Category: Florida BAR article
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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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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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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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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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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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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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Fraudulent Construction Liens: Willful Exaggeration or Good Faith Dispute?
If you’re a contractor trying to foreclose on a construction lien, you might face a defense claiming that your lien is fraudulent. This could lead to a lawsuit and damages against you. Even if you know you’re an honest contractor, it’s important to carefully review how you put together your claim to avoid these problems.…
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Liability of the Commercial Driver: Negligent Hiring Meets the Dangerous Instrumentality Doctrine
If you get hurt in a car accident with a commercial vehicle in Florida, the owner of the vehicle might be responsible for your injuries. This is because of a law called the dangerous instrumentality doctrine. It says that if someone owns a dangerous tool, like a car, they can be held responsible if someone…
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Computer Generated Animation: Identifying New and Subtle Prejudicial Special Effects
Computer animation in the courtroom can be unfair because it can make the jury believe a testimony more easily, and ignore other evidence. This can be seen as unfair and could influence the outcome of a trial. In one case, a court allowed a computer animation to be used because it was not too graphic…
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The Impact of Gooding on Actions for Malpractice in the Treatment of Malignant Disease
Mr. Gooding passed away in a hospital after the emergency room staff failed to provide him with proper care. His wife sued the hospital for negligence. The court ruled in favor of the hospital because even with proper treatment, Mr. Gooding’s chances of survival would have been very low. The Supreme Court said that in…
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Pleading Requirements for a Claim for Attorneys’ Fees
The rules for pleading a claim for attorneys’ fees have changed in the past ten years. Plaintiffs don’t have a problem with it, but defendants do. The Florida Supreme Court says that a defendant doesn’t need to file a formal counterclaim to ask for fees. They can do it after the main case is over.…
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The Other Property Problem: Applying the Economic Loss Rule to Construction Contracting Claims
The economic loss rule in Florida says you can’t sue for damages in a contract dispute unless there’s personal injury or damage to other property. That’s easy to understand when it comes to products, but it gets tricky with construction contracts because there’s no clear line between what’s considered “other property” and what’s not. This…
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Preserving Appellate Rights at Trial and in Post-trial Proceedings
As a trial lawyer, it’s important not to unintentionally give up your client’s right to appeal. In Florida courts, even experienced lawyers make mistakes that can waive these rights. For example, during jury selection, if you want to appeal a decision not to dismiss a juror, you have to use up all your challenges, ask…
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Setting a Case for Trial: Rule 1.440 Means What It Says
The rule says that a case can go to trial when both sides have finished exchanging their legal papers. Once that happens, either side can ask for a trial to be scheduled. It’s a simple process with no extra steps. If the plaintiff doesn’t want to file any more papers, they can ask for a…
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Basic Steps for Good Peer Review
The Florida Bar has a certification program for lawyers that’s been around for over 25 years. There are 24 areas of law in which lawyers can get certified, and there are currently over 4,000 certified lawyers. To become certified, lawyers need to have at least 5 years of legal experience, pass an exam, and get…
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Impeachment of a Civil Litigant with Criminal Convictions
About 1 in 10 adult men in Florida have a criminal record. Most lawyers don’t check if people involved in a lawsuit have a criminal past, even though it could affect their credibility in court. Knowing about someone’s criminal history can be useful in both personal injury and business cases. You can use the internet…
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The Parental Immunity Doctrine: Is Insurer Bad Faith an Exception or Should the Doctrine Be Abolished?
A boy and his dad got hurt in a car crash in Florida. The dad’s wife’s car was involved, and the boy’s mom tried to get money from their insurance. The insurance company wouldn’t pay even though the crash was partly the dad’s fault. After a long court case, the insurance company was found to…
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Restrictions on Lawyers Communicating with Witnesses During Testimony: Law, Lore, Opinions, and the Rule
When a witness is testifying in court and talks to the lawyer who called them to the stand before the cross examination is finished, it can cause problems. This can happen during breaks in the trial. The lawyer questioning the witness may get upset and claim something wrong has happened. There are not many clear…
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Legal, Practical, and Ethical Considerations of Medical Malpractice Settlements
A doctor who is being sued for medical malpractice has to decide whether to settle the case or go to trial. This decision has legal, practical, and ethical implications. The defense team, which includes the doctor, the lawyer assigned by the insurance company, and the adjuster, must weigh the risks and benefits of settling the…
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Invoking the Rule During Depositions? Absolutely Maybe
When someone invokes the rule during a trial or deposition, they are asking for the rule of sequestration to be implemented. This means that certain witnesses must stay outside of the room while others are testifying, so that their testimony isn’t influenced by what they hear. However, the rule doesn’t apply to parties involved in…
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10 Tips Leading to Efficient and Effective E-discovery for the Small Law Firm
The new rules allow for the discovery of electronic information in legal cases. If a defendant says that the information is too hard to find or would cost too much to produce, they can ask the court to decide if they have to provide it. The court will look at the facts and decide if…
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The Shield and the Sword: Regarding Disclosure of Private Psychiatric Records as a Routine Element of Discovery in Florida Auto Accident Litigation
If someone is suing for emotional suffering, their mental health records might have to be shown to the other side. In Florida, the law says that if a person claims mental anguish, they have to share their therapy records. But some courts are starting to question this rule. In other states and federal courts, it’s…
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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…
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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…