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If you’re a plaintiff in a Florida injury lawsuit, particularly one that’s on track to trial, it’s likely at some point you’ll need to undergo a deposition. It can be an intimidating prospect, but a skilled West Palm Beach injury lawyer can help ensure you are fully prepared. woman yellow shirt blue background swearing in at West Palm Beach injury lawsuit deposition

A deposition is a sworn statement given outside of a courtroom, but still under oath. They’re transcribed by a court reporter, and these days often video recorded. Sometimes, depositions can be done remotely. This isn’t generally the preferred method unless there are special circumstances (i.e., the witness lives far away). However, it is one that has become increasingly more common since COVID had virtually everyone on virtual video conferencing apps.

What is the Point of a Deposition?

In tort cases, depositions can prove pivotal in gathering information and evidence that will be key to the case. In general, both sides are going to leverage the deposition to question witnesses and:

  • Establish the events that led to the injury.
  • Detail the medical treatment plaintiff received as a result of the injury.
  • Delve into the impact the injury has had on plaintiff’s ability to work, personal relationships, and overall quality of life.
  • Identify inconsistencies in testimony.
  • Glean information from expert witnesses (if there are any) about their analysis, processes, and conclusions.

When a plaintiff undergoes a deposition, they should know that defense lawyers are likely looking for any statements that might:

  • Indicate you share part of the blame for what happened.
  • Implicate a pre-existing condition as the primary cause of your injuries.
  • Show your injuries aren’t as severe as you claim.
  • Reveal life hasn’t been as significantly impacted as you claim.
  • Uncover that you have not been fully truthful or consistent in your claims.

All of this can make a plaintiff feel very much “on the offensive.” It’s easy to get flustered, get loud, misspeak, etc. But when you know this is coming, you can better maintain your composure and complete the deposition without damaging your case.

Top Mistakes People Make in Personal Injury Case Depositions

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A woman filed a sexual assault lawsuit against singer Steven Tyler of Aerosmith for an alleged incident that occurred “approximately” around 1975 in New York. She’s the second woman to sue Tyler for sexual abuse that occurred nearly 50 years ago, though the other case was filed in California and involved abuse that reportedly went on for some time. sad blond woman dressed in black sitting in a corner with arms folded. attorneys for the sexually abused help those victimized as children seek justice as adults

As attorneys for the sexually abused in Florida, we can say with fair confidence – at least as of this writing – that such cases, all other things equal, likely would not get much traction in the Sunshine State. That is because, as it stands, our state statute of limitations on sexual abuse civil cases is much shorter.

That’s not to say this couldn’t change.

That’s what happened in New York last year, when lawmakers passed the New York State Adult Survivors Act, which temporarily eliminated the statute of limitations on civil sexual assault claims involving adult victims until Nov. 24, 2023 (referred to as a one-year lookback period). This was after the passage of the 2019 Child Victims Act in the same state that provided a one-year lookback window for survivors of childhood sexual abuse to pursue civil litigation that would otherwise be time-barred.

The limit is different from state-to-state. Continue reading

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As a West Palm Beach medical malpractice lawyer, I recognize that it’s so many of these cases are predicated on what doctors did NOT do, as opposed to what they actually did.West Palm Beach medical malpractice lawyer

In a recent Florida medical malpractice case out of the First Judicial Circuit, a jury awarded $1.7 million to the widow of a man who grew increasingly ill after doctors reportedly failed to diagnose him with a condition they should have caught much earlier.

He’d gone to the emergency room in December 2017 with pain and internal bleeding. And although he was released, he never truly recovered after that stay. He died a few years later of congestive heart failure, but it was his widow’s position (with which the jury later agreed) that if his doctors provided him with quality care during that initial emergency room visit, his other conditions would not have worsened and he’d likely have lived longer and with a better quality of life.

In medical malpractice cases, the primary question is not necessarily whether there was a bad patient outcome, heartbreaking as that can be. The  issue is whether we can show:

  • The healthcare provider failed in their duty to provide care aligning with the standards expected of someone with their education, experience, and resources. (This is proven with expert witness testimony.)
  • This failure to provide care aligned with professional standards directly caused or exacerbated the plaintiff’s injuries.
  • The injuries sustained resulted in financial harm.

