Personal Injury FAQ’s (part 2)

An expert witness is somebody who didn’t necessarily witness your accident, but who is able to testify due to their training, experience and/or knowledge. Expert witnesses in your case will review and analyze materials in your case and offer various opinions in court.

Expert witnesses include accident re-constructionists (who analyze accidents and offer opinions about their causes and fault), biomechanical experts (who analyze the movement of bodies in accidents and testify as to the causation of injuries), “human factors” experts (who testify as to human factors such as reaction time, ability to focus, ability to perceive, distraction, processing speed, etc.), vocational rehabilitation experts (who evaluate injured people and their jobs and determine what type of work, if any, those injured people will be able to do), economists (who attempt to quantify the amount of money injured people will lose as a result of their not being able to work), life care planners (who attempt to determine how much the medical treatment of injured people will cost), engineers and experts in various products, building code experts (who determine if buildings and structures have been built up to code), roadway construction engineers, and doctors who review other doctors’ treatment for malpractice or negligence.

Depositions of expert witnesses are governed by Florida Rule of Civil Procedure 1.390.

Yes, the defense/defendant in your case can request to see/inspect your Facebook page – including postings, pictures, status updates, etc. This is the same for Instagram, Twitter and other social media pages.

It is for this reason that you need to be careful what you put on Facebook and other social media. You should not talk about the case on social media at all.

However, if you’ve already put things on Facebook or social media regarding your accident or case, do not take them down. Anything you put on social media is considered evidence in your case, and, if you take it down, it could be seen as destruction of evidence.

Yes, you can get the cell phone records of the defendant in your case. You can get cell phone records from a simple discovery request such as a request to produce. You may also be able to get them by using a subpoena.

The defendant’s cell phone records may be particularly helpful if you were involved in a car accident. If you were injured in a vehicle accident, the defendant’s cell phone records may be useful to show that the defendant was on the phone (texting and driving, on/looking at Facebook, etc.) at the time of the accident. This could go to show that the defendant was distracted driving and can be used to argue that the defendant must have been at fault for the accident.

Yes, the defense in your case can always do surveillance on you. The defense can videotape you in any public place.

Further, the defense does not need to tell you before doing so – so you might not even know that you are being surveilled. Once the surveillance has been complete, the defense is required to tell you if you inquire about it and must give you a copy of the surveillance tape if it is going to be used/played at trial.

Most likely yes. If you are not able to settle your case earlier, the defense in your case will most likely want to take your deposition. In this deposition, the defense attorney will ask you a series of questions about your accident, your injuries and your current condition.

You attorney will be present with you for the deposition in order to protect you and object to questions that the defense isn’t allowed to ask. A court reporter will be present too. The court reporter will type down/record everything that you say, and this is what makes the deposition important – it can be later in trial if your case makes it that far (i.e., doesn’t settle).

The use of depositions is governed by Florida Rule of Civil Procedure 1.330.

There is no set answer for this. It all depends on the type of deposition, witness being deposed, type of case, etc. Depositions can take minutes or days.

If you file a lawsuit and sue a defendant, the defendant has the right to take your deposition in the county where the lawsuit was filed. The thinking/logic behind this is that, if you filed a lawsuit and sued, then you should make yourself available to be deposed in the county where you filed the lawsuit.

Your deposition will take place in a court reporter’s office, your attorney’s office, or the defense attorney’s office.

Yes, after your deposition, you will be given an opportunity to review the transcript. Further, you will have an opportunity to correct any errors in the transcript. However, if you make any changes, the defense may have a chance to “re-depose” you on the changes.

Yes, your deposition can be used against you later in court – which is why it’s so important. For example, if you say something different in court from what you said in your deposition (i.e., if you change your story), the defense can “impeach” you in trial and try to make you look bad.

An Examination Under Oath (EUO) is similar to a deposition, except an EUO is usually taken before a lawsuit is filed in your case. As such, an examination under oath is usually taken by an insurance adjuster, rather than an attorney. The examination under oath may either be recorded or unrecorded.

