When Should I Consider a Florida Claim Bill?

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.

Why Wagner, McLaughlin & Whittemore Attorneys are Like Paul Newman & Tom Cruise

The ABA Journal recently published an issue covering “100 Years of Law at the Movies,” exploring Why Hollywood Loves Lawyers. It concluded that “[t]he literature of law values the object lesson over the cheap thrill. Audiences crave universal truths, and by the time the closing credits roll, movies about the law have left behind wisdom to live by.” We agree with that sentiment. Whether it’s Henry Fonda corralling his fellow jurors in 12 Angry Men, or Tom Cruise cornering “you want me on that wall” Jack Nicholson in A Few Good Men, lawyer movies can and usually do pack a mighty moral wallop. It’s no surprise that Atticus Finch found himself at the top of an American Film Institute list of famous heroes of the last 100 years. As the Institute rightly notes, “Heroism that acquits the falsely accused will hold its own against any nonstop action flick.”

We don’t practice criminal law at Wagner, McLaughlin & Whittemore, but we feel that our quest for justice is no less rigorous and duty bound than that of Mr. Finch in To Kill a Mockingbird or of Matthew McConaughey in the gripping tale A Time to Kill. We, too, strive daily to see that wrongs are righted. Fortunately, Hollywood agrees that civil practice can be just as compelling – and just as filled with white-hat lawyers making society better and more just, one client at a time.

Below is a short list of some of the great lawyer movies dealing with civil lawyers and our fight to improve the lives of our clients.  We not only love these movies; we are proud of these civil justice-fighters, real and fictional.

Erin Brokovitch: “Not personal? That is my work! My sweat! My time away from my kids! If that’s not personal, I don’t know what is.”

Who doesn’t know of Erin’s true-life story fighting against a massive power company to get justice for hundreds of residents injured by contaminated water? What began as a personal quest for employment culminated in a life-changing verdict for the townspeople poisoned by Pacific Gas & Electric’s dangerous disposal practices. Though she wasn’t a lawyer herself, she and attorney Ed Masry certainly earned their badges as civil law heroes.

A Civil Action: “Now the single greatest liability a lawyer can have is pride. Pride… Pride has lost more cases than lousy evidence, idiot witnesses and a hanging judge all put together. There is absolutely no place in a courtroom for pride.”

Like Erin Brokovitch, A Civil Action is based on a true story of a lawyer who took on a large company responsible for damaging the health of the nearby townsfolk, this time causing terminal leukemia in several children. The story is a wonderful portrayal of a team of attorneys who quite literally risk everything to win justice against all odds.

The Insider: “You are important to a lot of people, Jeffrey. You think about that, and you think about them. I’m all out of heroes, man. Guys like you are in short supply.”

Big Tobacco went to war when a single courageous whistleblower, Dr. Jeffrey Wigand (played by Russell Crowe), agreed to a 60 Minutes interview to expose the dangers of smoking. The Insider tells the tale of the legal battle that followed as Big Tobacco pulled out all the stops to suppress the interview.

Rainmaker: “Every lawyer, at least once in every case, feels himself crossing a line that he doesn’t really mean to cross… it just happens… And if you cross it enough times it disappears forever. And then you’re nothin’ but another lawyer joke. Just another shark in the dirty water.”

A fictional story steeped in legal ethics, Rainmaker tells the tale of a medical malpractice case against an unscrupulous insurance giant. Not every medical malpractice case we take rises to the level of a Hollywood blockbuster – but we never forget that every single case we accept is of enormous importance to the health and life of that individual client.

The Verdict: “I came here to take your money. I brought snapshots to show you so I could get your money. I can’t do it; I can’t take it. ‘Cause if I take the money I’m lost. I’ll just be a… rich ambulance chaser. I can’t do it. I can’t take it.”

Another medical malpractice story starring the fabulous Paul Newman, The Verdict features a once-ostracized lawyer who resists enormous personal and industry pressure to accept a large settlement for his client – because he believes, when no one else does, that his client deserves even more than that. This great movie dramatically illustrates why real-life potential clients should not be unduly “wowed” when lawyers advertise their “big-dollar” settlements – because you never know if that settlement, though large, was really as fair for the client as it was for the lawyer.

At Wagner, McLaughlin & Whittemore, we work hard every day to emulate the commitment and heroism of the lawyers – real life and fictional – who stand up for the rights of their clients despite the strength of the opposition and against the pressure to settle too early, when doing so is not in our clients’ best interests. If you live near Tampa, Florida, and need a personal injury, medical malpractice, whistleblower, or wrongful termination attorney, contact us today for a free consultation. We may not have Paul Newman’s blue eyes or Tom Cruise’s boyish good looks – but we guarantee that our attorneys will work on your case with the same passion for justice that you see in their movies.

