical to proving your case. The importance of your medical records will be discussed later. Click here for an exemplar of our standard HIPAA Authorization.
While your lawyer has very substantial rights pursuant to your contract for professional services, you remain in charge of your case. It is, after all, your case! Accordingly, you can change attorneys, if you believe it to be in your best interests. Your prior attorney will most likely be entitled to be paid (out of any recovery) for the services that he/she has provided for you (as well as be reimbursed those costs advanced in your behalf). However, you have the right to change attorneys if you deem it in your best interests. Of course, you should make sure that your new lawyer is aware of the prior representation, and make sure that the new lawyer agrees to represent you based on a sharing of the standard percentages for such cases. If you insist on your new attorney agreeing as such, the new representation will not cost you any more fees, as the old and new lawyers will be paid only out of the standard fees. Of course, all of this must be in writing. Finally, if you do not understand any aspect of your attorney’s fee contract, absolutely do not sign it!
Whenever a person is hurt, there are many different and substantial effects upon the life of the injured person. First, as has been briefly discussed above, the injured party must make the decision on whether they can or must continue to work. As covered above, that is a decision that you must make with your physicians, your employer, and your family.
Another very important factor is how to replace your vehicle while it has been damaged, or if it has been declared a total loss. What has not yet been covered is what statements you should or should not make. It is our experience that you absolutely should not discuss the merits or aspects of your claim with anyone unnecessarily.
Unfortunately, when it comes to money, people sometimes do very strange things, and the easiest way not to have to explain a comment you might have made which has been taken out of context, is to simply not make such comments. You may be requested to give sworn statements to an insurance company, whether it is your insurance company or the person at fault causing your injury. It is our advice that you do not give any such sworn statement outside the presence of your attorney. Insurance adjusters sometimes ask questions which the untrained injured victim does not understand, and mistakenly gives an innocent response which, later taken out of context, causes great damage to their claim. Further, it has been our experience that sometimes unscrupulous adjusters twist your words or get you to say things that are not entirely correct, again which will be held against you later. Again, the best way to avoid having to explain such comments is simply not to make them.
Another very important issue that you must realize is that if you are claiming physical and/or emotional damages, your previous physical/emotional condition becomes an issue, and the Defendant in the case is entitled to all of your medical records, and, in addition, all relevant information regarding your medical and emotional condition prior to this injury.
This brings up a couple of crucial points:
First, it is absolutely required that you do not miss any of your doctors’ appointments. As the defense is entitled to and will obtain all of your relevant medical records, if you miss some of your appointments, those “no-shows” are included in your chart. Invariably, a Defendant will argue that you are not really hurt as badly as you claim, for if you were, you would certainly make your doctors’ appointments. Accordingly, if you must miss an appointment, it is imperative you contact your physician before your appointment, and explain why you must miss the appointment. That explanation should be included in your chart, rather than simply marked as a “no-show.”
Next, it is equally crucial that you make all of your treating physicians aware of any and all previous injuries and conditions. It is our experience that insurance companies always argue that they should not pay all of the damages for your condition, as your problems were really caused from some previously existing condition. While this is usually an argument that can rebutted, it is incredibly difficult to overcome the appearance that a person claiming personal injuries is being untruthful about those injuries by “lying about or covering up” previously existing conditions.
Florida law absolutely recognizes that you are entitled to compensation for any exacerbation or worsening of any previously existing condition caused by this incident. What is crucial is that you are truthful in disclosing any such previously existing conditions.
Unfortunately, some of our past clients have failed to disclose a previous accident or slip-and-fall or workers’ compensation claim or injury of some kind, only to have the defense learn of them through some past medical record, and this omission by the injured party has cost them tens and tens of thousands of dollars. Accordingly, it is simply crucial that such conditions be disclosed to every doctor (as well as to your lawyer).
All personal injury lawsuits are comprised of two separate and distinct issues- Liability and Damages. Because you are the Plaintiff (person bringing the claim), you have the burden of proof. Unlike criminal cases where the Government has the burden of proving its charges beyond and to the exclusion of every reasonable doubt, in civil cases the burden is only by the “greater weight of the evidence”. However, because the plaintiff brings the claim, the plaintiff must always meet that burden.
Liability is a legal term, which simply means “fault.” If someone is liable for causing some event, it means that they are legally responsible for paying the damages that are reasonably caused by that liability. Liability means that the Defendant did something that in the exercise of reasonable care it should not have done, or, in the alternative, the Defendant failed to do that which in the exercise of reasonable care it should have done.
