Author: Elf
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Proposals for Settlement in PIP Cases: Should U.S. Security Ins. Co. v. Cahuasqui be Overturned?
In U.S. Security Ins. Co. v. Cahuasqui, the court ruled that a proposal for settlement can apply to personal injury protection (PIP) cases in Florida. This means that if someone sues their insurance company for denying PIP benefits and loses, they may have to pay the insurance company’s attorneys’ fees and costs. This decision conflicts…
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How to Protect Yourself from Malpractice at Trial While Protecting Your Clients on Appeal
The trial brief is a document that helps lawyers prepare for trial by listing important factors they need to consider. It helps them focus on their case early on and keeps them organized throughout the legal process. Using a trial brief makes lawyers more confident in court and helps them analyze their case and their…
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Challenging the Reliability of Expert Testimony
Since 1993, the U.S. Supreme Court has said that expert testimony in federal court needs to be reliable. But the Supreme Court of Florida has stuck with an older standard that focuses on whether the expert’s opinions are generally accepted. Even though Florida still uses the older standard, reliability is still really important for all…
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Calling the Witness a Liar During Closing Argument: The Florida Supreme Court’s Final Approval
The Florida Supreme Court recently decided whether a lawyer can call a witness a “liar” during closing arguments in a trial. Different courts had different opinions, but the Supreme Court ruled that lawyers can’t give their personal opinion on a witness’s credibility. This means they can’t call a witness a “liar” unless they have evidence…
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The Case Management Conference: Tune-up Needed?
The Case Management Conference (CMC) is a meeting where the court and attorneys schedule trial dates, discuss issues, and try to settle the case. The court can also help move the case along if it’s taking too long. If attorneys don’t cooperate, the court can dismiss the case. The conference can be useful in complex…
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Personal Jurisdiction and the Internet: Applying Old Principles to a New Medium
The internet has led to new legal questions about when someone can be sued in a different state. Courts have said that in order for someone to be sued in another state, they have to have enough contact with that state so that it’s fair to sue them there. The courts have used three categories…
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An Overview of Current Law Impacting Jury Selection in Civil Cases
The process of selecting a jury for a trial can be very stressful for lawyers. They have to ask potential jurors questions and decide if they are a good fit for the case. After that, they have to explain their choices to the judge. There are resources available to help with this process, but this…
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Time Waits for No One: The Death of a Litigant
When someone involved in a lawsuit dies, their lawyer and the other side’s lawyer have to deal with a lot of issues. If they don’t handle the situation quickly, they could end up in trouble. If someone involved in a lawsuit dies, the court needs to be informed, and the party’s representative or the other…
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Proposals for Settlement More Traps for the Unwary
The proposal for settlement (PFS) allows either party in a lawsuit to make a settlement offer before trial. If the offer is rejected and the offering party wins the case, they can get their attorney’s fees paid by the other party. But there have been a lot of confusing rules and cases about how to…
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Diversity Jurisdiction Removal in Florida
When a party files a lawsuit in state court, the other party might consider moving the case to federal court. This decision should be made carefully, as there are many potential issues and laws to consider. The right to move a lawsuit to federal court has been a part of the American judicial system for…
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Strategies for Defeating the Material Misrepresentation Defense in Insurance Actions: A Plaintiff’s Perspective
Insurance companies use the “material misrepresentation defense” to try to deny claims by finding errors or omissions in the insurance application. For example, if a parent says their 15-year-old doesn’t drive, but the insurance application doesn’t list them as a driver, the insurance company might deny any claims related to the child. However, there are…
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Using Medical Literature on Direct Examination to Win the Battle of the Experts
For trial lawyers dealing with medical negligence or personal injury cases, knowing how to effectively cross-examine a hostile medical expert is essential. It is also important to present your own medical expert as credible and authoritative. Using medical literature during the direct examination of a medical expert at trial can be very helpful. In today’s…
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Halfway Houses and Mental Health Treatment Facilities Establishing Duty in Tort
Residential drug and mental health treatment facilities do not always have a legal duty to prevent residents from harming themselves or others. Courts have ruled that just living at the facility is not enough to create a duty of care, and the facility may not be held liable for injuries caused by residents. Each case…
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Motions to Strike Sham Pleadings and Summary Judgment Motions: Is There a Difference?
