By Spetsas Buist PLLC
We created this Podcast to provide people with access to helpful legal information so that they can make better decisions and protect their rights.
Plaintiff PrepFeb 25, 2022
Plaintiff Prep | Episode 10: Jury Trial
Jury Selection: Jury selection, also known as voir dire, occurs at the very beginning of trial, and the purpose is to determine whether potential juror are prejudiced or biased in a way that would prevent them from being fair or impartial. The attorneys and judge will ask questions and the jurors will respond. Based on the jurors’ responses, they may be challenged for cause. A cause challenge might occur if a juror is related to one of the attorneys or one of the parties to the case, or if the juror indicates that he or she cannot be fair in hearing the case. Each side also gets peremptory challenges, which basically allows each side to remove a limited number of jurors for any reason or for no reason at all.
Opening Statement: Opening statements occur at the beginning of trial. A lawyer from each side will give an opening statement to the jury, explaining what the evidence will show. Your attorney will also tell the jury your story or a narrative of what happened. However, neither side may argue facts or law during the opening statement. They can only talk about what the evidence will show.
Plaintiff’s Case: Now, it’s time for the plaintiff’s attorney (your attorney) to present its case-in-chief. This is the part of the trial where your attorney will present your exhibits and proffer witness testimony. Your attorney will probably start with witnesses that have the best information regarding liability. Your attorney will call each witness to the stand for a direct examination, and then the defense will cross examine the same witness. After that, your attorney may engage in a redirect examination, and the defense may engage in a recross examination, depending on the jurisdiction. After the liability witnesses have been examined, your attorney will likely present damage witnesses. These are people that can testify regarding your injuries and how much you have suffered as a result of those injuries. After your attorney presents its case, your attorney will tell the judge something along the lines of, “the plaintiff rests, Your Honor.” And that will be the end of the plaintiff’s case-in-chief. After that, the defense will present its case in chief.
Closing Arguments: After both sides have presented all their evidence, they will be permitted to make closing arguments to the jury. Each lawyer will have a limited amount of time to talk to the jury about the evidence, to summarize the case, and to draw conclusions and inferences from the evidence. Each lawyer will try to show the jurors how the evidence supports its case. In closing arguments, the plaintiff’s attorney will go first, and then the defense. After the defense gives its closing argument, the plaintiff’s attorney is typically allowed to offer a quick rebuttal argument.
Jury Verdict: After closing arguments, the jury will receive instructions, known as “jury instructions,” and then they will retire to the jury room to deliberate. The deliberation could take hours or days, depending on the case. The jury will elect what is known as a “foreperson,” and the foreperson will be responsible for helping the jurors reach a verdict. If jurors have a question, they will submit the question or questions to the bailiff, and the bailiff will bring the question to the judge to be answered by the judge or the lawyers.
Once the jury reaches a verdict, the elected foreperson will fill out a jury verdict form and sign it. Then, the bailiff will notify the judge that the jury reached a verdict. Next, the lawyers and the parties will return, and the bailiff will bring the jury back into the courtroom. After that, the judge will confirm with the foreperson that the jury reached a verdict. The foreperson will hand the verdict form to the bailiff, and the bailiff will give it to the judge. The judge will then read the verdict out loud and on the record.
Plaintiff Prep | Episode 9: Settling the Case
Welcome to Episode 9 of Plaintiff Prep. In this video, we’re going to be talking about settling a case. More specifically, we’re going to be talking about why you might settle your case and all the different ways you can settle a case. So, let’s get right into it.
Why Settle? Settlement is good for the parties involved because litigation is stressful, time consuming, and expensive. Thus, if the parties can reach a settlement, the people and businesses involved can shed the burden of litigation and get back to normal life.
Settlement isn’t just good for the parties involved. Settlement also increases judicial efficiency and keeps the courts from getting unnecessarily clogged up with litigation. Therefore, settling cases keeps our hardworking court staff, judges, and clerks happy.