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Dealing with insurance companies can be a pain, as anyone who’s ever been in a South Florida car accident knows. Lawmakers recognize it too. That’s why there are legal protections in place to ensure fair play. Insurers are legally bound to act in good faith when handling claims. When they don’t, courts can impose financial sanctions. hands of attorneys, seated at a table with hands on documents as they negotiate; a gavel and justice scales are on the table

One example of bad faith insurance is when an auto insurer rejects a fair settlement offer in a pending lawsuit. As our West Palm Beach car accident attorneys can explain, if the case proceeds and the plaintiff wins a judgment totaling 25 percent or more than the settlement offer, the court can order the insurer to pay the plaintiff’s attorney’s fees.

Few things to note: Plaintiffs don’t pay West Palm Beach car accident attorneys’ fees upfront. These services are provided on a contingency fee basis, meaning we aren’t paid unless or until you win. Our fee is derived as a percentage of the amount you win. But when a defendant is required to pay attorney’s fees, it means the plaintiff keeps the entire damage award and the defendant covers our fees. Insurers would obviously rather avoid that outcome.

In a recent case dealing with this issue, Florida’s 2nd District Court of Appeal held that an auto insurer’s long-delayed payment of UM policy limits – after rejecting an earlier lower settlement offer by the plaintiff – amounted to a “confession of judgment” that can be used as grounds to justify an order for the insurer to pay the plaintiff’s attorney fees. Continue reading

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Anyone who has ever sought the services of a South Florida personal injury lawyer – whether for a car accident, slip-and-fall, or medical malpractice – has likely seen or heard the phrase “free initial consultation” in attorney marketing materials. But what exactly is a personal injury lawyer free consultation? Is it really free? Are you agreeing to hire that attorney by booking this consult?South Florida personal injury lawyer free consultation

As our South Florida personal injury lawyers can explain, a free initial consultation is something like a first date – except neither party picks up the tab because there isn’t one. (Initial consultations really are free.) But you can think of them as an opportunity to gather insight regarding the viability and potential value of your case, clarify your goals, get a sense of how the process will work, and determine whether the attorney you’re meeting is someone with whom you can develop a rapport, trust, and general ease.

Here, we offer a deeper dive into what these sessions are – and are not – and how you can come best prepared.

What Are the Obligations in a Personal Injury Lawyer Free Consultation?

Just as there’s no guarantee of a second date after the first, there’s no obligation for you to hire an attorney with whom you meet for a free initial consultation. In fact, it’s generally expected that you’ll meet with more than one personal injury lawyer before deciding which one to hire. Arranging several consultations will also provide you with a more well-rounded view of the key points in your case and what you might expect.

But just as you have no obligation to hire the attorney, the attorney has no obligation to take your case. They may provide you with information, and then regrettably inform you they won’t be taking your case. This usually happens if the attorney feels it’s not a case they can win, either because it isn’t strong enough or they don’t have the depth of skill, experiences, or resources to take it on. Because Florida personal injury lawyers accept cases on a contingency fee basis, meaning they aren’t paid unless their client wins, they are inclined to be selective.

Meeting with an attorney also doesn’t mean you’re obligated to file a lawsuit. In fact, many personal injury claims can be resolved through negotiation before it ever gets to the point of filing a lawsuit.

How Should I Prepare for This Consultation?

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Two years ago, a 53-year-old husband and father walked into a regional hospital with a common inflammatory condition – and was dead within a week. Now,  jurors have awarded his widow $20 million from the doctor who prescribed powerful pain medications for his pancreatitis without the benefit of constant machine-monitoring of his oxygen levels, despite his diagnosis of sleep apnea.Palm Beach medical malpractice attorney

As our Palm Beach medical malpractice lawyers can explain, a big part of this case was about what did NOT happen, as opposed to an active error. Specifically, according to reports on the trial, the doctor failed to even ask whether the patient had a history of obstructive sleep apnea. As several expert medical witnesses for the plaintiff testified, any physician who is prescribing a powerful narcotic should inquire specifically about this condition because it causes the muscles of the throat and palate to close, effectively stopping airflow. This can be perilous even under normal circumstances. But pain medications like Dilaudid, an opioid that is seven (7) times more powerful than morphine, are respiratory depressors. Combine the two, and the risk of a serious or fatal complication skyrockets.