The use of examinations under oath is governed by Florida Statute 627.736.

An insurance adjuster is the person at the insurance company in charge of your case. The insurance adjuster will decide how much money to offer you, whether to settle the case or go to trial, etc.

A compulsory medical examination (CME) is a medical examination of you performed by a doctor of the defendant’s choosing. If you file a personal injury case, the defendant has the right to a compulsory medical examination.

Defendants and insurance companies request compulsory medical examinations because they want those CME doctors to come into court and testify on their behalves. Many times, CME doctors will come into court and testify that you aren’t injured, that your injuries have recovered and aren’t that bad, or that your injuries were pre-existing to the date of the accident upon which you are suing.

The compulsory medical examination must typically occur in the county where you reside or in a location “reasonably close” to your residence. Additionally, the defendant can typically only do one compulsory medical examination per specialty. In other words, the defendant couldn’t hire two orthopedic doctors to examine you, but it could hire one orthopedic doctor and one neurologist.

The use of compulsory medical examinations is governed by Florida Rule of Civil Procedure 1.360.

There is no set answer for this either. Your case could settle in a week or it could go on for many years. Again, it all depends on the type and specifics of the case.

In order to put a deadline on the case and try to make it go quicker, your attorney will most likely file what’s called a “notice for trial” and request a trial date in your case. This creates a deadline so that the defense must either settle with you or go to trial. You can request a trial date 20 days after the defendant/defense has responded to your Complaint/lawsuit.

A motion for summary judgment is a motion wherein the defense asks your Judge to “throw out of court” your case or grant you a judgment of no compensation/to give you no recovery. Essentially, the defendant who files a motion for summary judgment argues to the judge that there is no dispute of material fact in your case (nobody disagrees on the facts) and that, based on these facts, the case should be thrown out.

This is a choice to be made by you in consultation with your attorney. There are advantages and disadvantages to both options. The positive thing about settling is security. Settling your case is low-risk – you know what you’re getting. Going to trial, on the other hand, presents some risk – you could win or lose.

The main disadvantage of settling is that, typically, you must compromise in order to settle. Although this isn’t always the case, you must typically accept less money than you want in order to settle your case.

The main advantage of going to trial is that you can ask the jury for whatever amount of money you want – there is no compromising. The main disadvantage is that, unlike settling, trial carries with it inherent risk.

There is no easy answer to this. This is so because trial is unpredictable. Anybody who guarantees you certain results is making things up.

Trial is unpredictable because you don’t know who will wind up on your jury. Six people picked for jury duty because they have driver’s licenses will end up on the jury and decide your case. You could wind up with six people who can relate to you and so will be good for your case, or you could wind up with six people who are against lawsuits generally and will be bad for you. It is for this reason that trial is unpredictable.

A continuance is an extension of the trial in your case. The defense attorney in your case may request a continuance, but your Judge doesn’t have to grant it. The use and granting of continuances is governed by Florida Rule of Civil Procedure 1.460.

Evidence is made up of materials that tend to either prove or disprove your case. Evidence can be made up of documents, pictures or hard objects (vehicles, products, etc.). You can attempt to use whatever evidence you want, but the Judge in your case may limit or prevent the use of your evidence based on the Florida Evidence Code.

A proposal for settlement (PFS) or offer of judgment (OJ) is an official offer to settle made by one party to a lawsuit to another party. If the offer is rejected and the party that rejected the offer loses at trial or gets less than 75% of the offer, then that party will be forced to pay the attorney’s fees of the other side. For example, if the defendant in your personal injury case offers you $100,000 to settle and you reject the offer and instead choose to go to trial, you will need to obtain at least $75,000 by the jury in order to be safe and not have to pay the other side’s attorney’s fees. This rule is given in Florida State Statute 768.79.