Before any damages are recoverable, the Plaintiff must first prove that the Defendant is liable for the event giving rise to those damages. If you cannot establish liability on the part of the Defendant by the greater weight of the evidence, damages are completely irrelevant, and you lose the case. It is therefore obvious that the ability to prove liability is of paramount importance.
Liability can sometimes be a complex and technical issue that is beyond the scope of what can effectively be explained here. Therefore, while there are many, many cases in which there are multiple Defendants, for the purposes of this brief introduction, it will be assumed that there is only one Defendant in any given case.
Liability means legal responsibility for causing the Plaintiff’s damages. This can be from doing something that the Defendant should not have done in the exercise of reasonable care, or, alternatively, by failing to do something that the Defendant in the exercise of reasonable care should have done.
Not long ago, the Florida Supreme Court established what has become known as the “Fabre Doctrine”, which is a method by which a Defendant may attempt to blame all or part of your damages on some other person or entity, a non-party to the lawsuit, thereby avoiding being forced to pay all or part of your damages. It is important that you ask your attorney to explain the “Fabre Doctrine” to you, as well as its possible application to your case.
Florida law also provides that your damages will be reduced by any percentage of fault that the jury assigns to you for contributing to the event causing your damages. This used to be called “contributory negligence”, and is now referred to as “comparative negligence.” Comparative negligence is a very important legal principle, especially in “slip and fall” type cases. This is because it is almost always claimed by the Defendant that if the Plaintiff were paying attention to where and how they were walking, they would have avoided the hazard that “allegedly” caused injuries to the Plaintiff. If the jury agrees, then the Plaintiff’s damages are reduced by the percentage of fault that the jury assigns to the Plaintiff. In automobile negligence cases, failure of the Plaintiff to wear an available seatbelt is another typical claim made by Defendants of a Plaintiff’s comparative negligence.
If you are successful in proving liability, you then must also prove your damages by the greater weight of the evidence. No matter how negligent (or liable) the Defendant may be, if there is no evidence of damages, the Plaintiff is entitled to nothing. Part of the Plaintiff’s burden is proving that the damages sought are a direct and proximate result of the Defendant’s negligence. The damages sought must be specific, and must not be speculative, or the product of guesswork. Damages in personal injury cases can be any or all of the following:
- Property damage
- Medical costs
- Future medical expenses
- Lost wages and/or the loss of the ability to earn money in the future
- Pain and suffering
- Loss of the enjoyment of life
- Loss of consortium (if the Plaintiff was married at the time of the injury).
Property damage is the damage that was caused to your vehicle and/or its contents as a result of the Defendant’s negligence.
We do not typically get involved in negotiating this loss with the Defendant’s insurance company, mainly for the reason that if we take our standard percentage fee for those services, there is very little left for the client to use to replace the vehicle that was destroyed in the collision. Unfortunately, our experience is that insurance companies usually offer very little to replace vehicles that their at-fault insureds have destroyed, because they know that you cannot afford to spend a year or more litigating that aspect of your claim without a vehicle. They know that we all must have a vehicle to survive, and that few of us have the funds to obtain a replacement vehicle without the insurance money from the person responsible for destroying our vehicle.
Our experience is that you should negotiate property damage separate from your personal injury claim, however, we will fully discuss with you the best way to accomplish the fairest property damage settlement possible. However, it is of the utmost importance that you obtain a full set of color photographs of all of the damage to your vehicle before it is repaired (or destroyed). These photographs may have an incredibly important effect on your claim for personal injuries. This is especially true if there are substantial damages to your vehicle. If so, the Defendant will have a much more difficult time arguing that you were uninjured in a crash of such force.
If your case is one of soft-tissue damages only, the Defendant will always argue that you really have not suffered a permanent injury, for reasons we will explain below. Accordingly, the damages to your vehicle (or lack thereof) may play a crucial role in the ultimate outcome of your personal injury claim.
It is important to understand that the Property Damage portion of your claim can be settled without affecting the remainder of your claim. It is crucial, however, that any check and any release you sign specifically provide that the settlement is for property damage ONLY! Fully discuss this issue with your lawyer before agreeing to anything regarding any claim for property damage.
Lost wages are a very important element of damages, especially if the subject claim is one involving primarily “soft-tissue injuries.” “Soft-tissue injuries” can be very problematic and difficult, and those particular problems will be explained in a little more detail later.
