Articles Posted in Trial

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court-room-300x198If you have a personal injury lawsuit in Miami, sooner or later you will likely end up in mediation. So what is mediation? It really doesn’t involve deep measured breaths, closing your eyes and focusing inward (although that might help during an actual personal injury mediation). Florida law and Rules of Civil Procedure provide for and encourage settlement of all legal disputes. The primary format for alternative dispute resolution in Miami is called mediation.

What is a Personal Injury Mediation?

Mediation is a basically a settlement conference with an impartial third party called a mediator who is trained and certified. It usually takes place at a neutral location like the mediator’s office. The parties to the lawsuit attend with their lawyers. Often in personal injury mediation, there is an insurance company involved. The insurance company will usually have a claim representative or adjuster attend the mediation with the insurance defense attorney. Some insurance companies will have designated field representatives who attend all the mediation conferences in the particular jurisdiction. On other occasions, an adjuster will attend the mediation by phone or Skype. In order to attend by phone or Skype, the parties would need to agree. If the parties do not agree, then a motion to allow the adjuster or representative to attend by phone can be filed with the court and a judge can rule on the issue. Typically in a Miami personal injury mediation, the parties will agree to allow the insurance company representative attend by Skype of conference call.

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courtroom-300x225-300x225Let’s start with the assumption that you are well-educated and charming. You are board certified and have all the specialist certifications anyone in your field could hope to have in a lifetime. You love your family and your country. You know your field. People call you an expert and seek your opinion. So, does that mean you are ready to be an expert witness? Not necessarily.

The Miami personal injury lawyers at the Wolfson Law Firm have worked with experts in Florida for more than 60 years. Here are the top 8 things our attorneys say you should know about testifying as an expert witness:

  1. You are what your records say you are. If there are any public records that might prove embarrassing, you can rely on a decent trial lawyer to find them. Understand that part of trial work is investigating the witnesses. That includes civil and criminal records; any state or federal records that are available; and even the property appraiser. If you are going to be an expert in court, then you should make sure your online presence in social media is pristine.
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img-box-02dCan I get the other side to pay my attorney’s fees in my Miami car accident case?  The answer is sometimes, yes.

The Miami car accident attorneys at Wolfson Law Firm work with the rules surrounding proposals for settlement regularly. A proposal for settlement is basically an offer to settle and either side can file one. This is the process and law that may help you get the other side to pay your attorney’s fees.  Under Florida Statute 768.69 which is Florida’s Offer of Judgment and Demand for Judgment statute, during litigation a Miami car accident lawyer can send a proposal for settlement to the other side. If you go to trial and get 25% more than what you asked for in the proposal, then you can get the other side to pay for your attorney’s fees.  That means that you may not have to pay the contingency fee at all.

Now, this law can be used against you too.  This means that, if the other side sends a proposal to you and your end verdict at trial is 25% less than what was offered to you, then you will need to pay their attorney’s fees and costs. As far as costs, Florida law does provide for the prevailing party to recover costs from the losing side even without a proposal being issued.

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personal-injury-lawyer-300x168A Miami jury split the fault in a Miami premises liability personal injury case involving a shopping cart. The plaintiff claimed Home Depot was negligent because it allowed a threshold to exist which caught a shopping cart the plaintiff was pushing. When the cart got stuck, it jerked back and struck the plaintiff . He seriously injured his neck and back as well as his shoulder. The jury awarded approximately $328,000 which was reduced by the 50/50 finding of the jury.

Generally, a property owner owes two duties to an invitee. First it owes the duty to use reasonable care in maintaining the property in a reasonably safe condition. Second, the property owner has the duty to warn of concealed or latent hazards or dangers which the owner knows about, or should have known about. The hidden dangers must also be unknown to the invitee. Finally the concealed hazard is not discoverable through the exercise of due care. A property’s owner may be discharged of the duty to warn when the hazard is open and obvious. But  even with open and obvious hazards the landowner continues to have the duty to maintain the property in a reasonably safe condition.

The injured plaintiff must generally prove that the property owner had constructive or actual notice of the dangerous condition. A property owner, like Home Depot, can be held liable for injuries and damages if the hazardous condition existed for a sufficient period of time to charge the premises owner with constructive knowledge. Constructive knowledge can be inferred, or assessed, if a hazardous condition existed for long enough that in the exercise of reasonable care the concealed or latent hazard should have been known to the premises owner.

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court-look-300x300If you have a personal injury case, you might feel that you have no control. Everyone else has the power – the attorneys, the insurance company, the judge, or the jury. But that is not entirely true. You do have some power. You have the ability to avoid the mistakes that can cause you to lose your personal injury case. It doesn’t matter if you were injured in a car accident, truck accident, slip and fall, motorcycle accident or any other type of serious injury. In every personal injury case, there are missteps you should avoid.

So what are those mistakes? Based on the experience of our Miami personal injury attorneys here are the top five:

1. NEVER TELL A LIE

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courtroom-300x225-300x225According to the Florida Bar, the Daubert Standard has a large impact on the admissibility of expert witness testimony. Relatively recent changes to Florida’s laws impact how victims seeking damages and recoveries can use expert witness testimony to support their cases. Many personal injury cases employ the testimony of expert witnesses, such as doctors, to explain to judges and juries the nature of a victim’s injuries and to show damages. Expert witnesses can explain to a judge or a jury expected recovery times, expectations regarding long term care, and can help personal injury lawyers justify the amount of money they are seeking for compensation on behalf of their clients. The defense is likewise permitted to hire expert witnesses to support its own claims.

