Attorney Liens Part 1: What are Attorney Liens?

Work with skilled Tampa attorney lien defense attorneys!

When you hire an attorney, you will normally sign a contract laying out the work you expect the attorney to accomplish and the method by which the attorney expects to be paid for his time. Whether you pay a retainer up front or sign a contingency fee agreement assigning a portion of your potential award to your attorney, few clients expect their attorneys to work for free. A typical agreement also spells out who should be responsible for the costs of filing fees, expert witnesses, and other expenses that are a normal part of your type of lawsuit. You may agree to pay some or all of those costs as the case progresses, or your attorney may agree to pay for everything until he obtains a money judgment in your favor. Each case is unique, and there are many different types of attorney contracts – but the language of yours could have a huge impact on your future relationship with your attorney.

Once the agreement is signed, most attorneys will get to work. Over the coming weeks and months, he and his staff will obtain and review reports, interview witnesses, schedule and attend formal depositions, and engage expert witnesses. He will build a case file, negotiate with the other party, and spend time answering your questions. He will prepare for trial, file motions on your behalf, and work toward achieving your objectives.

Only, things don’t always go according to plan.

Whether you become dissatisfied with your attorney’s representation or whether your attorney seeks to withdraw from your case for reasons of his own, you may be left in the position of needing to hire a new attorney to finish your case. When that happens, your original attorney may, in some but not all cases, still be entitled to payment for the time he spent on your case and for the expenses he has covered to investigate your claim. If you cannot or do not pay him according to the terms of your contract – or if you dispute the amount he is requesting – he has a few options to attempt to force payment.

The two favored options for a Florida attorney who wants to recover costs and fees owed him by a former client are retaining liens and charging liens. Retaining liens, basically, allow an attorney to hold your file – and all the evidence he’s collected while working on your case – as surety against your payment. Charging liens allow him to claim a portion of your future judgment in the case, once you receive it.

There are rules governing an attorney’s ability to file each type of lien, and conditions that must exist before a lien can be filed at all. Those rules and conditions will be explored in Part 2, and retaining and charging liens will be explored in Part 3.

Wagner, McLaughlin & Whittemore has the experience to defend our clients against unreasonable attorney liens and to help their cases get back on track. 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.

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)

The Tampa patent & copyright litigation attorneys at Wagner, McLaughlin & Whittemore can help you!

You work hard – sometimes for years or decades – to create something new. Your invention might change the world or just improve one small corner of it. Your creative work might lift spirits, change minds, soften hearts, or simply entertain. No matter what you intend to get out of your work, you deserve to pursue and maximize profits from your work without others unlawfully profiting from it, too..

Unfortunately, there are those in the world who might seek to take that security from you. Whether they steal your ideas outright or simply try to limit your ability to do as you please with your work product, protecting your work requires an understanding of patent and copyright law.

Copyright

Copyright applies to original writing, music, art, designs, plays, and other creative works of expression. Under federal copyright law, the author or creator has exclusive rights to his or her work from the moment the work is created. Copyright protection is available whether or not the creator marked the work as copyrighted (i.e. “Copyright John Doe” or “© John Doe”) or whether or not that copyright was registered with the U.S. Copyright Office. Copyrights generally protect a work for 70 years after an author’s death.

Once your work is created, you have the exclusive right to decide whether anyone ever sees it, how much to charge for it, and who else can profit from it. If someone else tries to profit from your work without your permission (often known as plagiarism), copyright can empower you to block their attempt as well as require them to compensate you for any profits they made from your work, plus any damages you suffered as a result of their actions.

If you have been the victim of plagiarism or some other violation of your creative copyright, it can be daunting to get compensation on your own. You will be required to register your copyright before filing a claim for infringement under the federal copyright laws, and you will need to prove not only your copyright, but also the plagiarist’s profits and your damages.

Patents

Patents are registered property rights used by inventors that serve to exclude others from using or profiting from their inventions. Like copyrights, patents have expiration dates, but timeframes for patents are rather more severe: patents will protect your invention for 14 to 20 years, depending on the type of patent you need.

Unlike copyrights, patents do not automatically protect your invention as soon as you invent it. In order to gain the advantage of a patent, an inventor must apply for it, disclosing the invention and listing its distinguishing features that will show that it is actually different from the other inventions already in existence.

Though it is technically possible to invent something and market it – or even provide it for free – without a patent, such a scenario is dangerous. If you do not patent your invention yourself, you leave the door open for some other unscrupulous individual to attempt to patent your invention under their own name, which would then give them the rights to exclude you from using, selling, or otherwise distributing your own invention.

If you have invented something unique, it is best to consult with a qualified patent attorney as soon as possible. You only have a year from the date your intention is first sold in commerceto file for a patent, and the U.S. Patent and Trademark Office has complex requirements for patent applications.

The experienced attorneys at Wagner, McLaughlin & Whittemore can answer your questions about copyright and patent law, and we would be pleased to assist you in applying for either. If your patent or copyright has been infringed, you must act quickly to protect your rights. 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.

At Wagner, McLaughlin & Whittemore, we strongly oppose any legislation that seeks to limit the rights of our clients. If you have been injured, contact us today for a free consultation.

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.

Work with the Wagner, McLaughlin & Whittemore attorneys who understand and implement the Florida Bar Ethics Rules.

When some litigants describe their ideal lawyer, they picture a “bulldog” attorney who will fight a no-holds-barred, guerrilla-type campaign designed to flatten the other party and leave them begging for mercy. Some litigants believe that, to be truly effective, lawyers must whip out an arsenal of tricks to bully the other side into submission.

The reality, fortunately, is that rules of the Florida Bar – together with other bar associations across the country – actively prohibit just this type of unfair legal practice.

Florida Bar Rule 4-8.4(d) directs that a lawyer shall not:

[E]ngage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic.

This rule has been used both broadly and specifically, and it serves to curb any tendency within the legal community towards harassment, bullying, or other dirty tricks. Rule 4-8.4(d) has been used, for example, to discipline a lawyer who frivolously reported the other party to the U.S. Attorney merely in an effort to intimidate her. Other attorneys have been disciplined under this rule for dishonest conduct surrounding their decisions to leave their old firms and take clients with them. Yet another attorney was disciplined because his inability to work with other attorneys delayed the administration of justice and increased the costs to his client.

Though it can be tempting to want to employ an attorney who works harder to get around the law than to obey it, most clients find that, in the end, such a lawyer is less effective at achieving the desired result. What is best is to seek an attorney who understands the laws relating to your case as well as the rules of ethics, through his or her long experience practicing to uphold them.

At Wagner, McLaughlin & Whittemore, we strive to zealously and ethically represent our clients and to gain them every benefit allowed by the law. Because we understand the law and the rules that govern the legal practice, we can spend our time correctly applying the law to your case. If you have need of a personal injury, medical malpractice, or legal malpractice attorney in the Tampa, Florida area, contact us today for a free consultation.