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Damages In Florida Civil Trial Practice

Damages In Florida Civil Trial Practice

INITIAL CONSIDERATIONS

By: Manuel L. Dobrinsky

As a Plaintiff's attorney, it is very important to have a good understanding of the potential value of any case from the very beginning. This will allow you to evaluate whether it is the type of case that you want to keep, refer to another attorney or simply turn down. It is also very important that you provide the client with an accurate initial assessment of the case whenever possible. If you undervalue the case to the client, it is probable that you will lose the client to another attorney who will "promise" the client a better result. Conversely, if you overvalue the case, you will create unrealistic expectations that will make it difficult, if not impossible to settle the case for a "reasonable" figure during the litigation. Moreover, in analyzing a new case you should assume that the case is going to trial, and thus you must decide whether it is the type of case on which you want to spend your time and money.

In this vein, the first consideration is to evaluate your client. If you do not like your client, chances are that a jury will not like your client. If defense counsel believes that your client will not be liked by a jury, this will greatly lower the settlement value of your case. Conversely, a client who is likeable and sympathetic will greatly enhance the value of your case.

Just as important as screening clients that you want to represent, it is imperative that you are retained by the appropriate party. For example, in a wrongful death case, it is the personal representative who is authorized to bring the lawsuit. See, e.g., Hess v. Hess, 758 So. 2d 1203 (Fla. 4th DCA 2000). If your client is not the personal representative, you may have significant problems down the road. Similarly, in a wrongful death case of a child of divorced parents, it is best to know the relationship between the parent who is trying to hire you and the child. There is much less value to the case of an estranged father who has not provided support for the last five years than the mother who has cared for and supported the child her whole life. If you are able to represent both divorced parents, then you have to be careful about conflicts of interest if there are only limited assets to collect.

Of course, sometimes it is impossible to accurately predict the value of a case when a client first comes to you. For example, some clients that have suffered a recent medical injury often develop complications and deteriorations in their condition, which makes the value of their cases greater while other clients dramatically improve, which drops the value of their case.

Also, to fully understand the value of your damages, you have to assess the strength of the liability portion of the case. If the liability is especially difficult, then a fair settlement will have to discount the damages in proportion to your assessment of the chances of success. As part of the liability, you must also consider what percentage of fault may be attributable to your client. Although you need to do this analysis when you are first consulted by the client, you will need to constantly reassess your evaluations as discovery progresses. It is wise to keep your clients updated on your assessments so that they are not surprised (shocked, horrified) at mediation or even worse, when summary judgment is entered against you.

In making your assessment, you will need to understand what types of damages are available in your case: compensatory (economic and non-economic); nominal and punitive damages. In deciding how to plead your case, you must also assess whether insurance coverage will be available. Since most insurance policies do not cover intentional torts, if there is a theory that sounds in negligence you may opt to plead only that cause of action.

Nominal Damages

Nominal damages can be awarded when a legal wrong has been proven, but the aggrieved party has suffered no damages or where recoverable damages were not proven. See Stevens v. Cricket Club Condominium, Inc., 784 So. 2d 517 (Fla. 3rd DCA 2001). These are not good cases for plaintiff's attorneys or their clients, and is why an early accurate assessment of your case is important.

Compensatory Damages

Generally, there are two types of compensatory damages: economic and non-economic. Economic damages consist of lost wages, medical expenses and a myriad of other financial consequences arising from your client's injuries. Past (up to the time of trial) economic losses are relatively easy to compute. This simply requires a calculation of how much money has been lost (financial) or paid by the client (medical-get totals from actual healthcare providers as opposed to what insurance has paid out). Although it is helpful to have treating doctors testify as to the necessity of past medical care and the reasonableness of the treatment, such testimony is not necessary as long as your client can testify as to the medical bills he has incurred. Dungan v. Ford, 632 So. 2d 159 (Fla. 1st DCA 1994); East West Karate Ass'n, Inc., 638 So. 2d 604 (Fla. 4th DCA 1994). Similarly, a client can testify as to lost wages.

