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Insider Secrets


  • pg 1
									 20 Insider Secrets
For Finding the Best Florida Personal Injury Attorney
Find out why the American Tort Reform Association calls Florida a
 “Judicial Hellhole” and what this means to your personal injury case.

                  Talk intelligently to your attorney
  1       Why has Florida been called the #1
         “Judicial Hellhole”by the American Tort
         Reform Association?

The American Tort Reform Association (ATRA, 2010) reported that there are 6
states which qualify as “Judicial Hellholes”; the state of Florida is #1. ATRA’s
report says that “Judicial Hellholes are places where judges systematically apply
laws and court procedures in an unfair and unbalanced manner, generally
against defendents in civil lawsuits”. According to the Center for Justice and
Democracy (CJD, 2010) the reality is that ATRA is an organization supported by
major businesses and Fortune 500 corporations in order to “…take away
consumers’ legal rights…[using]…no actual or scientific data”. It lobbies for
immunity when these corporations break the law.

 2       What does this mean to a Florida plaintiff
         with a personal injury lawsuit?
ATRA accuses Florida of having a “crony” system; it states that justice is
dispensed by whom you know rather than being fair and equitable. The reality is
that the Florida court system is still one of the few places in the country that is
really willing to listen to the “little guy”.

This does not, however, mean that the odds are stacked in the plaintiff’s favor.
The plaintiff still needs to seek counsel; especially counsel that is familiar with the
tremendous “tort reform” pressure being exerted by organizations such ATRA.

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         How do you know if you have a valid
   3     personal injury claim?

The only way to truly know if you have a valid claim is to have a consultation with
a reputable personal injury attorney. They will evaluate your situation by
considering the whether you can prove the following:

      Whether you have an injury that has medical documentation
      Whether the party you wish to sue was negligent in the situation leading to
       your accident
      Whether the party you wish to sue caused your injury through negligence
       in the accident

Since medical documentation is very vital to the successful outcome of your
case, seeing a doctor right after an accident will go a long way to prove your
injury is indeed real. Medical documentation also includes all the visits required
to treat your injury.

Eye witness accounts of the accident are also vital elements that will fortify your
case; it is best to have someone gather this information at the scene or as soon
as possible afterwards.

Note: Florida has a 4 year statute of limitations on personal injury claims;
however, it is still very important that you prepare for the possibility of a personal
injury claim immediately following your injury. Your case will be weakened if it is
not documented from the start.

   4      Why will an attorney turn down a case?

A reputable attorney will turn down your case for a number of reasons:

      Your case does not indicate sufficient negligence from the party you wish
       to sue.
      There is little or no possibility that you will experience any monetary gain
       from the party you wish to sue (e.g. in the case of an unemployed,
       uninsured motorist with no assets).

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       The attorney does not want to waste your time or energy because the
        case is weak; e.g. you did not adequately document the case or you claim
        is vague.
       The attorney knows that other counsel will serve you better.

5         What Constitutes Negligence?

Breach of the “Duty of Care” is required to establish negligence. “Duty of Care”
describes the responsibility a reasonable person has to keep another person out
of harm’s way; especially when that reasonable person is aware of the possible
harm that might result to an innocent party. Negligence arises when an
individual does not do what a reasonable person should do to prevent harm.

To be successful in a case of negligence, you must prove four things:

       The party you intend to sue had a duty of care towards you
       The party you intend to sue has failed to provide the required duty of care
       The negligence that occurred led to your injury
       The injury is documented

Types of negligence include:

       A motor vehicle accident caused while texting on a mobile phone
       Exposure to toxic materials
       Nursing home negligence
       Medical malpractice
       Defective products
       Slip and fall injuries created by an unduly hazardous environment

          Can you still be compensated for injuries in
 6        cases where you are partly at fault?

Comparative negligence must be established. This means after hearing a case,
the jury decides how much blame to assign to each of the parties. If you are
found to be 50 percent or less blameworthy, you will still be able to recover
damages. It is up to your attorney to convince the jury that you are 50% or less
responsible. Compensation is based on the percentages of blame assigned.

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Florida court systems follow the “pure comparative negligence” rules. These
state that the judge or jury will hear the case from both sides and then
subsequently decide the percentage of blame and compensation. Under these
rules, it is still possible to be 99% responsible and yet still obtain some
compensation if you hire a competent attorney. Thirteen other states follow the
“pure comparative negligence” rules; others follow either the 51% or the 50%
modified rules. These latter two methods will cap a plaintiff’s compensation.

          What should you bring to                                your first
  7       personal injury meeting?

You will be able to have a more productive meeting with your personal injury
attorney if you prepare for the meeting. Your attorney is more apt to initially view
your case seriously if you are organized and present strong evidence.

Here are some things you should bring:

      Medical records including any photos of the injury and how it is being
      Police reports that document the negligence; it may include the police
       officer’s opinion on who is at fault
      Any bills sustained because of the injury including but not limited to
       medical and hospitalization costs
      Estimated future costs in the event your injury takes a long time to heal or
       remains unhealed
      Pay stubs to document lost wages
      Documentation of impact to your family including but not limited to
       caretaker expenses
       Insurance information

Do not under estimate the value of arriving to your first appointment prepared;
statistics from a 2005 study show that cases prepared from the start had a 23
percent higher probability of winning and gaining the desired settlement.