Settlement Timing: Let’s talk about the timing of settlement. Most of the time, the settlement will occur before trial because, in most cases, the reason the parties want to settle a case is to avoid litigation. However, in some states, settlement can occur all the way up to trial, and even during trial. No matter what happens, if your case settles, it will settle before the jury renders a verdict.
Demand Letter: One way to settle your case is through a demand letter. A demand letter is a letter your attorney sends to the insurance company. It’s basically a demand for payment before your attorney files the lawsuit. If the insurance company accepts, you don’t have to move forward with a lawsuit. In other words, if the insurance company accepts the demands within the demand letter, the case is settled.
Mediation: Probably the most common way cases are settled is through mediation. A mediation is essentially just a formal negotiation between the parties of the lawsuit. In mediation, a neutral, third-party facilitator, known as the mediator, assists all sides of the lawsuit in reaching a settlement agreement.
Proposal for Settlement: Another way to settle a case is through a Proposal for Settlement, which is also known as an offer of judgment. Proposals for Settlement are complex but valuable tools used in litigation to put pressure on the other side to settle the case. Thus, they can be filed by either party before trial. A valid proposal can allow you to recover fees incurred in prosecuting a claim where otherwise no contractual or statutory fee claim exists. It can also serve as a useful bargaining chip at mediation or in a post-trial setting. Because of the complexity of Proposals for Settlement, we will discuss them in more detail in a later video.
Finalizing Settlement: If you and your attorney settle your case through either negotiation or mediation, the paying party will usually have to get a check to you within 20 days of the settlement. Additionally, the defendant or defendants may demand confidentiality as part of the settlement. What this means is that you must agree to not share information regarding the details and outcome of your case with anyone. In return, you get money in the form of a settlement check. Finally, once your case is settled, your lawsuit will be dismissed after your attorney files a Notice of Voluntary Dismissal with the court.
Thank you so much for joining us for Episode 9 of Plaintiff Prep. Join us next time for the 10th and final episode of Season 1, where we’re going to be talking about jury trials.
Plaintiff Prep | Episode 8: Mediation
Benefits of Mediation: Mediation can be extremely helpful to all parties for a variety of reasons. For example, mediations can save time, stress and money. Since mediation is basically just a discussion between the parties, it can also be quite easy compared to the formal trial process. Additionally, unlike trials and court hearings, which are held in public courtrooms, mediations are private, and with a few exceptions, confidential. Also, if a settlement is reached, mediations provide finality because the mediation settlement agreement is an enforceable and legally binding contract.
Mediation Process: Generally, mediation begins with an introduction by the mediator, an opening statement from the plaintiff’s attorney, and an opening statement from the defense attorney. After each side presents their opening, the parties will caucus, which is where each party goes into a separate and private room, and the opposing sides will only communicate with each other through the mediator. If the mediation is conducted in-person, the mediator will go back and forth between the plaintiff’s room and the defendant’s room, trying to help the parties reach a settlement.
Mediation Attendees: In personal injury cases, you will attend the mediation with your lawyer. The defendant’s attorney and a representative from its insurance company will also attend, and sometimes the defendant will attend. At mediation, there will always be a mediator. The mediator is a neutral third-party who both sides designated to act as an intermediary and help the parties to reach a settlement. The mediator is not allowed to decide who is right or wrong or to tell you how to resolve your case. The mediator is simply there to help the parties settle.
Opening Statements: Typically, if the mediation is conducted in-person, the parties will be present together in a conference room at the mediator’s office. The mediator will introduce himself or herself to the parties and the attorneys. Then, the plaintiff and defense attorneys will typically give an opening statement. The plaintiff’s attorney will go first, and then the defendant’s attorney.