The point is that the defense will certainly argue that you are not really hurt if you are well enough to perform the requirements of your job. On the other hand, if you do miss work, the defense will portray you to the jury as a malingerer, one who is “choosing” to sit out from work, only to make your claim seem worse than it really is.
Our experience is that juries also send out mixed messages on this issue. While juries do like people who work, and tend to respect a Plaintiff who is a hard worker, juries are traditionally very hesitant to award any substantial damages where the Plaintiff has not suffered substantial out-of-pocket losses. Be sure to talk with your lawyer in detail about this issue as it relates to the specific circumstances of your case. The answer is always to tell the truth, and if you must miss work, do so.
On the other hand, we advise all of our clients that if you honestly can work, then do so. Always tell the truth. We defer completely to you and your doctors on this issue. Only you really know your capabilities. However, this brings up another issue that often occurs in personal injury cases which cause many injured people trouble.
Very often personal injury clients will be advised by their doctors that they should not work, however, not to work would render the client unable to support themselves and their family. When this occurs, we again defer to you. We believe that the outcome of any lawsuit is speculative at best, and we always advise our clients to “run your lawsuit around your life, do not run your life around your lawsuit.” If you must work to support your family, even if it is against your doctor’s advice, you must do that which is necessary. We believe that a jury will probably understand and respect you for it. On the other hand, if you simply cannot physically perform the duties of your job, then don’t.
Medical expenses are another crucial element of personal injury damage claims.
In motor vehicle collision claims, if you or the vehicle in which you were riding had PIP (Personal Injury Protection) insurance, a percentage of the first $10,000 (usually) of your medical bills will be paid by that policy, even if the collision was not your fault. It is therefore important that you immediately notify your insurance (PIP) carrier as soon as possible after the collision (preferably after you have hired a lawyer to guide you through this process). After the PIP insurance is exhausted, you can make a claim on any applicable health insurance coverage to help pay those bills. This will be explained in more detail when you retain competent counsel to represent you.
You should always make all of your doctor’s appointments, and if you must miss an appointment, phone your doctor before the appointment time and explain why. Otherwise, your medical chart will simply reflect that you were a “no show”, and the defense will argue that you are not really hurt, or you would have made your scheduled doctor’s appointments.
On that note, it is your doctor who will determine the value of your claim, and you must therefore be very thorough and complete when advising him or her about your injuries. Once again, you should ALWAYS tell the truth. However, you MUST make absolutely certain to convey to your doctor in very certain and specific terms the truthful, exact nature of all of your pain.
If the at-fault vehicle or driver had Bodily Injury insurance coverage, any settlement will occur only at the end of your claim, and until then the bills not paid by some type of your insurance (PIP, health insurance, workers’ compensation, ect.) will need to be paid by you, or go unpaid until your claim is totally resolved. In other words, the Defendant’s insurance company will not pay your medical bills as they accumulate. Be sure to talk specifically and at length with your attorney about what to do if your medical bills exceed your available insurance coverage.
Obviously your injuries are the most important element of your damages. As stated above, your doctor is the most important factor in determining this element of damages. The most important aspect of your injuries is the determination of whether your injuries are permanent or not. Under Florida law, if you do not suffer a permanent injury or significant scarring from a motor vehicle collision, by law, you are not entitled to damages for pain and suffering, loss of enjoyment of life, or emotional anguish. This is explained below in a little more detail.
Perhaps no other area of personal injury law has been the focus of more attention in recent years than the soft-tissue case. This is true especially where the Plaintiff suffers from no disc herniations, and has submitted to various tests which do not show “objective” signs of injury.
While all of the available medical literature indicates that there is no particular test which can completely rule-out whether someone has actually sustained a “real”soft-tissue injury, Defendants heavily rely upon certain tests to advance their claim that the Plaintiff has not suffered a permanent injury.
Under Florida law, if a Plaintiff has not suffered a permanent injury or significant scarring, they are by law NOT entitled to any damages for pain and suffering, loss of enjoyment of life, or emotional anguish, which can be substantial aspects of your claim. In other words, if the jury finds that the Plaintiff did not suffer permanent injury or significant scarring, then by law the only damages the Plaintiff could collect are out-of-pocket medical expenses and lost income actually suffered in the past, and which will be suffered in the future.
Often, the lost income and substantial portions of the medical bills have been paid by PIP and/or health insurance, and, therefore, there are simply no damages that the law permits the Plaintiff to collect if the jury finds no permanent injury. Further, Florida law allows the Defendant to have performed on the Plaintiff an “Independent Medical Examination”, which is explained in more detail later.
