Access to Civil Justice
Work with qualified Tampa civil justice lawyers!
When someone is accused of a crime but cannot afford an attorney, the State is required to provide them with an attorney. This attorney then represents that person though all stages of their criminal case, while filing motions and negotiating on their behalf to ensure a just result.
Criminal justice representation is acknowledged as a basic American right – but what about civil justice representation? While contingency fees allow most to have access to an experienced attorney for personal injury cases, other types of civil justice are neglected. Low- and moderate-income Americans get divorced just like high-income Americans do – and they would benefit just as much from the assistance of an experienced attorney to help them obtain a fair distribution of their assets. They need skilled advice to decide matters such as child custody and child support, to seek guardianships and protection orders. They need wills and contract assistance. They often need to understand tenant rights, eviction protections, and debt-relief options.
In Florida as in much of America, however, access to civil justice is mostly available only to those who can afford an attorney. Though there are legal aid options in some cases, they are necessarily limited to those with the most acute needs and the lowest of incomes.
To address these unmet needs, Florida has formed the Florida Commission on Access to Civil Justice, by administrative order of Florida Chief Justice Jorge Labarga. The Commission’s Interim Report, released on October 1, 2015, indicates that the members have identified some “concrete steps” to assist poor and middle-class Floridians in accessing legal help for life-changing problems. The initial recommendations call for such actions as a dedicated site to connect Floridians with existing legal-aid resources, enlisting law professors and retired judges to advise clients as pro-bono “emeritus attorneys,” and designating left- over class- action funds to help legal- aid expenses.
At Wagner, McLaughlin & Whittemore, we support and are excited by this movement toward the goal of providing quality legal representation for all Floridians. We applaud the Commission’s initial efforts and hope to see even more progress in the months and years to come.
The Florida Legislature has provided a system whereby injured parties – from drivers struck by reckless police cars to wrongfully convicted prisoners – can sue the government in a circumstance where a private person would be liable , piercing the protections of sovereign immunity. But the process isn’t easy, and full compensation may be elusive. At the outset,, the sovereign immunity protections provide a damage cap to such liabilities, in the amount of $200,000 per person and $300,000 per incident. If your damages exceed that cap, you may be required to complete the complicated claim bill process in order to receive full compensation.
Claim Bills Cannot be Filed Unless a Party Exhausts Other Remedies First
The first step in each claim against the government is not much different from any other tort claim. You file suit, name the defendants, go through the discovery and negotiation process, and, if necessary, have the matter decided in a court of law. Depending on the governmental agency involved, there may also be an administrative process to navigate in order to reach a resolution.
When the court and administrative process works in your favor, you will end up with a judgment or negotiated agreement as to your damage amount. If that amount is below $200,000 per person and $300,000 per incident, the agent or entity should pay it and resolve the matter. If, however, the amount of your damages is found to be well above that number, you may choose to seek additional funds.
Insurance in Excess of the Cap is No Guarantee of Payment
The governmental officer or agency may have insurance coverage that exceeds the damage cap amount. If your damages are within the insurance coverage, the governmental entity may choose to settle your case out of the insurance policy. The decision to do so is, however, entirely within the discretion of the entity in question. If that agency or entity won’t release the funds, you will have to file a claim bill to attempt to receive full compensation.
Florida Claim Bill – Just a Bill
Part of the reason that you must exhaust all other remedies first is that a claim bill faces an uphill battle: You are asking, in essence, for the legislature to allocate funds out of the public coffers to cover your adjudicated damages. Though on its face that only seems fair, legislators may fear that they will gain few political benefits from giving money away, no matter how deserving the cause or case.
If you do decide to proceed, understand that a claim bill is filed with both the Florida Senate and the Florida House of Representatives, and must be passed by both legislative bodies. The bill must contain statements of the history of the case, the amount of the damages (previously decided by judgment or negotiated stipulation), and how much has already been paid by the officer or agency.
A claim bill must be filed within four years of the incident, and you should file before August 1 to increase the likelihood that your bill will be heard during the next regular session.
