Articles Posted in Miscellaneous

Trump rants that “attorney client privilege is dead.” BS! I’m a lawyer and feel no less confident that as long as my clients and I keep our noses clean, our privileged communications will remain sacrosanct as always. Major hurdles had to be overcome for the federal judge to authorize the raid [in the Cohen matter]. Moreover, additional post-raid safeguards are in place to prevent unauthorized breaches of the privilege. The AC privilege is not absolute; it is not a license to advance or commit crimes. While the measures taken against Cohen are severe, they are not unfair [despite what the Whiner in Chief declares]. The rule of law has been followed to a T.

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Trump is a despicable pig. Period. Anyone who thinks otherwise is right there with him. Period. One day after Passover, the Festival of Liberation, and mere hours after attending church services on Easter Sunday, a supposed day of joy and compassion for Christians, this human smegma dashes all hope for tens of thousands of good and decent and defenseless young people by gleefully declaring in pathologically perverse tweets that DACA is dead.

moses-224x300In Parsha Yitro (full text here in Hebrew and English), Jethro suggests to Moses, his son-in-law, that the Jewish people would be better served if he appointed a hierarchy of magistrates and judges to assist him in the task of governing and administering justice to the people. The advice was taken, establishing the framework for the form of civil jurisprudence practiced in America today, some 3300 years later.

In Florida, the administration of civil disputes is handled through a series of courts, each with varying degrees of authority and responsibility. Disputes involving $15,000 or less begin in the trial jurisdiction of county courts, while disputes in excess of $15,000 fall within the jurisdiction of the civil circuit trial court system. Appeals from decisions made in both court systems can sometimes be taken all of the way up to the Florida Supreme Court. In some rare instances, the Supreme Court of the United States will consider a state court case.

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greed-1-156x300“Big Business,” for want of a better term, goes to great lengths to misinform the public about many different subjects, all for the purpose of advancing one cause: MAXIMIZING PROFITS!

One of its most popular and successful themes is the notion that the country is suffering under an onslaught of “frivolous lawsuits.” By convincing the public that most lawsuits are baseless and that baseless lawsuits cause the price of products and services like insurance and health care to spiral upwards, Big Business has successfully polluted the minds of potential jurors and gotten politicians to enact legislation curbing access to courtrooms and imposing arbitrary caps on damages in personal injury cases. The end result is that “We the People” have been bamboozled into giving up the right to seek redress for legitimate grievances.

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FloatI remember the night, in 1964, that a young Cassius Clay defeated world champion Sonny Liston at the Miami Beach Convention Center. I waited anxiously by the radio for a report of the outcome. He was expected to be eaten alive by the big bad bear Liston and become a footnote in the history books. I was more relieved that he wasn’t hurt than excited about the victory. The next day Cassius Clay became Muhammad Ali, and the rest is much, much more than a footnote in the history books.

While his ring exploits are legendary — Olympic Gold Medal, the Thrilla in Manila, dismantling George Foreman in 8 rounds in Zaire, Africa in the fight known as The Rumble in the Jungle — his greatness came from the character he demonstrated both in the ring and out. In refusing to participate in an unconscionable conflict — the United States never formally declared war in the so-called Vietnam War — in defiance of White Establishment America, he was stripped of his world title, barred from fighting for three and a half years during the prime of his physical prowess, and convicted of draft evasion and sentenced to five years in prison. Instead of complaining, he fought the conviction all the way to the United States Supreme Court and had it reversed by an 8-0 vote.

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greed2.jpgLawyers know best!

Jeb’s running for president of the United States. He has a strong chance of winning.

People who care about the rights of families and individuals should be fearful of a Jeb Bush presidency.

For the next two years, millions of dollars will be spent trying to shape Bush’s image in voters’ minds. Among the themes will be that he, like his brother before him George W. Bush was purported to be, is a compassionate conservative.
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greed.jpgOn December 31, 2014, an article published in the Business Section of the Miami Herald, illustrated with chilling clarity the dangers posed by so-called tort reform.

In a nutshell, “tort reform” is the movement supported by right-wing interest groups to block and limit recoveries in personal injury cases. The propaganda disseminated to support these efforts is that most lawsuits are frivolous. Huge sums of money and influence have been invested to make the public believe this nonsense. Sadly, the smear campaign has been successful.

That success spells danger to every member of our society.

The Miami Herald article describes how tort reform has prevented law firms from prosecuting claims against General Motors for accidents caused by defective ignition switches resulting in death and catastrophic injuries. By placing arbitrary caps on the amount of damages that can be awarded for injury or death, rather than allowing a jury to make the determination after considering the evidence, law firms cannot afford to prosecute the claims. Quite simply, the investment in time and money doesn’t make business sense.
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gavel-952313-m.jpgUndermining a witness’ credibility can make the difference between winning or losing a case. A popular method of impeachment is by demonstrating differences in present and former testimony. This method is illustrated in this blog — Florida Personal Injury Law — No Substitute for Solid Pretrial Discovery

The right to impeachment is not unlimited. Generally, it is not permissible on collateral issues. See, e.g., New England Oyster House of N. Miami, Inc. v. Yuhas, 294 So.2d 99 (Fla. 3d DCA 1974) (holding, in action for injuries sustained by plaintiff when she tripped and fell on concrete curb and where plaintiff dropped claim for lost wages, trial court properly refused to permit defendants to impeach plaintiff’s credibility with statement in her deposition that she lied on her income tax returns); see also Foster v. State, 869 So.2d 743, 745 (Fla. 2d DCA 2004) (“The test for determining whether a matter is collateral or irrelevant is whether the proposed testimony can be admitted for any purpose independent of the contradictions.”) (quotations omitted).