To establish future economic damages, it is very helpful (if not essential) to use experts to establish this area of damages. Medical doctors can testify as to the likelihood of future medical treatment and its costs, rehabilitation experts can develop a life plan that the client will need and an economist can ascribe a present money value to all of these damages. It is also essential to introduce a mortality table to provide a foundation as to your client's life expectancy. Even if your client was not working at the time of the injury, you may still have a claim for lost earning capacity. The purpose of an award of lost future earning capacity is to "compensate a plaintiff for the loss of capacity to earn income, not the actual loss of future earnings." Liberty Mutual Insurance Group, v. Williams, 2000 WL 346160 (Fla. 3rd DCA 2000); W.R. Grace & Company-Conn v. Pyke, 661 So. 2d 1301 (Fla. 3rd DCA 1995)(jury is not to be concerned with actual loss of earnings, but with loss of power to earn); North Broward Hospital District v. Johnson, 538 So. 2d 871 (Fla. 4th DCA 1988)(minor plaintiff presented sufficient evidence for jury determination of lost earning capacity).

Non economic damages are much harder to accurately calculate. These damages are intended to compensate for your client's pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life. Obviously, the bigger the injury, the greater this component of damages will be. One way to get a feel for the potential range of non-economic damages is to gather information from the various publications that publish verdicts and settlements. Maximizing these damages, however, requires creativity, hard work and the proper experts to help in the presentation of your case.

Obviously, a person who has been injured can recover damages for any bodily injury sustained and any resulting pain and suffering, disability or impairment, mental anguish, inconvenience and/or loss of capacity for the enjoyment of life. (See Florida Jury Instruction 6.2).

Wrongful death damages vary according to who are the survivors. For example, when there are no survivors the estate is entitled to recover lost earnings, medical or funeral expenses and lost accumulations. (See Florida Jury Instruction 6.4). Net accumulations means the part of decedent's expected net business or salary income that the decedent probably would have retained as savings if the decedent would have lived his normal life expectancy. See Florida Statutes § 768.18. "With respect to net accumulations, emphasis is placed on a decedent's propensity to earn and his subjective personality traits." Wilcox v. Leverock, 548 So. 2d 1116, 1118 (Fla. 1989); Synergy Gas Corporation v. Johnson, 627 So. 2d 539 (Fla. 3rd DCA 1993)(reversing award of net accumulations when no evidence decedent had any savings before his death).

A surviving child can recover for loss of parental companionship, instruction and guidance, and her pain and suffering as a result of the parent's injury and death. See Florida Jury Instruction, 6.6(g). A surviving parent can recover for mental pain and suffering as a result of the injury and death. See Florida Jury Instruction, 6.6(h). The definitions as to who are proper survivors can be found in Florida Statutes § 768.18. For example, the father of an illegitimate child can maintain a cause of action for wrongful death. Wilcox v. Jones, 346 So. 2d 1037 (Fla. 4th DCA 1977).

Parents can also maintain a case to recover special upbringing costs associated with a deformed child in a "wrongful birth" case. Fassoulas v. Ramey, 450 So. 2d 822 (Fla. 1984). However, the child does not have a cause of action for "wrongful life", i.e. being born deformed and/or disabled. Nor can a parent maintain a cause of action for damages relating to the birth of an unwanted healthy child. Id; Moores v. Lucas, 405 So. 2d 1022 (Fla. 5th DCA 1981).

Punitive Damages

In general, punitive damages in Florida are governed by Florida Statutes §§ 768.72, et. seq. These statutes provide that a defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. Furthermore, the caps on damages are set forth in Florida Statute §768.73:

(1)(a) Except as provided in paragraphs (b) and (c), an award of punitive damages may not exceed the greater of:

1. Three times the amount of compensatory damages awarded to each claimant entitled thereto, consistent with the remaining provisions of this section; or

2. The sum of $500,000.

(b) Where the fact finder determines that the wrongful conduct proven under this section was motivated solely by unreasonable financial gain and determines that the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was actually known by the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant, it may award an amount of punitive damages not to exceed the greater of:

1. Four times the amount of compensatory damages awarded to each claimant entitled thereto, consistent with the remaining provisions of this section; or

2. The sum of $2 million.

(c) Where the fact finder determines that at the time of injury the defendant had a specific intent to harm the claimant and determines that the defendant's conduct did in fact harm the claimant, there shall be no cap on punitive damages.

