Spohrer & Dodd, P.L.
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Jacksonville, FL 32204
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Settlements & Verdicts
Aviation DUI Boat Pedestrian Government Claims Auto Products Death Claims
Understanding the Process
Common Personal Injury Terms & Concepts
The Process of a Legal Claim
The following descriptions and explanations about the legal process are provided as a convenience to my clients as a reference to things we have or will personally discuss. My clients are invited to call me, or meet with me, at any time to have their specific questions answered. The legal process can vary widely depending on the type of claims and these below are merely typical.
I am often asked "will my case settle," what are my chances of winning," "how long will this take" or "how much is my case worth." Neither of these questions can be answered with any certainty because there are too many variables and most are outside of the lawyer's control. A legal client should be very skeptical about their lawyer's competence if they are willing to speculate with specific answers to any of these questions early in the process.
When first presented, we try to identify the various potential claims and determine whether those who are mostly likely to be our opponents can be held accountable. We next consider whether we can prove the required elements and survive defenses that are likely to be raised because we are prohibited from bringing a claim that is not supported by the law. Because of this, a claim may be rejected at any time if it we believe it lacks merit or viability.
Once accepted, we will continue to more extensively investigate the facts, conduct medical reviews, identify witnesses and retain qualified expert witnesses. This may also require investigators and/or legal researchers. We may make a written demand offering your opponent an opportunity to resolve the claim without litigation.
The decision to litigate, or "sue" someone requires significant consideration. It can be extremely time consuming, expensive and aggravating. The process requires the parties to subject themselves to the power of the court, which will result in a loss of privacy and require them to provide detailed information to support their claims and/or defenses.
The process starts with the claimant (called a "Plaintiff") filing the lawsuit, (the "Complaint") in a court of law. The type of court depends on the facts of the claims. The general descriptions for Florida claims follow:
- County Court: Civil claims for damages of more than $5,000 and up to $15,000.00. These claims may be decided by a judge or jury.
- Florida Circuit Court: Civil claims for damages of more than $15,000.00. These claims may also be decided by a judge or jury.
- United States District Court: The federal court hears claims falling under one or more federal statutes that provide the authority to decide them. The federal courts have exclusive power to hear: actions against the federal government; actions that involve citizens (or corporations) of two different states if the damages may exceed $75,000.00; actions that arise under a federal statute (such as a violation of rights); and, certain claims involving Admiralty or Maritime causes. The type of action determines whether a jury can be seated. Any may be adjudicated by a judge.
Once the suit is filed, the "Defendant" is given a period, usually 20 or more days, to either "Answer" the suit or file a "Motion" challenging the claim.
A defendant's Answer specifically addresses each of the Complaint's allegations. Typically, Defendants will initially deny most of them because they have not had an opportunity to investigate. A Motion is a Defendant's request that the court consider various challenges to the lawsuit. If filed, the requirement to Answer is waived until the motion is decided by the Judge.
Defenses to the lawsuit are typically raised by the filing of various types of motions brought during different phases of the litigation and each may invoke different standards. Typical defenses include:
- There is no cause of action as alleged;
- suit was filed in the wrong court;
- suit was filed in the wrong county or state;
- The court lacks power over the type of claim;
- the court lacks power over a defendant;
- the suit was not properly served;
- the suit is untimely;
- A Defendant or Plaintiff is not the correct party;
- a required presuit condition was not met;
- the defendant is entitled to an immunity;
Motion to Dismiss:
A "Motion to Dismiss" may be raised early in the process and usually at the time the Complaint. The Judge is asked to reject the claim based on one or more of the defenses, but must assume that everything that was alleged in the Complaint is true.
Motion for Summary Judgment:
A "Summary Judgment" can be brought by either side and is typically brought after the parties have investigated the Plaintiff's allegations or Defendant's defenses. It asks the court to reject some or all of these if the claims are not supported even without any facts in dispute.
