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.

Few cases end up in the Florida Supreme Court, and most Floridians, it is safe to say, will never have the pleasure of meeting the men and women who sit as Florida Supreme Court justices.  Still, the lives of the state’s citizens are affected every day, in ways large and small, by decisions rendered by the state’s highest court. The Justices serving on the Florida Supreme Court carry out the heavy calling of interpreting the Florida Constitution and ensuring that cases brought before them are decided fairly.  The current court is made up of seven diverse individuals, each with an impressive background of service and excellence.

Chief Justice Jorge Labarga

On June 30, 2014, Chief Justice Labarga became the Florida Supreme Court’s first Hispanic Chief Justice. Born in Cuba, he came to Florida at the age of 11, eventually earning his law degree at the University of Florida. Before his appointment to the high bench, he worked as a public defender, a state prosecutor, and a private litigator handling personal injury and criminal defense cases. He’s been on the bench since 1996, first as a Circuit Court judge and then on the Fourth District Court of Appeals, before his 2009 appointment to the Florida Supreme Court.

Justice Barbara J. Pariente

Justice Pariente hails from New York but has been a Floridian for over forty years.  After graduating fifth in her class from George Washington University Law School in 1973, she worked as a judicial clerk in the Southern District of Florida, and then practiced in West Palm Beach, specializing in civil trial litigation. She has a history of service within the bar and her local community and has been recognized nationally for excellence in legal practice. She was an appellate judge for four years before being appointed to the Florida Supreme Court in 1997, where she served as Chief Justice from 2004-2006. Justice Pariente has worked hard for the last decade to improve how the court system works with families and children.

Justice R. Fred Lewis

Like his colleagues, Justice Lewis is a decorated justice, having earned awards for excellence while routinely serving in leadership positions. He graduated third in his class from the University of Miami Law School in 1972 before completing the United States Army AG school at the top of his class. He finally entered private practice after his military discharge, working in civil trial and appellate litigation. He was appointed to the Florida Supreme Court in 1999 and has also served a term as Chief Justice. In 2002, the University of Central Florida created the Justice R. Fred Lewis Award, given annually to an individual demonstrating the highest level of social responsibility.

Justice Peggy A. Quince

Justice Quince’s stellar career has earned her numerous recognitions ranging from public service awards to lifetime achievement awards. She received her JD from the Catholic University of America in 1975 and has received two honorary doctor of laws degrees. She began her legal career in Washington, D.C. and Virginia, moving to Florida in 1978. For more than thirteen years, she worked as an assistant attorney general in the criminal division of the Florida Attorney General’s office, where she handled appeals and death penalty cases and worked five years as the Tampa Bureau Chief. In 1993, she became the first African-American woman to be appointed to a district court of appeal, and was thereafter appointed to the Florida Supreme Court in 1998, the first African-American woman to hold that honorable seat.

Justice Charles T. Canady

Justice Canady received his law degree from Yale Law School in 1979 before entering private practice in Florida. From 1984 through 2001, Justice Canady served three terms in the Florida House of Representatives and four terms in the United States House of Representatives. While in Washington, Justice Canady was a member of the House Judiciary Committee and served three terms as Chairman of the House Judiciary Subcommittee on the Constitution. After leaving Congress, he served as General Counsel to Governor Jeb Bush before being appointed to the Second District Court of Appeal in 2002. He was appointed to the Florida Supreme Court in 2008 and served as Chief Justice from July 2010 through June 2012.

Justice Ricky Polston

From Graceville, Florida, Justice Polston started his professional life as a CPA, after earning his license in 1978. He graduated from Florida State University College of Law with high honors in 1986 and entered private law practice in 1987. He was appointed to the First District Court of Appeal in 2001 and has served as an Adjunct Law Professor at Florida State University since 2003. Justice Polston was appointed to the Florida State Supreme Court in 2008. Like the other Justices, Justice Polston can boast several awards, both from school and from his excellence in law practice. He is the father of ten, including six adopted siblings.

Justice James E.C. Perry

Justice Perry earned his law degree from Columbia Law School in 1972, after serving as a first lieutenant in the U.S. Army. While his work in private practice specializing in civil and business law is remarkable, much of his time has also been dedicated to improving the lives of children in his community. He founded the Jackie Robinson Sports Association, a baseball league serving hundreds of at-risk children. In 2000, he became the first African-American appointed to the Eighteenth Judicial Circuit, serving as Circuit Chief Judge from 2003-2005. He was appointed to the Florida Supreme Court in 2009.

As citizens and attorneys, we at Wagner, McLaughlin & Whittemore respect these wise jurists and support them as they navigate the difficulties of such important positions.

If you are in need of legal counsel in the Tampa, Florida area, 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.

It used to be that citizens in Florida were barred from suing the state or any of its agencies or subdivisions. Until the mid-1970’s, if you were injured or damaged in any way by negligent governmental action, you could not recover any amount of money from the state because of the doctrine of sovereign immunity.

In 1975, however, Florida enacted Florida Statutes section 768.28, which provides a partial waiver of Florida’s sovereign immunity. Since then, Florida citizens have been able to recover damages from the state, subject to a few very important exceptions and limitations.

Certain Actions Only

Florida, along with its subdivisions and agencies, may be sued for some negligent or wrongful acts or omissions, but generally may not be sued for bad policy decisions. For example, the state is typically immune from suit for the decision not to place a stoplight at a busy intersection but is liable for its negligent failure to maintain a stoplight at a busy intersection. Police officers are often immune from liability, as demonstrated by court cases protecting the state from liability in cases ranging from ordinance enforcement decisions to prisoner transfer to firefighting. This immunity isn’t absolute, however, and state agencies have been found liable for such actions as failing to detect child abuse or for failing to correctly follow police procedures in a traffic stop.

If you have been damaged because of the negligent decisions or actions of a state agency, your ability to recover will depend in large part upon the type of action or decision that is at the core of your injuries.

The State or the Employee

Your attorney will have to advise you as to whether you should sue the state or its employee or both. Florida Statutes section 768.28(9)(a) provides that officers, employees, and agents of the state may only be sued personally if they “acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.”  If that happens, or if the employee acts “outside the course and scope of her or his employment,” then the state is not liable for damages resulting from that employee’s actions.

Damage Caps

Even when a state agency or employee may be held liable for negligence, the damages that an injured person may recover are limited to a total of $200,000 per person and $300,000 per incident. If your damages exceed those amounts, you can only be paid for the excess amount after the case is referred to the legislature for further action, or if the agency has insurance with a higher coverage limit and decides to use it to settle your case. Keep in mind that even if the agency has insurance with a higher coverage limit, its use of that higher coverage is discretionary: The state does not waive its liability limits by obtaining insurance with greater coverage amounts.

Florida’s sovereign immunity law contains hotly debated gray areas and shifting Supreme Court positions. If you have been injured by the actions of the State of Florida or by one of its agencies or subdivisions, you will need to obtain the advice of an attorney who understands the current case law and has experience in tort actions against the State. At Wagner, McLaughlin & Whittemore, our experience in this area will help guide you in recovering the full amount allowed by law. Contact us today.