Category: Florida BAR article
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Federal Judgments in Florida Still Good After Five Years
I had lunch with a friend who is a trial lawyer at a small restaurant near a federal courthouse in Jacksonville. He told me that federal judgments in Florida are only valid for five years now. My friend told me about a court case called Balfour Beatty Bahamas, Ltd. v. Bush, where a company was…
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Florida Tort Reform 1999
In early June, Governor Jeb Bush passed a new law in Florida that changes how lawsuits for certain things (like products that hurt people) work. Some key changes include a limit on how long you can sue for a defective product, and new defenses for companies to use in court. These changes are meant to…
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Waiting to Get Paid: Are Pay When Paid Provisions a Matter of When or If?
In construction contracts, subcontractors may have to wait to get paid if the owner doesn’t pay the general contractor. This is called a “pay-when-paid” clause. It can be tricky because it might mean the subcontractor only gets paid after the owner pays the general contractor, or it might just set a reasonable timeframe for payment.…
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You Should Have Called Me Sooner
It’s important to involve an appellate specialist in the early stages of a legal case, even before it goes to trial. They can help with developing legal theories, drafting pleadings, and working on tough legal issues. This can save time and money in the long run. If a case has a potentially difficult legal problem,…
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The 120-Day Rule: What You Need to Know
Florida Rule of Civil Procedure 1.070 (j) says that a complaint has to be served on the defendant within 120 days after it’s filed. If not, the case can be dismissed, but the complaint can be filed again if the statute of limitations hasn’t run out. If there’s a good reason why the complaint wasn’t…
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Planning Ahead: Some Tips for the Complaint Drafter Dealing with the Economic Loss Rule
This article talks about the economic loss rule, which can affect a case if someone claims they were harmed financially because of a contract. It suggests that both sides need to understand the rule early on and think about it when writing a lawsuit. The rule can cause cases to be lost if the complaint…
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Mediating with Florida’s Local Governments: Tips for the Private Practitioner
This article is for lawyers who want to mediate with local government in Florida. The writer wants to let them know that settlements reached at mediation with the government are not final until the elected board approves them. They give an example of a personal injury case where the lawyer reached a settlement, but then…
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Condemnation Blight Under Florida Law: A Rule of Appropriation or the Scope of the Project Rule in D
Condemnation blight is a concept in eminent domain law that refers to the negative impact on property when the government announces it might take the property for public use. It can cause problems for property owners because it can lower the property’s value. Different states have different rules about how to deal with condemnation blight.…
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Keep it Straight or Pay More Than Your Share: Deciphering Fabre and Set-Offs in Multiple Defendant Cases
When two or more people are responsible for causing harm in a lawsuit, it can be tricky to figure out how much each person should pay. This gets even more complicated if some of the people settle the case before it goes to trial. Some people argue that because of this, a rule called Fabre…
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Pleading Punitive Damages in Federal Court: Must One Comply with F.S. 68.72?
In Florida, there’s a law that says you can’t ask for extra punishment in a lawsuit unless you have good evidence to back it up. But in federal court, it’s unclear if this law applies. Different federal courts in Florida have different opinions about it. So it can be confusing for lawyers who work in…
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Sleeping with the Enemy-Litigation Loan Agreements: Are They Legal?
In a lawsuit involving multiple parties, sometimes one defendant wants to settle the case even if everyone else doesn’t. In these situations, they might use something called a “litigation loan agreement” to reach a settlement. This involves making two payments to the person suing (the plaintiff)âone is a regular settlement payment, and the other is…
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The Overlooked Emergency Room Cause of Action: F.S. 395.1041
Florida passed a law similar to the federal EMTALA in 1988, which requires hospitals to examine and stabilize patients who come to the emergency room. If a patient is not properly examined and stabilized, they may have a private cause of action against the hospital. This law provides a possible remedy for patients who were…
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The Challenge of Peremptory Challenges: A Brief Study in the Evolution of Law
In 13th century England, the King had changed the legal system by introducing trial by jury, which the people were not happy about. One day, the Kingâs Justice comes to a county and a local troublemaker is brought before him. The Justice questions William about a stolen mare, and he denies owning her. The Justice…
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The Intentional Acts Exclusion
In personal injury cases, it’s important to know if the person you’re suing has insurance to cover the costs. If they do, they’ll have a lawyer paid for by the insurance, and you’re more likely to get a big settlement if you win. In cases where someone hurt you on purpose, their insurance might not…
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Distinguishing Quantum Meruit and Unjust Enrichment in the Construction Setting
In construction cases, there is often confusion between the legal theories of âquantum meruitâ and âunjust enrichment.â These are used when someone didn’t fulfill a contract but still wants to be paid. Sometimes both are mistakenly used in a lawsuit, and sometimes the wrong one is chosen. Quantum meruit and unjust enrichment have the same…
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Negligent Infliction of Emotional Distress: Where Are We Now?
In Florida, if you want to sue someone for causing you emotional distress, you need to have also been physically injured by their actions. This is called the “impact rule.” However, there are some exceptions to this rule, such as for defamation, invasion of privacy, and wrongful birth cases. There is also a special rule…
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A Practitioner’s Guide to the Taxation of Costs in Civil Actions
When you win a civil court case, you can ask the losing side to pay for some of your legal costs. This includes things like filing fees, copying documents, and paying your lawyer. There are rules about what costs you can ask for and how to ask for them. It’s important to follow these rules…
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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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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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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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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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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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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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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…