A "directed verdict" is raised during trial and the standard requires dismissal if, assuming everything Plaintiff said, the defendant cannot be liable.
The parties will exchange evidence and information supporting the claims and defenses. The law requires the exchange of relevant evidence by each party but defines relevant information very widely. The process may include a number of "vehicles," but the most typical include:
- Interrogatories (written questions answered under oath);
- Requests for Production (exchange of documents and other evidence);
- Requests for Admissions (asking parties to admit or deny specific facts);
- Depositions (a recorded interview where questions are asked under oath);
- Requests for Inspection (asking to inspect, test or measure vehicles, locations and/or other evidence);
If injuries are claimed, the Plaintiff may be compelled to undergo a DME (defense medical examination). This is usually scheduled at a time of mutual convenience in the Plaintiff's city. The examination is paid for by the defense. The expert will physically examine the Plaintiff, ask questions about the injuries, review records and diagnostics and then report their findings to the defendant. They typically do not provide the Plaintiff with their findings directly, give medical advice, provide care or suggest any treatment.
After discovery is substantially completed, the parties are required to attend an in-person settlement conference before a neutral mediator. The mediator is not a judge and cannot make rulings or decide the outcome. The parties present their claims and defenses and enter into negotiations to resolve the case. While no party is compelled to settle, if resolved, the case is over; there is no more discovery; no trial and no appeal. If not, the parties will proceed towards the trial though the opportunity to resolve the case remains open. Anything mentioned at Mediation is privileged from disclosure and cannot be used at trial.
If not settled earlier, the parties will go to trial and have a judge or jury decide the facts and outcome. The judge or jury will judge the credibility of live witnesses and experts to reach a decision about the outcome, subject to the judge's rulings on the admissibility of the evidence presented. If the case is decided by jury, a "verdict" will be read at trial. If the judge is the decider, an "Order" containing the judge's findings and legal conclusions will be entered at a later time.
After trial, either side of a conflict would be expected to challenge the Order or Verdict, or particular elements of those, by Motion. There are specific time limits, depending on the type of challenged. Once these Motions are decided, a Judgment is entered. Once a Judgment is entered, any party may appeal an outcome if they can assert a good-faith argument that the court committed "error."
PERSONAL INJURY LEGAL DOCTRINES
Comparative Fault: Under Florida law, the court must apportion fault for causing the plaintiff's damages. Blame can be apportioned to the defendants, the plaintiff and any non-party blamed by the defendants to have contributed. Fault apportioned to anyone other than those actually named defendants in the lawsuit will diminish the recovery made by the plaintiff, if any. For Florida, See Fla. St. §768.81.
Dangerous Instrumentality Doctrine: Even if not present or even negligent, an owner of a dangerous instrument (motor vehicle, airplane, firearm, etc.) remains is legally responsible and liable for the damages caused by someone consensually using their instrument. Distinctions may render this doctrine inapplicable in Maritime accidents if the owner of the vessel is not aboard the vessel.
Discretionary Function Exception: A defense enjoyed by a governmental defendant that eliminates liability if the harm was caused by the negligence of an employee as a result of their exercise of a planning level decision. (i.e. the government is immune for deciding not to place a traffic signal at a dangerous intersection but is liable for operational negligence, which may involve their failure to repair a damaged or broken signal for an unreasonable period of time).
Joint & Several Liability: The obligation of one or more defendants to compensate a plaintiff for all of the damages incurred, including the damages apportioned to a co-defendant who is unable to pay. This doctrine has been abolished in Florida as each defendant is now solely responsible for the payment of damages apportioned to it. However, the doctrine continues to apply in Maritime actions.
Negligence: Negligence is failing to do what a reasonable person or company would do in similar circumstances. In Florida, negligence requires proof that a defendant who owes a duty to the claimant to act reasonably failed to do so and caused that claimant to suffer damages.