If a lawyer from another state calls you because their client is being sued in Florida, and they want your help to respond to the lawsuit, they might ask you about Floridaâs “sham pleadings” rule. This rule allows you to challenge the factual support of the other sideâs case by filing a motion to strike…
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Avoiding Pitfalls in Closing Arguments
The closing argument is really important in a trial because it’s the lawyer’s last chance to convince the jury to see things their way. They can summarize the evidence, tie together key themes, and persuade the jury why their side should win. The lawyer can’t say anything that goes against the rules, but they do…
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The Complaint for a Pure Bill of Discovery: A Living, Breathing, Modern Day Dinosaur?
A pure bill of discovery is an old legal remedy that asks the court to make the other party share information or documents. It’s not used much anymore because modern rules of procedure cover most types of discovery. But sometimes it’s still necessary to use a pure bill of discovery to get the information needed…
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More Than You Wanted to Know about the Doctrine of Reformation
Reformation is a legal doctrine that allows a court to fix mistakes in written contracts or agreements if they don’t accurately reflect what the parties intended. It’s a way to make sure everyone is on the same page and that the written document matches what was actually agreed upon. It’s like a safety net for…
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Florida’s New Good Faith Duty on an Insurer Not to Settle
A liability insurance company must carefully handle multiple claims that could exhaust its insuredâs policy limits. It can’t settle too quickly, leaving other legitimate claims with no coverage. In the Farinas case, the insurer settled with some claimants quickly, leaving insufficient coverage for others. The court ruled that the insurer could be liable for settling…
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Dueling Doctors: An Argument for Specialized Medical Testimony
In Florida, the rules for allowing medical experts to testify in court can vary a lot depending on the type of case. Recently, there have been some changes that make it harder for certain types of doctors to testify. But overall, the rules are still pretty flexible and depend a lot on the judge’s decision.…
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Can Two Wrongs Make a Right to Seek Indemnification of Punitive Damages From a Liability Insurance Carrier?
In some situations, an insured person may act in a really reckless or careless way, like driving drunk and causing a car accident. When this happens, their insurance company might not have to pay for any extra punishment costs, because they think it’s not fair for insurance to cover for that. However, if the insurance…
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Confronting Experts Whose Opinions Are Neither Supported nor Directly Contradicted by Scientific Literature
In Florida courtrooms, experts can give their opinions without having to back them up with scientific studies. This means that an expert can claim something like a certain chemical causes cancer, even without any evidence to prove it. This can make it difficult for juries to decide what to believe. For example, if a famous…
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Winning Strategies: The Four Ps of Expert Witness Selection
When new lawyers graduate from law school, they often don’t know much about how important it is to pick the right expert witness for their cases. They usually have to learn how to find and hire expert witnesses from more experienced lawyers. But it’s really important to choose the best expert witness, because they can…
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Mislabeling the Pharmacist Who Does More Than Just Mislabel the Prescription: Pharmaceutical Liability Under Florida Law
Pharmaceutical liability laws in Florida are a mix of different concepts and ideas. Some are effective, but some may need to be changed. Claims against pharmacists have evolved from simple product liability to more complicated medical malpractice claims. This article suggests that the Florida Legislature should give pharmacists the same legal protections as doctors when…
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Striking a Balance to Win: Balancing the Need to Win the Trial with the Need to Preserve the Record on Appeal
All trial lawyers want to win the trial, but sometimes they focus too much on that and forget to make sure the record is preserved for appeal. If the record isn’t preserved, it can hurt the case in the long run, even if you win the trial. So it’s important to make sure everything is…