(d) This subsection is not intended to prohibit an appropriate court from exercising its jurisdiction under s. 768.74 in determining the reasonableness of an award of punitive damages that is less than three times the amount of compensatory damages.

(2)(a) Except as provided in paragraph (b), punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against that defendant in any state or federal court in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages. For purposes of a civil action, the term "the same act or single course of conduct" includes acts resulting in the same manufacturing defects, acts resulting in the same defects in design, or failure to warn of the same hazards, with respect to similar units of a product.

(b) In subsequent civil actions involving the same act or single course of conduct for which punitive damages have already been awarded, if the court determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant's behavior, the court may permit a jury to consider an award of subsequent punitive damages. In permitting a jury to consider awarding subsequent punitive damages, the court shall make specific findings of fact in the record to support its conclusion. In addition, the court may consider whether the defendant's act or course of conduct has ceased. Any subsequent punitive damage awards must be reduced by the amount of any earlier punitive damage awards rendered in state or federal court.

(3) The claimant attorney's fees, if payable from the judgment, are, to the extent that the fees are based on the punitive damages, calculated based on the final judgment for punitive damages. This subsection does not limit the payment of attorney's fees based upon an award of damages other than punitive damages.

(4) The jury may neither be instructed nor informed as to the provisions of this section.

(5) The provisions of this section shall be applied to all causes of action arising after the effective date of this act.

Unless you are suing under a specific statute that provides for punitive damages, punitive damages cannot be pled without leave of court. Section 768.72 was enacted to prevent frivolous or groundless punitive damage claims which force the defendant to devote resources to claims in spite of their intrinsic lack of merit. Kraft General Foods, Inc. v. Rosenblum, 635 So. 2d 106, 108 (Fla. 4th DCA 1994). Accordingly, the statute requires that the claimant make a reasonable showing that the claim is not baseless or frivolous before the pleading will be permitted. Thus, the purpose of the preliminary hearing is to eliminate baseless and frivolous punitive damages claims.

The level of proof required at this preliminary stage of the proceedings has been discussed by several courts in this state. As stated in State of Wis. Inv. Bd. v. Plantation Square Assoc., 761 F.Supp. 1569 (S.D. Fla. 1991):

[T]he standard of proof required merely to assert plaintiff's punitive claim must be lower than that needed to survive a summary adjudication on its merits. As the Florida courts have noted, a Section 768.72 challenge more closely resembles a motion to dismiss that additionally requires an evidentiary proffer and places the burden of persuasion on the plaintiff. In considering a motion to dismiss, factual adjudication is inappropriate as all facts asserted - or here, reasonably established - by the plaintiff are to be taken as true (emphasis added)(citations omitted).

See, also, Dolphin Cove Ass'n. v. Square D Co., 616 So. 2d 553 (Fla. 2d DCA 1993) ("Prejudging the evidence is not a proper vehicle for the court's denial of the motion to amend.").

Although the standard of proof for this preliminary proceeding is lower than that required to survive a motion for summary judgment on the merits of the claim, even if the summary judgment standard is applied, the function of the Court is "to determine whether the appropriate record presented in support of [the motion to amend] conclusively shows that the plaintiff cannot prove the claim alleged as a matter of law." Hervey v. Alfonso, 650 So. 2d 644 (Fla. 2d DCA 1995).

Section 768.72 provides for the amendment of a complaint either through evidence in the record or "proffered by the claimant." The proffer should support a reasonable basis to amend the complaint. If the claimant's proffer provides a reasonable showing, the court should grant the motion.

At common law (before enactment of Section 768.72), a claimant had the right to plead a claim for punitive damages in the original complaint. As a statute in derogation of the common law, Section 768.72 must be strictly construed. In applying such a statute, it is a fundamental rule of statutory construction that the statute will not be interpreted "to make any alteration [in the common law] other than what was specified and plainly pronounced." Slawson v. Fast Food Enterprises, 671 So. 2d 255, 257 (Fla. 4th DCA 1996).