In the case discussed in the above cited blog, the defendant’s second deposition testimony concerning a key, relevant issue was diametrically different than it was in his first deposition, sworn answers to interrogatories, and responses to requests for admissions. If this witness takes the witness stand at trial, set for late January, 2015, and repeats his second deposition testimony, the court will not hold us back from challenging his credibility with prior statements. The court will not limit our attack because the inconsistent evidence concerns a relevant issue.

In contrast, the defendants in that same case will not be allowed to impeach our client, the Plaintiff, on a collateral issue. Our 78 year old client fell through a deck/dock under repair while strolling behind an acquaintance’s house at night. While the defendants failed to post warnings or barriers, they are blaming the accident on our client for having impaired vision. From past medical records that she provided to defendants, it was discovered that she had a laser procedure done on her eyes five years before the accident which she failed to mention in her deposition.
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scales of justice.jpgCorporate America has campaigned for more than thirty years to brainwash average people into believing that America’s civil justice system is a bad thing. Sadly, the campaign has worked, fostering views contrary to one of the most fundamental principle on which America was founded: that the courts are to be a neutral forum in which the small can take on the big. Reference: We the People.

The purpose of this blog is to build a resistance to the propaganda through education. Ignorance is not bliss when basic civil rights hang in the balance.

What is the civil justice system? It is the system individuals and corporations use for redressing alleged wrongs. The fundamental components of the system are judges, juries, and lawyers.

What is a “tort”? A tort is harm caused intentionally or by negligence. The best known torts involve personal injuries, but can include other types of damages. The aggrieved party, the Plaintiff, sues the Defendant, for monetary damages.

Aren’t these personal injury or “tort” lawsuits flooding the courts? No. Tort cases make up only 6 percent of the entire civil court caseload and they are decreasing. The National Center for State Courts shows a 21 percent decline in tort filings from 1996 to 2005. Richard LaFountain et al., Examining the Work of State Courts: A National Perspective from the Court Statistics Project (National Center for State Courts 2009) at 1, 2. (The Court Statistics Project is a joint project of the Conference of State Court Administrators, the U.S. Department of Justice’s Bureau of Justice Statistics and the National Center for State Courts.)

  • Only 10 percent of injured Americans ever file a claim for compensation, which includes informal demands and insurance claims. Only two percent file lawsuits. David A. Hyman and Charles Silver, “Medical Malpractice Litigation and Tort Reform: It’s the Incentives, Stupid,”59 Vand. L. Rev. 1085, 1089 (May 2006) (citing Thomas F. Burke, Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society 3 (2002));Rand Institute for Civil Justice, Compensation for Accidental Injuries in the United States (1991).
  • Academics generally concede there is no evidence that “frivolous” lawsuits are a problem.
  • In 1999, the Institute of Medicine (IOM) concluded that between 44,000 and 98,000 Americans die each year (and 300,000 are injured) due to avoidable medical errors in hospitals alone. Yet eight times as many patients are injured as ever file a claim; 16 times as many suffer injuries as receive any compensation. The Harvard School of Public Health closely examined 1,452 closed claims and concluded that “[p]ortraits of a malpractice system that is stricken with frivolous litigation are overblown.” David M. Studdert et al., “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation,” New England Journal of Medicine, May 11, 2006. The study found that most injuries resulting in claims were caused by medical error, and that those that weren’t were, nevertheless, not “frivolous” claims.
  • In 2005, tort jury and bench trials together constituted 1.3 percent of all general civil dispositions in 79 jurisdictions reporting and 3.5 percent of all tort dispositions in 104 jurisdictions reporting.

What is “tort reform”? This term refers to laws that benefit the corporate sector. These laws make it more difficult for injured people to sue in civil court, or limit the power of judges and juries to make decisions in tort cases. (See these examples: 2010 Florida Legislature Further Curtails the Rights of Medical Malpractice Victims; Vehicle Owners – Other Than Rental Agencies – Vicariously Liable Under Florida Law.)

But isn’t it easy to “win” money in a lawsuit by forcing the other side (usually an insurance company) to settle? No. Insurance companies do not settle frivolous cases. For example, Duke University Law Professor Neil Vidmar found in his research: “In interviews with liability insurers that I undertook in North Carolina and other states, the most consistent theme from them was: ‘We do not settle frivolous cases!’ The insurers indicated that there are minor exceptions, but their policy on frivolous cases was based on the belief that if they ever begin to settle cases just to make them go away, their credibility will be destroyed and this will encourage more litigation.”
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law books.jpgFlorida entities seek advance protection from their own negligence in two ways: exculpatory clauses and indemnity agreements.

An exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. Kitchens of the Oceans, Inc. v. McGladrey & Pullen LLP, 832 So.2d 270 (Fla. 4th DCA 2002).

An indemnity agreement arises when one individual takes on the obligation to pay for any liability, loss or damage that has been or might be incurred by another individual. Free Legal Dictionary. Some indemnity agreements purport to indemnify a party against its own wrongful acts.

Exculpatory clauses and indemnity agreements which attempt to indemnify a party against its own wrongful acts are viewed with disfavor in Florida. Since both are looked upon with disfavor by the courts, they are enforceable only where and to the extent that the intention to be relieved from liability was made clear and unequivocal and the wording must be so clear and understandable that an ordinary and knowledgeable person will know what is at stake. Exculpatory clauses: Gayon v. Bally’s Total Fitness Corp., 802 So.2d 420 (Fla. 3d DCA 2001); Raveson v. Walt Disney World Co., 793 So.2d 1171 (Fla. 5th DCA 2001). Indemnity agreements: Cox Cable v. Gulf Power, 591 So.2d 627 (Fla. 1992); Charles Poe Masonry, Inc. v. Spring Lock Scaffolding, 374 So.2d 487 (1979); University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla. 1973); Florida Power & Light Co. v. Elmore, 189 So.2d 522 (Fla. 3d DCA 1966); and Nat Harrison Associates, Inc. v. Florida Power & Light Co., 162 So.2d 298 (Fla. 3d DCA 1964).

Our law firm is currently in the early stages of a case involving personal injuries and an indemnity agreement, but no exculpatory clause. Our catastrophically injured client was an independent contractor pulling large trailers owned by a Florida company. He was injured through the negligent maintenance of the trailer by the Florida company. He and the company have in place an agreement calling for our client to indemnify the company for injuries resulting from its fault.

The legal question is whether the indemnity agreement effectively precludes our client from recovering for his losses from the company. We believe that the answer is No. In our considered opinion, it would take an exculpatory clause, rather than an indemnity agreement, to deny our client the right to recover damages from the company for negligently causing his injuries.
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people.jpgOur client was a passenger in a Dodge Dakota truck owned and leased by Enterprise Leasing Company, when it overturned two to three times on the highway at high speed. The driver, who had rented the truck from Enterprise, had fallen asleep at the wheel. Our severely injured client was airlifted to Shands Hospital, in Gainesville, Florida.

We filed suit against the uninsured driver and Enterprise. We alleged that Enterprise negligently entrusted its truck to the driver. The facts forming the basis of this allegation against Enterprise:

  • The driver had a suspended Florida drivers license at the time of the lease transaction. While the driver presented to the Enterprise agent what appeared to be a facially valid Texas drivers license, it is unlawful to operate a vehicle in Florida when that driver has a suspended license in any state. Enterprise failed to perform a simple and inexpensive computer search to determine if the driver had a suspended license.
  • The credit card the driver presented to the Enterprise agent was rejected. Enterprise nevertheless rented the vehicle, in violation of its own policies and procedures, which called for the production of other forms of proof of personal responsibility.

Once upon a time, rental car companies could be held vicariously liable for injuries caused by the negligent operation of their vehicles by authorized drivers. (Whether vicarious liability applied in a state was a matter of state law. Florida is a vicarious liability state. Vicarious liability has been recognized in Florida since 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Under this doctrine, a vehicle owner is liable without fault for damages caused by the negligent operation of his or her vehicle by a consensual driver.) As to rental agencies, this standard ended in 2005, when a Republican Congress, at the urging of then-President George Bush, passed the so-called Graves Amendment. The Graves Amendment substituted federal law for state law, providing blanket immunity to rental companies from vicarious liability. (So much for states’ rights!)

While the Graves Amendment relieved rental companies from vicarious liability, it allowed to remain in place actions against agencies for negligent entrustment. The distinguishing feature of negligent entrustment from vicarious liability is that the owner is independently at fault in granting consensual use of the vehicle. Florida courts consistently hold that one who negligently entrusts a car to someone is liable for damages flowing from the misuse of that car. Clooney v. Geetting, 352 So. 2d 1216 (Fla. 2nd DCA 1977) (“we see no reason why this theory is not available to claimants injured in automobile accidents in this state.”) The Florida Supreme Court long ago held that because the use of a dangerous instrumentality involves such a high degree of risk of serious injury or death, the highest degree of care is required. Skinner v. Ochiltree, 5 So. 2d 605 (Fla. 1941).

Enterprise denied that it negligently entrusted its vehicle to the at-fault driver. Enterprise argued that section 322.38, Florida Statutes, limited the scope of its duty to our client, that it had no responsibility to investigate the status of the driver’s driver’s license beyond “facial validity,” contending that one’s driving record or background should not influence its decision to rent one a car, and that a declined credit card is irrelevant to a negligent entrustment claim under section 322.38 as a matter of law. (We presented evidence that poor credit is an indicia of risk recognized by rental agencies and insurance companies.) The trial court agreed with Enterprise, granting summary judgment in its favor.
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