Caucus: Now, let’s talk about the mediation caucus. A caucus is where the mediator meets privately with the plaintiff’s side and then the defense. During this time, whatever you and your attorney say to the mediator is kept confidential, unless you specifically request that the mediator relay a message to the other party. Usually, during the caucus, the mediator will meet with the plaintiff’s side first. The mediator will ask for the plaintiff’s opening demand for settlement. Then, the mediator will bring the plaintiff’s settlement demand to the defense. Usually, the defense will then make a counter-offer, and the mediator bring that counter-offer back to the plaintiff’s room. This process will continue until the parties reach an agreement or impasse.
Reaching an Agreement at Mediation: Typically, during caucus, the plaintiff will begin with its highest settlement demand, and the defendant will begin with its lowest offer. Then, the parties will gradually work toward the middle as mediation progresses. While the mediator cannot tell a plaintiff what to do, they can give guidance to help facilitate a settlement. If the parties reach an agreement, the parties and their lawyers will be required to sign a mediation agreement.
Impasse: If the parties are unable to reach an agreement at mediation, the mediator will either declare an impasse or postpone the mediation to another day. An impasse occurs when the parties cannot reach an agreement and do not want to continue discussing potential resolution of the case. If the mediator declares an impasse, then the case will proceed to trial.
Plaintiff Prep | Episode 7: Discovery
What is discovery? Discovery is the formal investigation process of the lawsuit. Discovery occurs between the time your lawyer files the lawsuit and trial, and both sides have the opportunity to request whatever evidence the other side has. This evidence might include things like videos, pictures, documents, insurance policies, and really anything that could be used as evidence. There are 5 ways each side can obtain evidence from the opposing party: (1) Interrogatories; (2) Requests for Admissions or “RFAs”; (3) Requests for Production or “RFPs”; (4) Depositions; and (5) the Defense’s medical examination of the Plaintiff.
Interrogatories: What is an Interrogatory? Each state’s rules of civil procedure allow the parties to send interrogatories, which are written questions directed to the opposing party that must be answered under oath. The interrogatory will be used to identify the witnesses and insurance policies, as well as pictures, photographs, and other types of evidence. Interrogatories may only be sent to the parties to the lawsuit. They can’t be sent to witnesses or other third parties.
Request for Production: Whereas interrogatories are used to identify evidence. A request for production is used to get the opposing side to turn over evidence in its possession for the purpose of copying and examination. In some states, an RFP can be used to gain access to evidence that is in the possession of entities or people that are not parties to the lawsuit.
Request for Admissions: A request for admission is exactly what it sounds like: It’s a written request for the other side to admit a fact or a matter of law. Once admitted, neither party needs to prove the admitted matter of fact or law. Thus, RFAs save attorneys and courts a lot of time and money because they allow the parties to focus their efforts on the most critical issues in the case.
Depositions: A deposition is where attorneys call upon the parties to the case and anyone with knowledge relevant to the case to appear before a court reporter and answer questions under oath. The lawyer asks questions relevant to the case, and the deposed party answers those questions. Attorneys may ask questions in depositions that they could not ask in the presence of a jury at trial. Your lawyer may object to a question and then advise you as to whether or not you should answer.
During the deposition, a court reporter creates a transcript of the testimony. When the deposition is over, the deposed person is given an opportunity to review and sign the transcript, which can later be used at trial. Sometimes, depending on the case, a party may conduct a videotaped deposition of a party or a witness. This videotaped deposition, or portions of it, may also be used at trial.
Medical Examination: When a plaintiff makes a claim for a physical or psychological injury, there are two different situations under which the plaintiff may be required to undergo a medical examination to verify those injuries. First, an insurance company may require the Plaintiff to undergo an examination before paying the Plaintiff’s medical bills. Second, the defendant’s attorney may request that the plaintiff be examined by a doctor during the discovery phase of litigation. In this situation, your attorney will work with the defense to pick a time and place for you to be examined by a doctor the defense chooses.
Pay attention to everything that is said and done during the medical exam. Then, relay as much as you can remember to your attorney after the exam. For example, if the doctor expressed disdain for personal injury plaintiffs, you could potentially testify to this fact at trial, which could help your case.