The point is, it is a virtual certainty that the results of the Independent Medical Examination will be that the Defendant has procured a medical opinion has not suffered a permanent injury, and, in addition, needs no future care. The crucial point to remember is that our experience has been that juries are very, very suspicious of soft-tissue injuries, especially when the property damage to the vehicles is minimal (indicating only a slight impact), when there are no substantial lost wages, and when the Plaintiff does not have substantial objective testing confirming the injuries claimed in the lawsuit.
All of these factors are crucial in determining the value of any personal injury claim. However, where juries are presented with evidence of substantial lost income, substantial medical bills, substantial property damage, and objective tests confirming permanent injuries, there is a potential for a substantial jury verdict, and the value of the claim is correspondingly affected. However, depending on how soon after the incident you hire your attorney to represent you (it is always best to hire your attorney as soon as possible), it is increasingly difficult to evaluate your claim.
If you are wise enough to retain counsel very quickly after the incident causing your injuries, your attorney cannot yet evaluate your claim, because your attorney cannot know what the objective tests will determine, whether you are going to suffer from a herniated disc or simply “whiplash”, whether your physician will have an opinion as to whether or not you have suffered a permanent injury as a direct and proximate result of this incident, all factors which carry great weight in determining the value of your claim.
The bottom line is that the values of claims in which there is little property damage, no positive results of any objective testing, no unpaid medical bills and little or no lost wages, the settlement value of such claims usually varies between zero and $5,000.00. On the other hand, generally speaking, if there is great property damage, substantial positive findings from objective medical tests, and, in addition to that, substantial lost wages and unpaid medical bills, the likelihood of that type of case having a settlement value in excess of $10,000.00 or $20,000.00 is substantial.
Most people are very disappointed to learn that they have been injured in a manner that continues to bother them and cause them great discomfort, and their physician informs them that there is a permanent condition from which they will suffer from the rest of their life, only then to learn that their claim is worth $5,000.00 or less. The reason for this is simple. While this is probably the only such case that you have in your life, the insurance companies have thousands and thousands of these cases. They know that juries are most suspicious of personal injury claims where there is little property damage, little or no lost wages, no objective findings from any medical tests, especially where another doctor (the insurance company’s “Independent Medical Examination” doctor) comes to testify that they cannot find any objective reason in the world that you are claiming the injuries that you are claiming.
A great many of these cases are being tried, and a substantial percentage of these cases are rendering jury verdicts for the defense, meaning that the Plaintiff receives nothing. When this is combined with the law regarding Offers of Judgment and Proposals for Settlement (which will be explained in more detail later), the end result is that the settlement value is simply very small.
The law provides that a person who is injured is not entitled to collect twice for any injury. Sounds simple doesn’t it? It is not. This means that if the jury were to award you $8,000 in medical bills, but your PIP insurance has paid $7,000.00 in benefits, then you would be entitled to a Judgment for only $1,000. That is what is called a ëset-off”. The Defendant is entitled to a set-off for benefits paid for your medical care which do not need to be paid back, such as PIP benefits. What is more confusing is that the jury may not even be aware that such benefits were paid. If not, then the Judge will deduct those benefits paid after the jury has awarded them. Discuss this issue fully with your lawyer within the context of your case.
“Collateral sources” are sources of payment for bills or lost wages which may be entitled to reimbursement. For instance, if you have $12,000 in medical bills, and if $9,000 had been paid by your health insurance carrier, then that carrier may have a “lien” on your claim for that amount. This means that your carrier has the right to be reimbursed out of your claim for the amount of benefits provided to you. These concepts are very important to understand when considering whether to settle your claim. It does not matter that you “get” a $50,000 settlement if you only will take home $1,000 after attorney’s fees, costs, and liens are paid. Discuss these issues fully with your lawyer within the context of your case.
“Letters of Protection” are very often a necessary part of your claim, which again may decrease your net recovery. Very often your medical bills will exceed available insurance coverage. The only way that doctors will continue to treat you is for your lawyer to provide to your doctor a “letter of protection”, which insures that your doctor will be paid for his medical services out of the client’s portion of any award. In this sense, letters of protection and liens are very similar. Both repay others out of your award for either insurance benefits or medical services that were provided to you in your case. As you can easily see, set-offs, collateral sources, liens and letters of protection can drastically reduce your net recovery, and they must be understood within the context of your specific case. You simply must fully discuss these concepts with your attorney, and understand them regarding the way that they may affect your recovery.