 

(Movie quotes from IMDb)

Let the Tampa litigation attorneys help you understand your privacy rights!

Like most Americans, you probably share a large portion of your life online. You take a trip to the lake and snap a few pictures of yourself soaking up the sun, splashing in the water, and maybe drinking a few beers…then post those pictures for your select group of “Facebook Friends.” You’ve been careful to set high privacy settings on your account so that current or future employers can’t see you making a fool of yourself, but you want to share your crazy life with the people who matter most.

Beware: those people could include opposing counsel and, possibly, members of a future jury.

This last January, Florida’s Fourth District Court of Appeal made that clear. In Nucci v. Target Corporation, 2015 WL 71726 (4^th DCA 2015),the Court upheld the trial court’s order requiring the plaintiff in a slip and fall case to turn over photographs that she had posted on her social media accounts. Specifically, the plaintiff had to turn over to the defendant Target all photographs posted on her accounts from two years before her  fall through the present.

Though the Court considered plaintiff Nucci’s argument that her Facebook posts were on a high privacy setting, it ultimately rejected her reasoning, explaining that the “relevance of the photographs overwhelms Nucci’s minimal privacy interest in them.” Indeed, the opinion cited to earlier cases that allowed discovery of personal social networking information and concluded that, generally, “the photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established.”

There are, fortunately, some limitations. As with all other discovery requests, opposing counsel still must show that the social-media postings and photos being sought are relevant to the case. Not everything in your social media accounts can be snagged. .

In the Nucci case, the Court ruled that three-plus years of personal photographs were relevant because the plaintiff was claiming that her slip and fall had caused permanent injuries and had drastically changed her lifestyle. Target had obtained surveillance video of Nucci carrying heavy jugs and bags, so the Court was satisfied that her photographic self-history was a relevant source of evidence about how she’d lived her life both before and after the incident.

If you are concerned that your social media posts could be damaging in litigation, it is best to consult with an experienced attorney. At Wagner, McLaughlin & Whittemore, we can help you understand all aspects of your rights to privacy – and the limitations on those rights if and when a lawsuit proves necessary. Contact us today for a free consultation.

Most trial lawyers representing plaintiffs in civil cases work on a contingency- fee basis – meaning they don’t get paid anything unless and until they collect an award for their clients. This can translate into heavy risks for the attorneys involved, as some of the most important lawsuits involve years of work and hundreds of thousands of pages of court filings before a settlement or court resolution is reached.

Each year, Public Justice awards a Trial Lawyer of the Year Award to recognize those lawyers who took risks to litigate important cases and right egregious wrongs. The 2015 award winner will be announced on July 13. We at WM congratulate each of the finalists for their tireless efforts and demonstrated commitment to justice. The five finalists are as follows:

David v. Signal International

Just the first in a string of related cases stretching over seven years, this case went all the way to a complex jury trial and proved that Signal International was responsible for labor trafficking, fraud, racketeering, and discrimination. The attorneys in the case proved that Signal International lured workers from India with false promises of permanent residency and good jobs. Once the workers were here, they were packed into tiny trailers and charged over $1,000 per month. Evidence at trial showed that when the workers tried to organize to take action, Signal International locked them in trailers and fired their leaders.  At the conclusion of the four- week trial, the jury unanimously awarded the workers $14-million.

Disability Rights Network of Pennsylvania v. Wetzell

After negotiations with the Pennsylvania Department of Corrections were unsuccessful, this case was filed and quickly forced a negotiated settlement from the DOC on behalf of mentally ill prisoners held in solitary confinement. The settlement ensured prison reforms including regular mental- health evaluations for all prisoners, no solitary confinement for mentally ill prisoners (absent “exceptional circumstances”), and limitations on restraints and other disciplinary measures for prisoners with severe mental illnesses.

Elwin v. NS Home for Colored Children & Province of Nova Scotia

This case ended over 70 years of horrific physical, sexual, and emotional abuse of African-Canadian orphans placed in the Halifax Home for Colored Children. When a series of personal- injury suits failed to convince the government that this “home” was abusive, the Elwin class- action case was filed in 2011. Finally, after a 14-year battle, the Canadian government and orphanage conceded what was happening and agreed to a $34-million settlement.

In re McCray, Richardson, Santana, Wise and Salaam Litigation

In 1989, five young African-American and Hispanic teenagers were arrested and convicted of rape, serving between seven and thirteen years in prison. In 2002, the “Central Park Five” were exonerated and their coerced confessions exposed. Over the next 13 years, their attorneys fought through hundreds of depositions and hundreds of thousands of pages of discovery until the city finally agreed to a settlement of $41-million.

Navajo Nation v. U.S.