Plaintiff Prep | Episode 6: Filing the Lawsuit
Statute of Limitations: The statute of limitations provides the amount of time a plaintiff has to file his or her lawsuit after being injured. Each state has its own statute of limitations, and if the Plaintiff does not file within the statute of limitations, the claim is forever barred.
There are certain situations where the statute of limitations can be put on pause. In legal language, pausing the statute of limitations is known as “tolling” the statute. For example, in many states, if you lose mental capacity, the statute of limitations may pause until you regain capacity. Similarly, in many states, the statute of limitations for dental malpractice and medical practice cases does not start until the plaintiff discovers his or her injury. In other words, the statute is tolled until you find out you’ve been injured by the medical professional.
Filing the Lawsuit: So, what is a personal injury lawsuit, exactly? A personal injury lawsuit is an official court filing that names the alleged wrongdoer, known as the defendant, and lists your theory of what the defendant did to cause your injuries. The specific court your attorney files the lawsuit in is determined by the amount of money you claim you’re entitled to, as well as other factors, like where your injury occurred. When your attorney files the lawsuit, he or she will file a package of documents, which will likely include a civil cover sheet, a summons, a complaint, and often initial written discovery directed to the defendant or defendants.
The Complaint: The complaint is the document that starts every lawsuit. When the complaint is filed, it becomes public record and usually contains the following 5 components: (1) the court where you’re filing, (2) the names of the plaintiff and defendants, (3) a statement of the defendant’s alleged wrongful conduct, (4) a description of your injuries, and (5) the relief you are seeking.
Malpractice Cases: The process of filing a lawsuit can be a bit different in dental malpractice and medical malpractice cases than in other types of personal injury matters. For example, in Florida, the plaintiff must conduct a pre-suit investigation and file a notice of intent to initiate litigation before filing the actual lawsuit. The pre-suit investigation typically involves an expert’s review of your medical records, and the Notice of Intent typically includes an affidavit from that expert. Generally speaking, the expert affidavit is the expert’s written opinion of how the defendant medical provider committed malpractice.
Defendant’s Response: Once the complaint is filed and the named defendants have been served with a copy of the complaint, the defendant has a certain amount of time to respond to your complaint with either a motion to dismiss or with an answer. The allowable time for a defendant to respond is determined by state law. For example, in Florida, a defendant has 20 days to respond, which starts on the date when the defendant is served.
If the defendant responds with a motion to dismiss, your attorney can attempt to cure any defects in the complaint and file an amended complaint, or your attorney can file a response in opposition to the motion to dismiss. If your attorney files a response in opposition, the court will set a hearing, and the parties will argue the motion before the judge.
Now, If the defendant responds with an answer to the complaint, it’s required to admit or deny each specific allegation in the complaint. The defendant must also list any defenses to each allegation. Keep in mind that this is a very general discussion of these legal concepts, and we will go into more detail in future videos.
Plaintiff Prep | Episode 5: The Demand Letter
Hello and Welcome to Episode 5 of Plaintiff Prep. At this point, you signed on with an attorney and your attorney has engaged in pre-suit investigation.
The next step is for your attorney to draft a demand package to the insurance company of the liable parties. The Point of this video is to help you understand what a demand package is and the various components of a demand letter.
The Demand Letter:
A demand letter is a letter your attorney will send to the insurance company, which is basically a demand for payment before your attorney files the lawsuit. The reason a demand letter can be crucial to your claim is because, if the insurance company accepts, you don’t have to move forward with a lawsuit.
Now, let’s talk about the demand letter itself. A demand letter typically contains the following four elements: (1) the known facts of the case; (2) your liability argument; (3) a presentation of your damages; and (4) a settlement demand with a time limit.
As we talked about before, the demand letter will discuss the facts known at the time, before the parties engage in discovery. Typically, the demand letter opens with a broad statement of how, when, and where your accident occurred. It also notifies the insurance company that there are records included in the demand package which help substantiate your claim.