Although Section 768.72 provides only for a "proffer" by the claimant to the Court, parties have occasionally attempted to turn the motion to amend the pleading into a summary adjudication on the merits of the claim by offering "alternative" evidentiary proffers. This is inappropriate. As stated in the Plantation Square case:

In reaching this finding [that plaintiff could amend the complaint to plead a claim for punitive damages], the court has resisted applying the statute as a summary adjudication, which is what the parties have apparently sought to undertake.

The plaintiff's submission of exhibits to substantiate its claim has elicited a barrage of briefs and counter-proffers of evidence by the Defendants seeking to disprove [plaintiff's] claim largely by arguing their own evidence.

. . . .

[As all facts reasonably established by the plaintiff are to be taken as true], the court has given recognition only to those assertions of the defendants which would show plaintiff's factual basis to be patently false or irrelevant, and has paid no heed whatsoever to the defendants alternative evidentiary proffers.

. . . .

Fn.21 Indeed, a 'proffer' according to traditional notions of the term, connotes merely an 'offer' of evidence and neither the term standing alone nor the statute itself calls for an adjudication of the underlying veracity of that which is submitted, much less for countervailing evidentiary submissions (emphasis added).

761 F.Supp. at 1580-81. See also, Strasser v. Yalamanchi, 677 So. 2d 22 (Fla. 4th DCA 1996) ("Contrary to petitioner's (defendants) contention, an evidentiary hearing is not mandated by the statute before a trial court has authority to permit an amendment. Pursuant to section 768.72, a proffer of evidence can support a trial court's determination."); Solis v. Calvo, 689 So. 2d 366 (Fla. 3d DCA 1997) ("Pursuant to Florida Statute 768.72 (1995), a punitive damage claim can be supported by a proffer of evidence. A formal evidentiary hearing is not mandated by the statute.").

An objection to a motion to amend a complaint to add a claim for punitive damages is, essentially, a motion to dismiss or strike the punitive damages claim for failing to state a cause of action. See, Will v. Systems Engineering Consultants, 554 So. 2d 591 (Fla. 3d DCA 1989) ("preferable to entertain the punitive damage issue by way of a motion to dismiss, or motion to strike....."). As with all such motions, a factual adjudication is inappropriate.

In cases that involve intentional torts, leave to add a claim against the tortfeasor should be liberally granted. Florida courts have consistently held that proof of malice necessary for a cause of action for an intentional tort is also sufficient evidence of malice on the part of the Defendant to permit the jury to award punitive damages. See e.g. Ciamar Marcy, Inc. v. Monteiro Da Costa, 508 So. 2d 1282 (Fla. 3rd DCA 1987). Similarly if the tortfeasor is the president or manager of a company, then his actions can be sufficient to hold the company liable for punitive damages. It is well-established Florida law that there is direct liability to a corporation for punitive damages based upon the actions of its managing officer. See Schropp v. Crown Eurocars, Inc., 654 So. 2d 1158 (Fla. 1995); Winn-Dixie Stores, Inc. v. Robinson, 472 So. 2d 722 (Fla. 1985); Bankers Multiple Line Insurance Company v. Farish, 464 So. 2d 530 (Fla. 1985); Morgan International Realty, Inc. v. Dade Underwriters Insurance Agency, 617 So.2d 455, 459 (Fla. 3rd DCA 1993)("Thus by virtue of her position as corporate president and sole stockholder...the acts of Morgan are indistinguishable from the act of the corporation itself..."); Kent Ins. Co. v. Schroeder, 469 So.2d 209, 210 (Fla. 5th DCA 1985)("Thus by virtue of his position as corporate president of Gags and the manager of the bar owned by Gags, the acts of [defendant] are indistinguishable from the acts of the corporation itself. Under these circumstances, the corporation is liable for the punitive damages.")(citations omitted).