On the other hand, you can also send a proposal for settlement/offer of judgment to the defendant. If the defendant rejects that proposal for settlement/offer of judgment and instead chooses to go to trial, the defendant will have to pay your attorney’s fees if you obtain more than 125% of the offer. For example, if you make an offer to the defendant in your case to settle for $100,000 and the defendant rejects that offer and instead chooses to go to trial, then the defendant will have to pay your attorney’s fees if you obtain a judgment of over $125,000 from the jury.

A proposal for settlement/offer of judgment can be made to the defendant in your case 90 days after the defendant is served. Additionally, a proposal for settlement/offer of judgment cannot be made within 40 days of your trial date.

Finally, there is an option to purchase insurance for a proposal for settlement/offer of judgment. If you purchase this insurance and lose at trial, the insurance company will pay the other side’s attorney’s fees (rather than you). Options for this insurance website.

Case costs are expenses incurred by your attorney or law firm in prosecuting the case. For example, it costs money for your lawyer to file your lawsuit.

These expenses are typically advanced up front by the attorney or law firm. In other words, your attorney or law firm will typically spend the money up front to carry on the case (rather than you). However, once the case is finished, your attorney or law firm will get reimbursed for those earlier expenditures made to prosecute the case. In other words, the case costs will come out of the total settlement.

Yes, by law, lawyers and law firms are allowed to charge interest on the case costs advanced.

Yes, after trial the losing party is required to pay the case costs of the prevailing/winning party. The Florida Rules of Civil Procedure include a “Guideline for the Uniform Taxation of Costs” that dictates which costs will have to be paid by the defense/other side.

Again, there is no set answer to this. Many different factors go into this calculation. You are entitled to compensation for your medical bills, lost wages/time missed from work, and your pain and suffering. You should discuss this with your attorney, talk about the numbers and decide how much you need in order to settle your case.

Although your medical bills and lost wages/time missed from work may be relatively easy to calculate, your pain & suffering is more difficult. Some attorneys use formulas to calculate pain and suffering (e.g., three times medical bills), but this is inaccurate and unhelpful. The required compensation for your pain and suffering is very case specific, depends on many factors, and must be decided upon by you in consultation with your lawyer.

Typically, the money from your personal injury settlement will go to three places: 1) to pay off your medical bills and liens, 2) to pay your attorney’s fees, 3) to you. Once it has been sorted out how much will go to each of the three categories, you will need to sign a document called a “closing statement” before your attorney can disburse any of the money.

No. Once you settle your personal injury case, it is forever closed. As such, you need to fully think it through before settling your case.

If the terms of your settlement are confidential, this means that none of the parties to the settlement can discuss the settlement with any other people. For example, if your settlement is confidential, then you can’t disclose the amount of the settlement to anybody else. If you do, the settlement may be reversed and the case reopened.

A “release” is the document that ends your case. In it will be included all of the terms of the settlement, including the amount that you are settling for.

There may be a confidentiality provision in your release requiring that the terms and amount of the settlement remain confidential.

Yes, the person who caused your accident is responsible if a doctor or hospital later commits medical malpractice and worsens your injuries. It is said that the underlying case (the case against the person who caused your initial accident) “subsumes” the medical malpractice case. The case that lays out this law is Stuart v. Hertz, 381 So.2d 1161 (1980).

This depends on many factors. After your personal injury case settles, your attorney will begin the task of paying your medical bills and liens out of your settlement. He or she may attempt to negotiate those bills. Once those bills/liens have been paid, then your attorney will be able to disburse funds/money to you. How long that takes will depend on how long it takes to pay/negotiate your medical bills/liens.

Yes, if you lose your personal injury case, you will still owe your medical bills. This is all the more reason to carefully consider your options before going to trial in your case.