Let’s talk about liability. The liability section of a demand letter typically begins with a more in-depth discussion of what occurred on the date of the accident. Additionally, this Section may include citations to case law and Florida statutes that you and your attorney believe the defendants violated. Simply put, this is where your attorney will establish that the defendant owed you a duty and that the defendant breached that duty.
Now, let’s move on to damages. As we briefly discussed in Episode 2 on Consultations, damages is about quantifying how much money you deserve for the harm the defendant caused you. In the demand letter, your attorney will likely draft a narrative, which may highlight different categories of damages. These categories may include past medical expenses, future medical expenses, past lost wages, loss of future earning capacity, as well as past and future pain and suffering. We will dive more deeply into each of these categories in future videos.
Finally, let’s talk about the time limit demand. In the demand letter, your attorney may include a settlement demand with a cutoff date. If the insurance company accepts the settlement amount and sends your attorney a check before this date, the case is pretty much settled, and your attorney will not need to file a lawsuit. If the insurance company rejects the demand or does not send a check before that date, your attorney will likely proceed with filing the lawsuit.
It’s important to note that most insurance companies will require you to sign a release before you get the check. This release stops you from pursuing the same claim against that insurance company and defendant in the future. In return for releasing those future claims against the liable parties, you get paid. We’ll talk more about releases in future videos.
Thank you so much for joining us for another episode of Plaintiff Prep. Tune in for the next episode, where we’re going to be talking about filing the lawsuit.
Plaintiff Prep | Episode 4: Pre-Suit Investigation
Welcome to Episode 4 of Plaintiff Prep. At this point, you have signed a contingency fee agreement with your attorney, and you’re now working together on your case.
The next step is the pre-suit investigation. The Point of this video is to help you understand what happens during the pre-suit investigation and help you understand what your attorney is doing behind the scenes.
The Pre-Suit Investigation: As the name suggests, the pre suit investigation occurs before a lawsuit is filed on your behalf. This process is crucial for many claims because it allows you to obtain necessary evidence. Additionally, the pre-suit process may allow you to settle your case and get your money without having to file a lawsuit and go through the stress of litigation.
Identifying Defendants: One of the first things your attorney will do is try to identify all the people and companies responsible for your injuries. In complex cases, there may be a combination of individuals and companies that are potentially responsible for your injuries. For example, in a slip and fall case, the potential defendants could include the landowner, the tenant, the property manager, and even a third party, like a security company. Your attorney should send each defendant a letter to preserve evidence, often called a “spoliation letter,” as well as a letter seeking each defendant’s insurance information.
Obtaining Records: While identifying potential defendants, your attorney will also have you fill out medical release forms to send to your medical care providers and your health insurance company, if you have health insurance. The goal here is to obtain the necessary documents to prove your past medical damages. In addition to your medical records, your attorney will also seek to obtain any employment records to determine if you have past lost wages, which could be added to your overall damages.
Government Agencies: After a person has been in an accident, governmental agencies often make reports and obtain their own evidence relating to that incident. These agencies may include local and state police, federal agencies, and emergency medical services. Your attorney will likely seek to obtain these records as part of the pre-suit investigation process.
Visiting the Accident Scene: Depending on the type of accident you were involved in, your attorney may also visit the scene of the accident to get a first hand look at where the accident occurred. Your attorney may also want to take pictures and video to document the scene. Additionally, your attorney may look to see if there are nearby businesses that could have camera footage of your accident.
Hiring Experts: Your attorney may need to hire consulting experts and expert witnesses to analyze additional evidence, such as computer data from vehicles and measurements from the scene of the accident. In Florida medical and dental malpractice cases, a plaintiff is actually required to perform a pre-suit investigation. Thus, for those cases, your attorney will hire an expert to investigate your claims and draft an affidavit.