Negligent Entrustment: The owner of an instrument (motor vehicle, airplane, firearm, etc.), may be liable to someone injured by it if found that the owner failed to use reasonable care in allowing another to use the instrument.
Sovereign Immunity: Governmental entities and their subdivisions enjoy immunity for an injury or death claim unless specific circumstances are involved and strict procedures are complied with. They are almost always immune from poor planning level decisions. For Florida, see Fla. St. §768.28.
Strict Liability: A doctrine often involving defective products that gives rise to liability without a requirement that one prove negligence.
Workers Compensation Immunity: An employer is, in most cases, immune from liability in tort for an injury to an employee incurred in the course and scope of employment if the employer maintains workers compensation insurance. The employer's liability is limited to the payment of benefits under the policy and cannot be sued in court. There are very few and narrow exceptions.
Additur: The entry of a court order increasing the amount of a jury verdict for an element of damage.
Answer: A document filed in a court of law by a Defendant, Cross-Defendant or Counter-Defendant setting forth their responses, usually ("admit", "deny" or "without knowledge") to the allegations made by the Plaintiff in their Complaint and alleging their affirmative defenses to the claims stated.
Breach: The failure of a person to meet the duty imposed on them by statute or common law.
Cause in Fact: The actual cause of a person's injury, death and damages. The injury would not have happened "but for" negligence. See also, "Proximate Cause, below"
Comparative Fault: See Doctrines, above.
Concurrent Causes: In Florida, one's conduct may be a legal "cause" of loss, injury or damages even if there are other causes, or even a natural condition, such as weather.
Compensatory Damages: Damages from another's conduct that are intended to provide restitution for an actual loss to the plaintiff as opposed to punishment (Punitive) damages. These may include a number of elements, including "Economic Damages," such as lost wages, medical costs or out-of-pocket costs; or "Non-Economic Damages," which include restitution for pain & suffering, loss of enjoyment or life and other non-pecuniary elements.
Complaint: A document filed in a court of law by a Plaintiff setting forth allegations of a cause of action and seeking relief in the form of money damages.
Continuance: A delay in a proceeding usually sought by oral or written motion. The continuance may be granted with or without rescheduling of the event.
Counterclaim: A claim made by a Defendant setting forth allegations of causes of actions seeking damages against a Plaintiff in the same action. This makes the Plaintiff a "counter-defendant" in the action.
Cross-claim: A claim made by one Defendant against another Defendant in the same action setting forth allegations of causes of actions seeking damages against the co-Defendant.
Daubert Challenge: The judge is obligated by the rules of evidence to be the gate-keeper of expert opinions and scientific evidence. A party may challenge the expert's qualifications to render an opinion, an opinion's underlying support or the opinions themselves if they are unreliable.
Default: An order or judgment entered as a matter of right or course by the court or clerk without consideration of a party's response.
Default Judgment: A judgment issued by a court or clerk if no answer or response to a Complaint is timely received from a defendant.
Defense: A defense to a claim may involve an immunity, preventing their liability, or an excuse that may preclude or limit one's liability. Asserting a defense can explain the defendant's behavior or blame a non-party. Including a defense against a non-party does not subject the non-party to damages.
Defense verdict: A decision by the Judge or Jury finding that a defendant has no liability for the claims asserted against them.
Directed Verdict: The court's entry of a judgment against a plaintiff and in favor of a defendant if, after the plaintiff's case-in-chief has been presented, the court finds that no liability exists.
Discovery: The process of exchanging information, documents and other evidence during litigation.
Duty: An obligation imposed on one (person or entity) by common law or Statute to another to act in accordance with a particular standard of care.
Economic Damages: Loss of money arising from another's negligent or reckless conduct that is intended to provide restitution for past and future lost wages, medical expenses and out-of-pocket costs or the ability to earn money.