         What should you do after sustaining an
  8      injury?

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It is best if you or witnesses to your accident can document as much detail as
possible. Documentation includes:
      Take photos of the accident scene from many different perspectives; this
       is easily accomplished because most mobile phones have built-in
      Record eyewitness perspectives. Take down the name and phone
       numbers of witnesses.
      Record the time and place of the incident.
      Call police and emergency personnel if appropriate.
      Take photos of your injuries as they unfold; e.g. bruises.
      Keep accurate records of doctor visits.
      Keep accurate records and notes about how the injury impacts your life.
      Contact a reputable personal injury attorney.

          How can you recognize a reputable personal
  9       injury attorney?

A reputable personal injury attorney will not take on your case if it does not have
merit; i.e. a claim that has little or no basis for making a claim and will not be
worth your time and energy (in terms of compensation).
Find out whether your attorney has more experience representing claimants or
defendents. As the claimant, you will want to have someone on your side who
does not traditionally take on an insurance company’s point of view.
Before attending the first consultation with a personal injury attorney, determine
whether there will be a charge for the visit. If there is, it is better to find another
attorney, since most personal injury attorneys will not charge for the initial visit.

          What to ask your personal injury attorney at
 10       the initial consultation?

It is wise to take an active role right from the start; it is best to view your personal
injury attorney as a partner with the same goal in mind. Thus it is very important

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to ask relevant and intelligent questions to help you decide if the attorney is a
“right fit and get the case started in the right direction. Questions that you have
will not only reveal a lot about your attorney, they can help your attorney discover
more information about your case.

Here are some sample questions to ask:

      Have you ever handled a case like this or similar this case with this kind of
      If the answer is affirmative, ask the attorney the following: how much
       compensation for negligent damages wasrecovered in the similar
      How many years experience do you have working with personal injury
      What is the probability of winning a case such as this?
      What are the next steps involved in filing this lawsuit?
      What is the typical timeframe for resolution of a case such as this?
      How much will you charge for your services?
      How do you plan to prove the other party is negligent and liable for
      Ask the attorney if there is any experience working with the particular
       insurance company that might be involved with your case.
      Ask what percentage of the law firm’s business is involved with personal
       injury cases.
      Ask who will be handling the case. If the case will be shared, will it be
       shared by a junior member of the firm? If so, what percentage of the case
       will be handled by the junior attorney? What percentage and what
       portions will be handled by a paralegal?
      Ask about the laywer’s settlement goal. Discuss an approach that is right
       for you; e.g. getting the biggest settlement for the least amount of time and
       cost, getting something beyond what an insurance company has already
       offered, or going for the most money no matter how long it takes.
      Ask what the fees will be. If these are agreeable to you, ask that the fee
       agreement be written down and signed by both you and your attorney; this
       will prevent misunderstandings down the road.

These questions will also demonstrate that it is likely that you will be a competent
“partner” who will help move the case along; this can help the attorney win the
compensation you seek and deserve.

 11      Paying your attorney

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Sustaining a personal injury often involves loss of wages; it is nice to know that
most attorneys are paid via a contingent fee. This payment arrangement means
that the attorney will absorb the risk of having to win the case. The attorney will
not charge the client unless the case is won. This is a very important and valid
reason why attorneys must be very careful about the types of cases they take. In
return for taking the risk, however, the attorney will be entitled to a percentage of
the settlement. This will be in addition to any expenses incurred during the
process of creating and presenting your case. Expenses include paying staff to
investigate your case and other costs incurred by the attorney’s office to
negotiate your case

Contingency fees are typically 33-40% of the settlement. You can ask your
attorney if combination fees (i.e. hourly and contingent) can be arranged;
particularly if you feel the case may be settled quickly or the amount of the
settlement will not be worth paying the 33% fee. It is also important to find out
whether the contingency fees are calculated off the total settlement or after the
fees have been subtracted. Additionally, find out who will pay the costs if your
case is lost. If your attorney is reluctant to take the case because your chances
of winning are low, you may consider paying agreed upon costs upfront.

 12      What is a structured settlement?
A structured settlement is often awarded when it is not possible to gain a lump
settlement. Often a certain but smaller percentage of the settlement will be given
and the remainder will be paid out over an established period of time; the
payments may end up stretching out over a long period. This is not necessarily a
bad thing; it is well known that 33% of individuals who are awarded lump
settlements spend it all within the 60 days following receipt of it. It is also possible
for your settlement payments to have tax advantages that will save you up to
20% over the lump settlement.

 13       When should you settle?

Settling a case will depend on how quickly you need the money and how well the
negotiations are going. You will need to consider whether it is worth forging
forward in terms of the expected gain and the expense in time, money and
energy to obtain it. You should seriously consider your lawyers
recommendations. An ethical attorney will not try to settle just because other
more important cases are calling.

