Miami Accident Lawyer Blog

January 14, 2015

Getting Attorneys’ Fees in Injury Cases: A Double Edged Sword

We often think that in lawsuits of any kind, including injury cases, that attorneys’ fees are automatically awarded to the prevailing party. But in our system, attorneys’ fees are only awarded where there is a contract or statute providing for them.

In ordinary negligence cases, there is no provision for attorneys’ fees. A jury cannot award attorneys’ fees and a defendant is not obligated to pay them, even where the defendant was found liable by a jury.

But Florida has a unique fee-shifting statute that can be used to obtain attorneys’ fees. The problem is that it can also be turned around, and used to make injured victims pay the fees of negligent defendants.

January 9, 2015

Malpractice or Products Liability? The Distinction Can Be Important

by Gerson & Schwartz, P.A.

We’ve written in the past about the importance of understanding what kind of cases are medical malpractice, and what kind are general negligence or products liability. A recent case has again discussed the difference, this time in a products liability context.

Why The Difference Matters

The difference is important because of the mandatory medical malpractice pre-suit requirements. Florida law puts significant requirements on a plaintiff suing for medical malpractice that aren’t required for ordinary negligence or products liability.

January 7, 2015

If You Win In Court, Can You Collect Your Judgment?

by Gerson & Schwartz, P.A.

If you are injured because of the negligence of another, you may begin to analyze your case with the more obvious aspects of an injury lawsuit. Was someone negligent? How? Were you injured? How badly?

But often overlooked is the issue of collectability. Collectability is your ability to collect a judgment that is entered in your favor. Being awarded millions of dollars can be an empty victory if the defendant has no funds to pay the verdict entered.

Collectible and Non-Collectible Defendants

January 2, 2015

What Can be Done About Lost or Destroyed Evidence?

by Gerson & Schwartz, P.A.

In many personal injury cases, a negligent defendant will be in possession of crucial evidence, often for a long period of time before it has to be turned over. This may include a product that allegedly malfunctioned, witness reports, or photos of an accident scene.

You may wonder what is to prevent a defendant, who knows he was negligent, and knows that a lawsuit may be coming, from simply “losing” or destroying crucial evidence? And if it happens, how does an injured plaintiff prove their claim?

Spoliation of Evidence

December 30, 2014

Are Police Officer Testimony and Accident Reports Admissible in Trial?

by Gerson & Schwartz, P.A.

If you are involved in a car accident, piecing what happened together can be difficult where there are disputed versions of how the accident occurred. Common sense may tell you that one crucial piece of evidence or testimony comes from the actual police officer that investigated the accident, especially if that officer gave a ticket and has an opinion about who was responsible for causing the accident.

But Florida law greatly restricts how and when information from a police officer can be used, and you may be surprised to learn that many aspects of an officer’s investigation may not be able to be used at trial at all.

Using Police Officer Testimony

December 24, 2014

New Case Broadens Corporate Representatives an Injured Party Can Depose

by Gerson & Schwartz, P.A.

In any injury lawsuit involving a corporation, taking depositions of officers of the negligent party is an essential part of winning a case. As you may imagine, most defendants are not crazy about having their employees and officers sit for deposition. But a new case makes the process much easier, and leaves less room for corporate defendants to evade depositions.

The Deposition Process

It has always been the case that a party can depose certain employees simply by noticing them.

December 19, 2014

Upcoming Workers’ Compensation Decision Could Have Effects on Access to Courts for all Injured Victims

by Gerson & Schwartz, P.A.

If you have been injured as a result of someone else’s negligence, it’s likely that you can find an attorney to take your case, regardless of your financial situation. That’s because unlike many areas, in personal injury, attorneys are often paid on contingency. That means that you don’t pay them until and unless you win or settle your case.

Contingency fee arrangements serve an important role for Florida consumers—they ensure access to courts. Someone who is injured does not have to worry about paying $100-$400 per hour for a qualified attorney, ensuring that even those with limited financial means can still hire the best attorneys in the state to represent them.

But an upcoming Florida Supreme Court case could put this fee system in jeopardy. It’s a case that Florida consumers should take an interest in.

December 17, 2014

Bad Faith Insurance Settlement Language Shouldn’t be Ignored

by Gerson & Schwartz, P.A.

If you are in an accident, and sue for your injuries, your case may not get to trial. In fact, few do. Many settle out of court, and when they do, there are settlement agreements to consider. In many cases, a settlement agreement may be exchanged early in the lawsuit process. Injury victims should be aware of what could happen if offers to settle injury lawsuits are exchanged before a lawsuit is actually filed.

A new case, Thompson v. Estate of Maurice, is a reminder of some potential problems that could arise in these cases.

Attempted Settlement Before Suit

December 12, 2014

New Appellate Change Could Have Unexpected Impact on Injured Victims

by Gerson & Schwartz, P.A.

Usually when the Florida Supreme Court adopts new procedural rules, they are of most concern to attorneys, and don’t have as much impact on injured individuals. The rules are procedural, and usually dictate how the lawyer must practice.

But the Florida Supreme Court has adopted a change to Florida’s appellate rules that’s worth noting because it could have an immediate and direct impact on injured victims who want to sue negligent government entities.

A Bit About Sovereign Immunity

December 5, 2014

Tragic Murder Tests the Boundaries of Liability for the Actions of Family Members

by Gerson & Schwartz, P.A.

Many families in Florida admirably and nobly care for children with mental disabilities, even into the child’s adulthood. Doing so can be a huge obligation, financially and emotionally.

Many of those children may have disabilities that make them dangerous. What responsibility does a parent of a dangerous adult child have towards others? And if you’re injured by an adult, what right do you have to sue the child’s parents if they knew the child was dangerous?

One case decided earlier this year has set some guidelines on these questions.