For this reason, the expert medical witnesses testified, the patient should have been placed on a telemetry monitor or pulse oximeter that would have kept careful track of his vital signs while he slept under the influence of the Dilaudid.  Failure to do so, the experts said, fell far short of the standard of care.

The defendant had prescribed the patient increasing doses of the pain medication for more than 18 hours before another doctor discovered him the following afternoon, unresponsive in his bed, heart no longer beating. Emergency resuscitation efforts revived him, but could not reverse the damage done by lack of oxygen to the brain. He was pulled from life support six days later.

Another aspect of this Palm Beach medical malpractice case that our trial lawyers noted was that part of the defense strategy ended up backfiring and being a big win for the plaintiff. For context, this all happened within the first few months of the COVID-19 pandemic. You’ll recall that for a time, doctors, nurses, and pretty much all healthcare workers and facilities were being run ragged. Attorneys for the doctor cited this burnout and lack of personnel and resources as part of the reason why constant monitoring of the patient’s vitals wasn’t feasible. But as the plaintiff’s attorneys noted, this would be all the more reason for the doctor to order machine monitoring. Machines don’t experience pandemic-related burnout.

In essence, the plaintiff’s attorneys took what the defense legal team probably thought was one of its strongest arguments and flipped it on its head. Continue reading

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Damages in Florida personal injury actions are awarded with the intent of compensating plaintiffs monetarily for their losses. As our Palm Beach personal injury lawyers know, damages that first come to mind are things like medical expenses, loss of income, loss of earning capacity, and pain and suffering. But beyond the physical pain one has endured, there’s also the emotional response to that pain, which often includes the reasonable withdrawal from meaningful activities and relationships a person once enjoyed. This is what we refer to as “loss of enjoyment of life.”

Some jurisdictions include “loss of enjoyment of life” as part of the pain and suffering damage award, while others consider it a separate category of damages all its own.man in wheelchair in bedroom with wife suing for loss of enjoyment of life Florida Florida considers loss of enjoyment of life to be its own separate category of damages.

Let’s say that prior to a Palm Beach car accident, the plaintiff (injured person) was active in going to the gym, participating in recreational sports, volunteering with a local charity, and engaging in a satisfying physical relationship with their spouse. After the crash, they’re no longer able to enjoy any of those things, at least not in the same way as they once did. That’s loss of enjoyment of life.

The person would have been able to lead a normal lifestyle had it not been for the injury, but now they can’t. For this deprivation – in the past as well as what will be experienced in the future – plaintiffs can seek damages for loss of enjoyment of life.

As noted in Florida Civil Jury Instructions 501.2, there’s no exact standard for measuring such damage. It must, however, be “fair and just in the light of the evidence.” Non-economic damages such as loss of enjoyment of life are typically only awarded in Florida when one can prove that their injuries were serious and usually permanent.

The types of injuries that can impair your ability to enjoy life may include:

  • Traumatic brain injuries
  • Spinal cord injuries
  • Soft tissue injuries
  • Injuries resulting in chronic pain
  • Loss of sight or hearing
  • Severe scarring or disfigurement

Examples of Loss of Enjoyment of Life

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Often when Palm Beach sexual abuse lawyers talk about sexual assault cases in the legal system, people automatically think we’re discussing a criminal matter. It’s true that sexual assault and battery are criminal acts, and the criminal justice system metes out punishment to those proven guilty beyond a reasonable doubt. However, that’s not the only path to justice. Civil litigation is a means for the survivor to take the reigns and recover financial damages – from the perpetrator themselves as well as third parties whose negligence made the attack(s) possible in a civil Florida sexual assault lawsuit settlement or trial.Florida sexual assault lawsuit settlement

Three basic types of compensation one can pursue in a Florida civil case:

  • Economic
  • Non-economic
  • Punitive

Both economic and non-economic damages are classified together as “compensatory damages.” The intention is to compensate the plaintiff/sexual assault survivor for specific losses. Economic damages are for those things with a clearly identifiable price tag – medical bills, lost wages, etc. Non-economic damages are for things that don’t have a precise dollar figure – pain and suffering, emotional distress, loss of life enjoyment, loss of consortium/companionship, etc.