Plaintiff Prep | Episode 3: Contingency Fees
Plaintiff Prep Episode 3 explains what a contingency fee agreement is and how it works, as well as a general overview of how contingency fees are calculated in Florida. Here is what we will cover in this video:
The Contingency Fee: Essentially, a contingency fee means that your lawyer doesn’t get paid unless you get paid. More specifically, your lawyer agrees to represent you for a certain percentage of the total amount of your settlement or jury verdict. This also means that, if there is no recovery or if your attorney loses the case, you probably won’t have to pay your attorney anything.
Calculating Contingency Fees: The allowable percentage a lawyer may take in a contingency fee agreement is typically determined by the laws of the state where you’re bringing your claim. For example, in Florida, contingency fees are limited to between 33.33% and 40% in personal injury cases, depending on what stage of litigation you’re in.
Contingency Fees in Med Mal Cases: Contingency fees can be a bit different in medical and dental malpractice cases than in other types of cases. For example, as of 2022, Florida limits the percentage in med mal cases to 30% of the first $250,000 recovered and 10% of anything over that. However, Florida allows the client to waive this right in writing.
Your Part of the Recovery: It’s important to note that the lawyer’s fee percentage is based on the gross amount recovered, and so it does not include costs of litigation, like filing fees and expert witness fees. These costs are typically deducted from the client’s percentage of the recovery.
Attorney-Client TEAM: Once you sign the contingency fee agreement, you officially have an attorney representing you and the relationship is complete. Now, you and your attorney will be working together as a team to get you the money you deserve.
Plaintiff Prep | Episode 2: Consultation
Plaintiff Prep Episode 2 explains what an injured person can expect during a legal consultation. Here is what we will cover in this video:
Intake: Your attorney may send you an intake form before your initial legal consultation, just to get your contact information and to get a brief description of how you were injured, how badly you were injured, whether you received medical treatment, and other information relevant to your potential claim.
Attorney-Client Privilege: Whatever you say in a legal consultation is protected under attorney-client privilege, so long as you are engaging in the consultation because you want legal advice and / or you are looking for legal representation. There are only a few exceptions to this rule, like if the client is seeking legal advice to commit a crime or to commit fraud.
Information About Your Injuries: The attorney is going to dig deeper into what happened, how you were injured, and how badly you were injured. The purpose of digging into the detail is to determine who is liable and what your damages are.
Determining Who is Liable: Sometimes there is only one person responsible for the victim's injuries. Other times, there are multiple responsible individuals and corporations.
Calculating Damages: Determining damages is about calculating the amount of money it will take to compensate you for your injuries.
Case Evaluation: If the attorney decides you have a viable case, and if you choose to use that attorney, you will be asked to sign what is known as a contingency fee agreement, which we’re going to discuss more in our next episode.
Plaintiff Prep | Episode 1: The Accident
Plaintiff Prep Episode 1 explains what a person should do immediately after an accident to protect his or her rights. Here is what we will cover in this video:
Get to Safety: The first thing you should do after an accident is get to safety and protect yourself.
Take Pictures and Videos: If possible, take pictures of the scene of the accident, as well as any vehicles, bicycles, or other objects involved. Also, take a video of the scene if you can. The best evidence is fresh evidence because time changes things.
Gather Witness Contact Info: If possible, find any witnesses to the accident and ask them for their contact information. Witnesses can disappear if you don't have a way to contact them, and their testimony can be critical to your case.
Don't Talk too Much: Try to say as little as possible. Of course, you should cooperate with the police and with the authorities. However, do not volunteer information, and don't admit fault or say "I'm sorry" or anything like that. Talk as little as possible.
Don't Post on Social Media: You should only talk about your accident with your attorney. Resist the urge to tell the world about your accident. Defense attorneys will check social media, and the things you say or post may be used against you. Also, if you say you're hurt but you post pictures of yourself at a party having fun, how do you think a defense attorney is going to handle that? Stay off social media.
Get Medical Treatment: Accidents increase adrenaline, and adrenaline masks pain. Therefore, you may be injured and not even know it. It's better to be safe than sorry. Go see a doctor if you think there's any chance you're injured.