Yes, while your personal injury case is pending/ongoing, your medical bills can still go into or be sent to collections and go on your credit report. Your attorney can request that your medical providers wait for the case to settle and don’t put/send your medical bills into collections, but there is really nothing your attorney can do to prevent this from happening. The only way to be absolutely sure that your bills won’t get sent to collections and go on your credit report while your case is pending/ongoing is to get on a payment plan with your medical providers.

A contingency attorney/lawyer is one who agrees not to get paid until the case is over. Instead, the attorney/lawyer/law firm agrees to get paid out of the proceeds of the case. Typically, the attorney/lawyer/law firm will get paid a percentage of the total recovery on the case.

In this arrangement, it is said that the attorney/lawyer/law firm’s payment is contingent upon the outcome of the case. If the case doesn’t work out and you don’t receive any compensation for your injuries or harm, then your attorney/lawyer/law firm won’t get paid anything. It is for this reason that there is absolutely no risk to you whatsoever.

No, most personal injury attorneys work on a contingency basis, which means that the lawyer or law firm won’t get paid anything unless and until you’ve received compensation in your case. If you receive no compensation, there will be no charge.

Moreover, most personal injury attorneys will not charge you for a consultation regarding your case.

A letter of protection (LOP) is a document similar to a “promise to pay” wherein you and your attorney promise to pay doctor or hospital bills out of the proceeds of your settlement. In return, your doctors agree to withhold demanding payment for your medical treatment and instead agree to get paid at the end/resolution of your case.

One important thing to know about letters of protection is that, even if you lose your case, you will still have to pay your medical bills.

If your case goes to trial, typically it will be a jury that decides your case (although this can be waived and can be different in certain types of civil cases). A judge will preside over your case and make decisions regarding which evidence the jury will actually hear and see, and the jury will make the decision about who wins/loses and how much money is rewarded.

There will be six people on your jury, usually with one or two alternates (the alternates exist/are chosen in case one of the first six jurors gets sick or can’t complete their jury duty). The jurors will be people who got called for “jury duty” because they had driver’s licenses. It is this arbitrary selection process that makes a jury trial so unpredictable.

The jury’s decision will have to be unanimous. If the jurors can’t deliberate and all agree on a verdict, the trial will result in a “hung jury” and the case will have to go to trial again.

Yes, if your case goes to trial, you will have a chance to testify. You will be able to talk about your accident, injuries and current condition.

The “preponderance of the evidence” is a standard or burden the law uses to decide cases. A standard or burden is the level of evidence required to win your case. The preponderance of the evidence is the standard or burden used in civil/personal injury cases. It is the standard or burden used by the jury to decide cases.

In weighing the preponderance of the evidence, the jury must weigh the “greater weight of the evidence.” Specifically, the jury must determine if it is “more likely than not” that the plaintiff (or person bringing the lawsuit) is correct, as opposed to the defendant being correct. If the jury feels that it is more likely than not that the plaintiff is right, then it should find for the plaintiff. On the other hand, if the jury finds that it is more likely than not that the defendant is correct, then it should find for the defendant.

Comparative negligence/fault refers to your own fault. In the context of a personal injury case, comparative negligence refers to your own liability or responsibility for causing the accident or your own injuries. For example, while the defendant may have been mostly at fault for causing an accident (e.g., by running through a red light or stop sign, etc.), you may have also shared some fault (e.g., by not noticing the defendant and avoiding the accident). If that is the case, then you will be said to have been comparatively negligent.

In the context of your trial, the jury will be asked to decide what percentage of fault each party bares. The jury will first have to decide whether the defendant was at fault for the accident and for causing your injuries. The jury will next have to decide if you were also at fault. If the jury finds that both parties were at fault, then the next question will be what percentage of fault each party bares. The jury could divide up those percentages of fault however it wants. For example, the jury could say that the defendant was 90 percent at fault and you 10 percent, or the jury could decide that each party was 50% at fault, etc.