Punitive damages, on the other hand, are intended to punish the defendant. As noted in F.S. 768.72, punitive damages are still paid to the victim, but judges will only allow plaintiffs to pursue such damages in cases where the defendant engaged in intentional misconduct or gross negligence. This standard may be met in Florida sexual assault lawsuits filed directly against the perpetrator, but it’s a tougher case to make for third-party defendants – and that’s who most of these cases are against. That’s because insurance generally doesn’t provide coverage for crimes/intentional misconduct the way they do for negligence. So suing the attacker directly means you’re going after their personal assets – an endeavor that can be fruitless unless the defendant is personally wealthy.

What is the Average Florida Sexual Assault Lawsuit Settlement Amount?

Many civil sexual assault lawsuits in Florida are resolved through private negotiations between the plaintiff(s) and defendant(s). Because those payout amounts aren’t usually made public, there’s no easy way to provide an average for settlement amounts. They can range anywhere from thousands of dollars to tens of millions. Some of the bigger cases involving multiple plaintiffs and large organization defendants have even resulted in settlements in the hundreds of millions.

Jury verdicts favoring the plaintiff tend to be a bit higher than settlement amounts (which is part of the incentive for defendants to settle). A few examples over the years: Continue reading

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In a Florida criminal case, if you intentionally destroy/tamper with evidence, it can be a third-degree felony. But what if it’s a civil case? Palm Beach injury lawyer evidence

Anyone who files a Palm Beach injury lawsuit will soon come to understand the pivotal role of evidence. A fact can be 100 percent true, but virtually meaningless without concrete proof. More weight will always be given to assertions supported by strong evidence, as opposed to one side’s word versus another’s.

If evidence central to a civil case is destroyed, it’s called spoliation, and it doesn’t even have to be intentional for the court to impose sanctions. As for the exact penalty, the consequences depend on:

  • Who had control of the evidence.
  • Whether the possessor/controller was a party to the civil case and in some way benefited from its loss.
  • The extent to which the loss of that evidence prejudiced the other side in its ability to prove/disprove pivotal facts.
  • If the person/organization was a non-party to the case, whether they owed the duty – by contract, statute, or timely-served preservation/discovery request – to preserve the evidence.

Since the 1980s, Florida courts have repeatedly held that when physical evidence is lost, misplaced, destroyed, or otherwise made not available AND it fundamentally prejudices the other side’s chance to pursue/defend a claim, courts have the authority (and broad discretion) to impose sanctions. These can include:

  • The legal presumption that key facts pertaining to that evidence would have benefitted the other side.
  • Dismissal of the claim (when the plaintiff is the spoliator).
  • Granting default judgment in favor of the party prejudiced by the loss of that evidence.

Types of Spoliation in Palm Beach Injury Lawsuits

There are two basic types of spoliation: First-party and third-party. Continue reading

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As Palm Beach wrongful death lawyers, we understand just how precious and fleeting life can be. No dollar figure can ever truly quantify the depth of loss when someone we love is gone from us forever. That said, one of the things our attorneys strive to identify early in these cases is the potential monetary value, as it’s assigned within the framework of the civil justice system. This can seem callous, but it comes from a place of care – because it’s how we provide grieving loved ones with a crystal-clear picture of the costs/benefits of pursuing a legal claim against those believed responsible for the wrongful death. The reality is grief and healing is exhausting work – and it leaves little energy for legal long-shots. Empowering prospective clients to make informed choices is one of our guiding principles at Halberg & Fogg. Palm Beach wrongful death lawyers

To provide an accurate valuation, one of the first things that must be determined is economic damages. For those who may be unfamiliar, the term economic damages in tort law refers to the objective financial losses one has incurred as a result of the harm caused by the defendant. These are things like:

  • Medical bills.
  • Income loss.
  • Future income and benefits loss.
  • Funeral/burial expenses.

These are different from non-economic losses, which are more subjective adverse impacts, such as pain and suffering, mental anguish, and loss of consortium. (Loss of consortium is a separate claim that may be filed by either surviving spouses or children under age 25; if those don’t exist, they may be claimed either by adult children or decedent’s parents).

As of this writing, neither economic nor non-economic damages are capped in Florida. An effort by state lawmakers to cap non-economic damages in Florida medical malpractice wrongful death cases was struck down by the state supreme court in 2017.

F.S. 768.20 states that the personal representative of the decedent’s estate is the only person who has the right to move forward with a wrongful death claim, and they do so on behalf of survivor(s).

Lost Earnings

Economic damages from lost earnings in Florida wrongful death cases stem from two elements: Continue reading

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