Once a claim bill is filed, a Special Master is appointed. The Special Master is charged to complete a separate discovery process, examine the evidence in the case through investigation and testimony, and decide what to recommend to the legislature in regards to the bill. The Special Master is not bound by jury verdicts or party stipulations, and may decide that a claim is worth less or even more than what was decided previously. Finally, the Special Master will prepare a formal recommendation that the bill be reported favorably or unfavorably and explain the facts and analysis that led to that recommendation.
The Special Master’s report is made available to members of the House and the Senate who must then vote on your claim bill, just like with any other piece of proposed legislation. Also like any other proposed piece of legislation, if your case is likely to be unpopular (as is almost any case seeking to allocate taxpayer funds away from the taxpayers at large), be prepared to face difficulty in obtaining a spot on the calendar for floor debate.
In the rare case that a claim bill is passed by the legislature, all parties must sign the settlement agreement before the case is considered resolved.
At Wagner, McLaughlin & Whittemore, we have experience in navigating through the often-frustrating Florida claim bill process, and we can help you understand how to proceed. If you have been injured by an officer or agency of the government, contact us today for a free consultation.
Work with Tampa’s Experienced Class Action Litigation Attorneys!
Imagine that you purchase a wonderful new product – an energy drink or a new kitchen tool, for example. You consume or use the product but all does not go well. The energy drink causes you severe stomach distress or perhaps even exacerbates an existing condition, requiring a doctor’s care. The kitchen tool malfunctions, requiring stitches or destroying your countertop. All in all, your damages don’t amount to much: a few hundred or a few thousand dollars or even less, but you’d like to be able to encourage the company that manufactured the product to either improve it or stop making it. You don’t want anyone else to suffer like you did.
Now you face a dilemma: Do you spend thousands of dollars in court costs and attorney’s fees to prove a point and recover a few hundred dollars?
Fortunately, there is sometimes another option: a class action lawsuit. If others used the same product and were similarly injured by it, you can all get together and sue for the total amount of your damages, rather than each of you trying to bring the suit individually. Class action suits are designed to promote recovery in cases where the cost of litigation is likely to outweigh the damages of a single plaintiff. It allows big corporations to be found liable for harm they’ve caused on a small or large scale (think Erin Brockovich) to large groups of plaintiffs.
Now, however, a handful of senators are trying to severely limit this protection.
On April 22, 2015, U.S. Representative Bob Goodlatte (R-Virginia) – the head of the House Judiciary Committee – introduced H.R. 1927, a bill purportedly seeking “to improve fairness in class action litigation.” Representative Goodlatte’s bill, if successful, would limit classes of plaintiffs in federal cases to those who suffered an injury (i.e., damage to body or property) “of the same type and extent as the injury of the named class representative or representatives.”
The key limitation, here, is the phrase “same type and extent.” Contrary to the bill’s purported purpose, that limitation would have a profound effect on the ability of plaintiffs to form classes large enough to create and maintain effective class action lawsuits.
To illustrate, imagine that, in the kitchen tool example above, the small appliance damaged your expensive granite countertop, while your neighbor used the same appliance and damaged her pressboard and plastic countertop. Even though you both used the same appliance and both damaged your countertops, because the extent of your damages is vastly different in value, the limitation proposed by H.R. 1927 would require you each to be in a different “class” of plaintiffs.
Again, to use the energy drink example, if your use of the drink only resulted in severe abdominal cramps and a few days of lost work, but your brother was bedridden because the drink caused a flare-up of his existing medical condition, you would be separated into two different classes because your injuries were not the same “type.”
This bill, of course, is fair only for corporations who dislike being sued. The more that corporations can limit the size of plaintiff classes, the less likely it becomes that any class will be large enough to challenge them in court. The smaller the classes, the smaller the potential settlement, and the smaller the odds that the settlement will cover the legal fees required to bring suit. Soon, defective products will go unchallenged because no group is large enough to force change.