Articles Posted in Legal Tip

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In many of our personal injury and wrongful death cases, physical evidence is lost or destroyed long before we are retained by our clients.  After an incident, our clients are typically preoccupied by their injuries and medical treatment while defendants often dispose of the “smoking gun.”  This improper destruction of evidence is referred to as “spoliation.”  Common examples of spoliation include purging documents or records, failing to preserve video surveillance footage, disposing of dangerous objects, and prematurely repairing damaged structures without opportunity for inspection.  A party’s failure to preserve evidence can be extremely prejudicial in personal injury cases because the plaintiff, who bears the burden of proof, may not be able to prove their case without certain evidence.

Florida Courts have established standards for the preservation of evidence and certain sanctions that may be imposed for violating those standards.  In the recent case of League of Women Voters of Fla. v. Detzner, the Florida Supreme Court confirmed that all individuals and entities have a responsibility to preserve evidence in their possession where litigation is “reasonably foreseeable.”  Florida appellate courts have elaborated on this standard by holding that parties who willfully destroy evidence may have their pleadings or defenses stricken altogether.  If a defendant’s pleadings are stricken, the plaintiff essentially wins the case and must only prove the amount of their damages.  In less egregious circumstances, where a party destroys evidence inadvertently or unintentionally, the judge will generally allow an “adverse inference” jury instruction.  In other words, the judge will instruct the jury that they may infer that the party who destroyed the evidence did so because the evidence was unfavorable to their case.

The trial judge has broad discretion to impose sanctions for spoliation of evidence.  This determination will depend heavily on the conduct of the party who destroyed the evidence and all other attendant circumstances.  Often times, any sanctions granted are insufficient and leave the plaintiff with an uphill battle as they prosecute their case without the most crucial evidence.  Accordingly, it is imperative that injured parties retain experienced attorneys who will ensure that all evidence is promptly identified and preserved.

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The essential role of jurors at trial is to determine which party to “believe.”  Issues of law are handled by the judge, while factual issues and the credibility of the parties are solely for the jury.  The more complex the case, the more difficult it can be for jurors to make their important decision. However, when it comes to credibility, there is one constant: the jury will always trust the judge.  In cases involving negligence, what could be more effective for the Plaintiff than the judge instructing the jury that the Defendant was negligent?

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Time RunningGenerally, Continuances favor the Defendant—Not You.  As a plaintiff, you are not compensated until settlement or trial.  Meanwhile, your bills are adding up, your future remains uncertain, and the phrase “the wheels of justice turn slowly…” is not exactly soothing.

Why, then, is your lawyer agreeing to the defendant’s motion to continue the trial to a future date?  It should be noted that there are valid reasons for a plaintiff to agree to, or ask for, a continuance. Issues and exigencies are part of litigation. And you don’t want your attorney to be forced to try your case with inadequate preparation.
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waiver formIn recent years, liability waivers have become standard procedure in virtually every association between corporations and individuals.  Whether a jet ski tour, your typical gym membership, or even placing your child in summer camp, corporations of all sizes are aggressively protecting themselves with liability waivers.  In many cases, corporations are required to obtain liability waivers as a condition of their insurance policy.  These waivers contractually preclude individuals from pursuing any kind of claim in the event of injury, even those caused by the negligence of the corporation’s employees.  The waivers are typically buried within other tedious paperwork and executed by individuals without much thought.  After all, no one expects to become injured.  These waivers then become potentially devastating in the event of a serious or even fatal injury.  Because liability waivers are presumptively valid under Florida law, they deprive injury victims of their day in court on a daily basis.

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Banks. Cell phone service providers. Social networking sites. Insurance companies. Nursing homes.

What do they have in common?

They all attempt to rob you, their customer, of your day in court. And, usually, they succeed.

Forced arbitration is the cancer of the American justice system.  Accompanying—indeed accelerating— the national decline in civil jury trials is the appearance of arbitration clauses in contracts, particularly consumer contracts. These clauses eliminate your right to have your case decided in a court of law, by a jury of your peers; limit the information you can discover to help win your case; and, in many cases, greatly reduce the amount of damages you can ultimately recover against the company you are suing. When an arbitration clause is enforced, your case skips court altogether, going instead to an arbitrator or a panel of arbitrators. This tribunal acts as judge, jury, and —often for plaintiffs’ claims— executioner.

In short, you should avoid arbitration clauses whenever possible. Should you brush up against one, you’ll need experienced legal counsel to protect your rights.

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