Expert Witness: A person retained by a party to provide the finder of fact (jury or judge) with expertise on a scientific subject or issue that falls outside of the general knowledge of a person. Once qualified by the court, an expert, may testify in the form of (supported) opinions.
Federal Tort Claim: A federal claim for damages arising out of an injury, death or property loss arising out of the negligence of a federal employee on U.S. soil. see also, Military Claims Act, Public Vessels Act.
Immunity: A defense to a cause of action where a defendant cannot be held liable for a claim, or part of a claim, because they enjoy a special protection afforded by statute, common law or contract (release).
Military Claims Act: An discretionary administrative claim for damages arising out of an injury, death or property loss arising out of the negligence of a federal employee. Absent a violation of civil rights, a lawsuit may not be filed if the harm occurred overseas. If denied, and the injury occurred on U.S. soil, a Federal Tort Claim may be filed.
Motion: A written or oral application to the court seeking a decision on an issue or some other type of relief.
Non-Economic Damages: Non-pecuniary (not a loss of money) compensatory damages arising from another's conduct that are intended to provide restitution for pain & suffering, loss of enjoyment or life and other non-pecuniary elements.
Order: A written or oral announcement by a court for scheduling, or deciding the outcome of an issue or motion. An Order may also provide notice to the parties how or when some action is to be done.
Party: A person specifically named as a Plaintiff or Defendant in a lawsuit.
Personal Representative: A person appointed by a court of law to act on behalf of a deceased person and/or their Estate. Under Florida law, a personal representative is the only person/entity that can bring a lawsuit for Wrongful Death and they must pursue the claim for the Estate and all lawful survivors of a deceased person.
Plaintiff: A person who files a lawsuit seeking money damages. Also, a counter-plaintiff is a defendant to a lawsuit who brings a claim against the original Plaintiff within the same lawsuit as a "Counterclaim." A "cross-Plaintiff" is a defendant who brings a claim against another Defendant in the same action as a "Crossclaim."
Professional Negligence: A negligent deviation from the accepted standard of care by one who is required to hold a professional license or particular education in a professional field. (Doctors, Lawyers, etc.)
Protective Order: An agreed or contested court order protecting a party from undue, inconvenient, oppressive, unreasonable or harassing discovery or to prevent the filing or disclosure of confidential material.
Proximate Cause: One or more legal causes that may combine or contribute to one's damages from an injury or death. A legal cause is one that naturally relates in some way to the damage that is also a foreseeable consequence of the cause-in-fact. See also "cause in fact" above.
Public Vessels Act Claim: A federal claim for damages arising out of an injury, death or property loss arising on board a vessel operated by the United States government or military.
Punitive Damages: Compensation for the victim of one's intentional conduct, including DUI, resulting in damages to a victim. Unlike "compensatory" damages, punitive damages are intended to punish a wrongdoer for their behavior.
Remittitur: The reduction of a jury verdict by the court.
Sanction: A penalty imposed by the court for a party's behavior or failure to comply with the law, rules or court orders.
Standard of Care: The degree or level of prudence owed by someone with a duty to another. The standard of care can arise by common law, statute or by the established level of care in a given industry or profession.
Subrogation (lien): An insurer who has paid benefits to one injured by someone is entitled by statute, common law or contract to be reimbursed for the benefits paid when a recovery is made by the Plaintiff for those damages. For example, if an injured plaintiff's medical care was paid by his health insurer, the insurer may recover some or all of its costs from any proceeds recovered by the plaintiff.
Survivor: A person who is lawfully entitled to recover money damages as a result of another's wrongful death.
Survival Action: A claim for a decedent who was injured by someone else's negligence but did not die as a direct result of that negligence.
Verdict: The document containing the jury's finding of a fact, decision concerning liability, award or rejection of damages or answer to a particular question.
Wrongful Death: A claim for money damages arising out of the death of someone injured by the negligence of another.
If you have been injured or have lost a loved one in a traumatic accident, please contact me to discuss your options.
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