Yet, the revised standards for expert witnesses may change the way auto accident lawyers go about choosing their witnesses. Florida courts use the Daubert Standard. According to Cornell University Law School, the Daubert Standard is an assessment made by a judge to determine whether an expert’s testimony is based upon scientific reasoning and valid scientific study. The judge will often ask several questions about how an expert witness went about presenting evidence. First, the expert witness’s technique must be testable and must have been tested. Secondly, the judge will consider whether any evidence or expert testimony has been subject to peer review. Next, the judge will ask about possible margins of error, and whether controls were used in any studies. Finally, the judge will consider whether the methodology or results are accepted in the scientific community.

These standards significantly raise the bar for expert testimony presented in a case and they also limit who can present expert testimony. Expert opinion, on its own, is no longer allowed. Previously, courts used the Frye test, which required that statements being made in court meet the standards of general acceptability in the field to which the person belongs. The Daubert Standard can have immense implications for certain personal injury lawsuits. For example, in a case where a worker is claiming that workplace stress led to a miscarriage, the victim suing will have to present relevant studies to the court to show how stress on the job, or how stress in general, can result in a miscarriage. If the victim wants to use an expert witness, the victim will have to find an expert witness who has performed studies on stress and miscarriage or who has worked on the studies, to testify in court.

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proof3-300x200One of the most asked questions we hear at the Wolfson Law Firm is “How long will my Miami car accident case take?” or “How long will my slip and fall case in Miami take?”  The answer depends on the facts of your case. It also depends on the type of case as well as a number of other factors.

How Long Do I Have to File a Lawsuit?

The first question is who is responsible? If it was a governmental agency, then you will have to give that agency 6 months’ notice that you intend to file a lawsuit. You have to wait 6 months to file suit or it will be dismissed.

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At trial, we use the chart above to explain the different burdens of proof that govern the decisions that jurors ultimately render for our clients.

Since we are a personal injury firm that only represents people who were injured, we do not do criminal trials. However, we are well aware of the burden of proof that the government is held to in order to take a defendant’ life or freedom. It is the highest burden because it is the greatest threat. The government must prove its case “beyond a reasonable doubt” to take someone’s life or liberty.

Miami Personal Injury Lawyer Jonah Wolfson

If the government wants to take a child from the parents, the burden is less than beyond a reasonable doubt. That burden is “clear and convincing” evidence. While that standard is not as high as beyond a reasonable doubt, it is still much higher than the burden of proof to resolve disputes between citizens.

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The short answer is “If you say it, then you prove it”. That seems fair, right? But do all cases have to be proved “beyond a reasonable doubt”? The answer is no and the reason why makes sense.

The United States Declaration of Independence declares “Life, Liberty and the Pursuit of Happiness” as inalienable rights. The 5th Amendment offers protections to our “life, liberty, or property” noting that these rights cannot be taken from us without due process of law.

If your life, liberty or pursuit of happiness is at risk then you are most likely a criminal defendant and it is the government that is trying to take these rights from you. As such, the burden on the government should be as high as possible to protect your rights. As everyone has heard in nearly every movie or TV show, that burden is generally stated as “beyond a reasonable doubt”. That makes sense too.

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A mistrial was declared in Broward Circuit Court when several jurors voiced concerns about their personal safety from a criminal defendant and his supporters. The jurors were also worried about identity theft because of their personal information being in the public record. The jurors’ fears and concerns, while rare, were indeed valid.

 

idtheft

The mistrial was declared on the second day of trial because the defendant could not be assured of a fair and impartial jury. The defendant had been charged with second-degree murder for shooting someone outside a Davie, Florida pool hall. Jury selection lasted two day and 180 potential jurors were interviewed before selecting eight jurors for the trial. On day two of the trial, one female juror asked a question that ultimately caused a mistrial. She asked Broward Circuit Judge Jeffery Levenson if her personal information, such as her name and address, was part of the public record that could be viewed by anyone. Later other jurors told the judge that they were also concerned with whether their personal information was secure from not only identity thieves but from the defendant and his supporters. The mistrial was declared and the trial was reset for early 2016.

This incident involves two issues – juror safety and identity theft. As for juror safety, jurors’ identities are generally known to everyone. Usually, a juror will not be asked about their race, religion or sexual preference. They will be asked about what neighborhood or city they live and work in. They can be asked about marital status, family members and even what magazines or websites they like. Jurors can be asked to sit for a criminal or civil case. In general, jurors are not anonymous except in rare high profile criminal cases. In most criminal cases, potential jurors are concerned about their safety from the defendant and his/her supporters but that issue is usually handled in jury selection. Juror safety concerns are almost exclusively reserved to criminal trials because of the nature of the proceedings. The defendant is charged with a crime, often a violent one, and as a result is in danger of losing their life or liberty. Juror safety concerns in criminal trials is of paramount importance to the judge, the lawyers and to the system itself.