Attorneys for the Navajo Nation argued that for 70 years, the U.S. government mismanaged its trust of 14- million acres of land belonging to the Navajo Nation, depriving the Nation of royalties owed to it. At the conclusion of this eight-year case, the United States agreed to pay $554-million to the Navajo Nation.

At Wagner, McLaughlin & Whittemore, we are proud to be part of a system that holds governments and corporations accountable for their wrongdoings. If you have been injured – physically, financially, or otherwise – by the actions of the government or a corporation, obtaining fair compensation can seem like a daunting, impossible task. We are here to help. Contact us today for a free consultation.

ACTL Fellows: Alan Wagner, John McLaughlin, and Bill Wagner

The American College of Trial Lawyers (ACTL), the most selective group of trial lawyers in North America, was founded in 1950 with the goal to improve the practice of civil and criminal trial law. Its mandate is “to improve and elevate the standards of trial practice, the administration of justice and the ethics of the profession.” It counts as “honorary fellows” each of the U.S. Supreme Court justices, as well as the justices of the Canadian Supreme Court.

Membership in ACTL, though much sought-after, is difficult to obtain. ACTL guidelines, in fact, dictate that only 1% of the local attorney population of any given state or province may become an ACTL “fellow,” and its current membership includes a mere 5700 fellows, encompassing the United States and Canada. An attorney can become a member only by invitation after a minimum of 15 years of active trial practice experience. Only those trial attorneys who have earned the respect of the legal community, through their talent and integrity, have a shot at becoming a member.

As part of upholding its mandate, ACTL sponsors awards encouraging judicial independence, justice programs, courageous advocacy, and improvements to the litigation process. The Emil Gumpert award, for example, is an annual $100,000 award given to a program designed to improve the administration of justice.

ACTL is active in educating its own members as well as attorneys throughout Canada and the United States. It publishes codes of pretrial and trial conduct, with forwards by the Chief Justices of the United States and Canada. It has also produced trial advocacy materials for lawyers and judges, and it sponsors law student competitions in trial and appellate advocacy.

Wagner, McLaughlin & Whittemore is proud that three of our attorneys are ACTL fellows: Alan Wagner, John McLaughlin, and Bill Wagner.

Together with the rest of our committed team of attorneys and staff, these three lead Wagner, McLaughlin & Whittemore in zealously fighting for our clients’ rights.

If you have been injured through someone else’s negligence, our attorneys have the experience, passion, and reputation to be your voice in court. Whether your case deals with personal injury, legal malpractice, or medical malpractice, contact us today for a free consultation.

 

Florida law allows parties in a lawsuit to make Offers of Judgment in advance of trial, which can have a significant impact on the case. It is important to know how Offers of Judgment operate so that you can make a reasoned and informed decision about whether to make an Offer of Judgment yourself and whether to accept one offered by the other side.

Briefly, an Offer of Judgment includes the entire amount sought as a fair verdict award by the party making the offer. If it is rejected and the verdict heavily favors the side that made the offer, the losing party may have to pay a part or all of the prevailing party’s attorney’s fees.

Consider the following hypothetical:

In an auto-accident case, the plaintiff claims that the total damages she suffered amount to $150,000, but she is willing to settle for $100,000 to avoid court. Meanwhile, the defendant claims that the plaintiff’s damages were only around $70,000, and that she contributed equally to the accident, so his share should only be $35,000. He’s willing to settle the case for $50,000 to avoid trial.

Imagine that the plaintiff makes an Offer of Judgment for $100,000 and it is not accepted within thirty days. The case ends up going to trial and the court awards the plaintiff $125,000, an amount that is 25% greater than the amount requested in the Offer of Judgment. The defendant may now be required to pay reasonable costs and attorney’s fees incurred by the plaintiff after the Offer of Judgment was served.

Now imagine instead that the defendant makes an Offer of Judgment for $50,000 which is not accepted by the plaintiff within thirty days.  At trial, the court awards the plaintiff only $37,500, an amount 25% less than the defendant’s Offer of Judgment. Now it is the plaintiff who may be required to pay the defendant’s reasonable costs and attorney’s fees incurred by the defendant after the Offer of Judgment was served. More, the defendant is often allowed to deduct those fees and costs from the award amount before it is paid.

Offers of Judgment can be an effective negotiating tactic, and a way to strongly suggest to the other side that you feel your evaluation of the case is correct. Importantly, if you cannot resolve the case before trial, the other side cannot tell the jury about your Offer of Judgment in order to convince them to give you less than you’re asking for.

Consult with your attorney about whether an Offer of Judgment would be appropriate in your case, and especially consider whether you should accept the Offer of Judgment proposed by the opposing party.

The law firm of Wagner, McLaughlin & Whittemore has experience in offers of judgment and all other aspects of civil litigation on behalf of their Tampa, Florida clients. Contact us today for a free consultation.