Further, whatever amount of compensation the jury awards you for your injuries will be reduced by your percentage of fault. For example, if the jury awards you $100,000 in compensation for your injuries but finds that you were 10 percent liable/responsible for your own injuries, then your recovery will be reduced by 10 percent (or $10,000) and you will receive only $90,000 (instead of the full $100,000). If the jury finds that you were 50% at fault, on the other hand, then you will recover only $50,000.

Comparative negligence/fault is different than contributory negligence/fault (which is used in many other states) in that, with contributory negligence, you don’t receive anything at all (rather than just having your recovery reduced by a percentage) if you are found to be negligent yourself at all (even 1%).

Yes, you may be able to get compensated/receive compensation for your injuries even if you were drinking, drunk, doing drugs or narcotics, high or intoxicated at the time of your accident – as long as somebody else’s negligence caused your accident and injuries. However, your drinking or intoxication may go to your level of comparative negligence. That is, if the jury finds that you were drinking, drunk, doing drugs or narcotics, high or intoxicated at the time of your accident, then it may give you some percentage of comparative negligence/fault – and this may reduce your total recovery (as described/explained above).

Further, there is a law in the state of Florida that, if you were intoxicated at the time of your accident and the jury finds you more than 50 percent liable/at fault for the accident, then you will recover nothing in your case. This law can be found in Florida Statute 768.36.

If your case is consolidated, it means that the cases of multiple plaintiffs are combined into one case. If you were involved in an accident in which multiple different people were injured, then they may all have individual cases. When lawsuits in those cases are filed initially, they will all be individual cases. However, a party to any of those cases can move to consolidate or combine all of the individual cases into one.

If your case is severed, it means that that the cases of multiple plaintiffs have been split up or divided. As described above, if you are involved in an accident with multiple injured people, the cases of the multiple injured people will oftentimes get combined into one case. A party may later move to divide up or “severe” the cases so that they are tried individually.

If the trial of your case is bifurcated, it means that the liability portion of your case will be tried separately from the damages portion of the case. Liability refers to fault – specifically, who was at fault for the accident/your injuries. In the liability phase of the trial, the jury will decide who was at fault.

The term “damages” refers to the negative consequences of the accident on you. For example, in a personal injury case, your damages will be your injuries. In the damages phase of your trial, the jury will decide how much to compensate you for your injuries.

So, if your case has been bifurcated for trial, there will actually be two separate trials. In the first trial, the jury will determine who was at fault for the accident. If the jury finds that the defendant was at fault, then there will be then be a second trial to determine how much money you will be awarded for your damages/injuries.

A mistrial is the result if the trial of your case does not result in a verdict. A verdict is the jury’s decision in your case – either for you or for the defendant. Sometimes, the trial in your case may not result in a verdict. For example, the Judge in your case may declare a mistrial because one of the attorneys in the case did something improper.

A “hung jury” is also a type of mistrial. The jury in your case must make a unanimous decision (i.e., all six jurors must agree). If the jurors cannot make a unanimous decision, then the case will result in a hung jury, which is a type of mistrial. Your case will need to get retried/tried again.

A final judgment is the amount the defendant owes you after you win your trial. At the end of the trial, the jury will render its verdict or decision. Sometimes certain adjustments may need to be made to the verdict by the Judge in your case. For example, in a car accident case, if you’ve received PIP (“Personal Injury Protection”) payments, then the verdict will be reduced by that amount. The resultant number will be the final judgment. The final judgment is the number that the defendant/other side will owe you.

Yes, if you aggravated/exacerbated a pre-existing condition or injury in your accident, you can recover compensation for that aggravation/exacerbation. In fact, there is a law that says as much. The theory is called the “eggshell skull rule.” The theory says that you “take your victim as they are.” In other words, if you are negligent and aggravate or exacerbate the preexisting condition or injury of another person (e.g., in the example of the theory, an “eggshell” or weak skull), then you are responsible for that aggravation or exacerbation. You don’t simply escape liability simply because the other person has a pre-existing condition or injury. You take your victim as they are, and you are responsible for the aggravation or exacerbation you cause of any pre-existing conditions or injuries. So, if you have had a pre-existing condition or injury aggravated/exacerbated in an accident, you are entitled to compensation for that aggravation/exacerbation.