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 14      Deciding when to go to trial

As long as you are in the negotiation phase, the insurance company that you
intend to sue has no rights to contact you or interview you. When you are in this
negotiation phase, the expenses involved can be kept under control and
restricted. If the negotiations do not turn out to be productive, you and your
attorney may decide to file a lawsuit. Once the complaint is filed, the expenses
will be less predictable because your attorney will need to respond to the
demands made by the insurance company’s lawyers.

Discovery of the case facts can be accomplished throughinterrogatories or
depositions. Interogatories are less expensive and involve filling out and
returning questionnaires sent by each side of the suit. Depositions can become
quite costly; especially when large sums of money are at stake because the
defendents will want to interview every witness available. This will take up a lot
of attorney time. When smaller amounts of money are involved, it does not make
sense to extensively use depositions.

During the discovery phase, there will also be extensive requests for records;
e.g. from your doctor. In order to put pressure on the opposition, your attorney
will eventually have to set the case for trial. This is a written request from your
attorney to the court and is simple enough. You should be aware; however, that
many attorney fees go from 33% up to 40% once the case is set for trial. Be sure
that all other avenues are exhausted before setting the case in order to keep
your costs down; this includes making sure that all depositions have been made.
Once you go to trial, it is important that you can rely on your lawyer completely.

 15       How is compensation determined?

The person who is negligent is considered responsible for medical care, lost
wages, pain and physical suffering, disfigurement or any permanent disability,
loss of social experiences including those with family, loss of educational
experiences, and all the emotional damages caused by any of these issues. The
formula that the negligent person’s insurance company uses is to add up these
costs and to multiply them with a multiple of 1.5 to 3 for smaller claims and a
multiple of 5 for larger claims. Beyond this, continued loss of earnings are added
to the product that was calculated.

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                             The types of injuries of injuries sustained will be used to
determine which multiple is used. Types that are associated with more pain and
suffering will result in the use of a higher multiplier. Types of injuries include: soft
tissue injuries (e.g. sprains), hard injuries (breaking a bone), head injuries,
dislocation or separation of bones, wounds, and vertebrae injury.

It is better to have a medical doctor diagnosis your situation than to use an
alternative practitioner (e.g. chiropractors, acupuncturist); insurance companies
do not readily accept the opinions of these professionals. Be sure that your
doctor gives a precise diagnosis rather than a commonly used and often
exaggerated term such as “whiplash”. Such terms will weaken your case.

Use of medication and other treatments will substantiate your claim. Pain and
suffering is harder to prove, but if you do require psychological help to deal with
it, it will become part of the evidence for your case and should be compensated.

Other things that must be considered are lost opportunities, lost vacations, life
interruptions, and the possibility of permanent injuries.

 16       What can you expect at the deposition?
A responsible attorney will help the client to adequately prepare for the
deposition; a study in 2006 found that 83% of personal injury lawsuits were
dismissed because of inconsistencies found in the plaintiff’s deposition. Thus, the
opposition attorney will try very hard to find any inconsistencies. These should
not be a problem if you are prepared.
The deposition will not take place in court; it will be held in a place deemed safe
by both parties; usually this is a law office. Your attorney will be right at your side
during the whole process. The opposing attorney will also be there as well as a
court reporter to accurately record everything that is said.

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Here are some tips for the deposition:
      Be concise with your answers. Do not offer more information than
      Pause before answering questions since this will give your attorney a
       chance to stop inappropriate questioning.
      Do not lie; it will undermine your case.
      Do not give any openings for new lines of questioning.
      Remain calm; this will convey to the opposing lawyer that your case is

  17        What happens if the injured party dies?

When the injured party dies, the family left behind can file a wrongful death
lawsuit. The sole reason for such a suit is take care of the family. In such a
case, unemployment is not considered. Future earnings would be calculated on
future potential and based on previous wages. A personal injury attorney will be
able to help a family get compensation for the wrongful loss of a family member.

 18         Why not just use a regular attorney?

An attorney with experience in your particular type of case will increase the
probability of a successful outcome. Personal injury attorneys are highly
specialized and are best suited for your needs; especially if you go to trial.

          Should I use a smaller private injury
  19      practice to save on fees?
A personal injury attorney must be stable enough to withstand long periods of
time without getting paid; all the while incurring expenses for expert witnesses
and so forth. A practice that has some experience demonstrates that they have
“staying power”. Smaller companies may or may not be able to handle the case
loads needed to stay solid. Ultimately, it is not the size of the firm that counts as
much as the strength of the firm.

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           How can I be sure I’m not getting ripped
  20       off?
Choose a company that demonstrates that it will go to bat for you; e.g.finding a
private injury attorney who demonstrates good customer service. Such a firm will
show you that you are valued as a client. This will be demonstrated when your
questions are treated seriously and answered carefully. It is also demonstrated
in the initial conference when fees are openly discussed. The firm you choose
should be willing to experience your scrutiny; if not, then it is best to find a firm
who will.

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