A mediation is a meeting that takes place between you, your attorney and the defendant/s, the defendant’s attorney, and a representative from the defendant’s insurance company (if there is an insurance company involved). A mediator (who is a neutral, independent party) presides over the mediation and attempts to assist the various parties to compromise and settle their case. The mediator may advise/recommend that the parties settle their case or go to trial.

Mediation procedures are governed by Florida Rules of Civil Procedure 1.700, 1.710, 1.720, and 1.730 - which can be found here:

Arbitration is like mediation, only the arbitrator in an arbitration can actually make decisions (rather than just make recommendations and giving advice). In an arbitration, sometimes there will only be one arbitrator, and sometimes there will be three.

Arbitration can be either binding or non-binding. In a binding arbitration, the decision of the arbitrator/s is final – whereas, in a non-binding arbitration, the parties don’t necessarily have to accept the decision of the arbitrator (they have the option of doing so).

Arbitration can also be voluntary or involuntary. For example, if your case is based on a contract, there might be a mandatory arbitration provision in your contract. If you were injured on a ride or other place you had to purchase an admissions ticket for, you should check your ticket to see if it includes an arbitration provision. If it does, then you case may have to wind up going to arbitration.

Yes, by law all cases must go to mediation. So, before your case can go to trial, it must first go to mediation. If your case settles at mediation, you will sign the settlement documents (called a mediation agreement) and your case will be finished. If the case doesn’t settle, then you will proceed to trial (although the case could still settle “on the courthouse steps” or at any point before trial).

Yes, it is important to know that all of the negotiations and conversations at mediation are confidential. That is, if you or the defendant make an offer to settle to the other side at mediation, then that offer cannot be brought up later in the case or at trial.

Yes, if your personal injury case goes to trial and you lose, then your attorney can file a motion for a new trial. However, the motion must typically be filed within 10 days. That rule (along with the rest of the Florida Rules of Civil Procedure) can be found in the Florida Bar website.

The answer is that yes, you can appeal your case if you lose your jury trial. In the State of Florida, your appeal will be heard by one of the State’s District Courts of Appeal (DCA). The DCA will decide whether the trial judge in your case (the judge that presided over your jury trial) committed any errors in deciding the law in your case. If the DCA finds that the trial judge did commit an error, then the case will be sent back to the trial court for another trial. If the DCA decides that no error was committed by the trial judge, then you will lose your appeal and the case will be over. 4th DCA website.

If the DCA makes a decision that is appealed again, the case will go to the Florida Supreme Court.

Yes, unfortunately the defense/defendant in your case has the same right to appeal as you do. As such, if your personal injury case goes to trial and you win, the defense/other side can appeal the decision to the District Court of Appeal.

Yes, if you are going to appeal the result of your trial, you will need to hire an appellate attorney to handle the appeal. Trial attorneys typically do not handle appeals – they handle trials. Once the trial is finished, an appellate attorney will typically be needed to handle the appeal.

Yes, appellate attorneys typically carry an additional charge up and above the charge of the trial attorney. Many appellate attorneys work on contingency (like trial attorneys) and only charge if they assist to make a recovery. Oftentimes, that charge will be 5 percent of the amount recovered.

Yes, if you win your appeal, the defendant/defense will be responsible/liable for any interest accrued while the appeal was pending/ongoing.

If you have any further questions, call Mr. Quackenbush at 954-448-7288 for a free, no obligation consultation. He will answer whatever other questions you have at no charge to you.

Should you decide to hire Mr. Quackenbush to represent you in your case, he will work on a contingency fee basis. This means that there will be no charge to you up front. In fact, Mr. Quackenbush will not get paid until you’ve made a recovery in your case – so there is no risk to you whatsoever.