The question becomes much more difficult when you are trying to hold a company vicariously liable for the intentional torts of its employees. Whether an employer is vicariously liable for the intentional tort of its employee is a question of fact for the jury. See, e.g., Blount v. Sterling Healthcare Group, 934 F.Supp. 1365 (S.D. Fla. 1996)(Ungaro-Benages)(if tort is motivated in part to serve a master, even if illegal and forbidden by employer, the doctrine of respondeat superior may apply. Whether an employee's acts are within scope of employment is a question of fact for the jury); Brisk v. City of Miami Beach, Florida, 709 F.Supp. 1146 (S.D. Fla. 1989)(whether acts were within scope of employment is a question of fact); M.V. v. Gulf Ridge Council Boy Scouts of America, 529 So.2d 1248 (Fla. 2nd DCA 1988)(jury should decide if employee was acting within course and scope of employment)(case of homosexual assault by first aid counselor); Caprio v. American Airlines, Inc., 848 F.Supp. 1528 (M.D. Fla. 1994)(it is well established that the question of whether employee is acting within scope of his employment is best left to the jury)(Title VII allegations).

Furthermore, an employer can only be held vicariously liable for punitive damages if it is found to be negligent in some manner. See Mercury Motors Express, Inc. v. Smith, 393 So. 2d 545 (Fla. 1981). In many cases, this can be accomplished by pleading and proving negligent supervision, hiring and/or retention.

Statutory Penalties

Sanctions

Florida Statute 57.105 imposes penalties on a party for filing an unfounded pleading. Note that this statute applies to defendants as well as plaintiffs.

Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

(a) Was not supported by the material facts necessary to establish the claim or defense; or

(b) Would not be supported by the application of then-existing law to those material facts.
However, the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney's fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.

(2) Paragraph (1)(b) does not apply if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.

(3) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney's fees, and other loss resulting from the improper delay.

(4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

(5) The provisions of this section are supplemental to other sanctions or remedies available under law or under court rules.

(6) If a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988.

Demand for Judgment

Florida Statute § 768.79 in conjunction with Florida Rule of Civil Procedure 1.442 can be used to effectively pressure an opponent to settle a case. Florida Statute § 768.79 provides that if a plaintiff files a demand for judgment that is not accepted within thirty days and the plaintiff recovers a judgment that is at least twenty five percent greater than the offer, the plaintiff is entitled to recover reasonable attorney's fees and costs from the date of filing the demand.

Florida Rule of Civil Procedure 1.442 provides the mechanism for filing the demand for judgment. It is important to note that the courts will strictly construe the statute and failure to strictly comply will result in the court's striking or not enforcing your demand for judgment. Hilyer Sod, Inc. v. Willis Shaw Express Inc., 817 So. 2d 1050 (Fla. 1st DCA 2002).

For example, in a recent case where we represented two plaintiffs (a husband and a wife) the defendants filed an offer of judgment of $400,000 without allocating an amount to each plaintiff. Rule 1.442(c)(3) requires that "A joint proposal shall state the amount and terms applicable to each party." As such the defendant's offer was void and unenforceable under the plain language of the rule. See Allstate Indemnity Company v. Hingson, 808 So. 2d 197 (Fla. 2002); Thompson v. Hodson, 2002 WL 925014 (Fla. 1st DCA 2002)(any proposal to multiple plaintiffs must specifically apportion settlement offer among plaintiffs); Hilyer Sod, Inc. v. Willis Shaw Express Inc., 817 So. 2d 1050 (Fla. 1st DCA 2002) (generally an offeror must apportion an offer of settlement among offerees, whether the offerees are plaintiffs or defendants).

The converse is also true, and if a valid offer for settlement is served on your client, you must inform them of the risk and the consequences that they will face if the offer is not met. An offer of judgment from the defendant should not, however, induce panic. It is my experience that defendants are usually willing to settle a case well after the thirty days expires, and even if they do not agree and your case falls apart, you can always file a voluntary dismissal without prejudice and avoid the defendant's offer of judgment. Mx Investments, Inc. v. Crawford, 700 So. 2d 640 (Fla. 1997)(768.79 does not provide basis for the award of attorney's fees and costs unless a dismissal is with prejudice); Tucker v. Ohren, 739 So. 2d 684 (Fla. 4th DCA 1999)(voluntary dismissal of case that was barred by statute of limitations was not a dismissal with prejudice). Aero Toy Store, Inc. v. Sherwin-Williams Company, 725 So. 2d 1267 (Fla. 4th DCA 1999):

Set forth below is a brief outline regarding the statute and the rule:

  1. Legal Source for such proposals
    1. Florida Statute 768.79
    2. Florida Rule of Civil Procedure 1.442
  2. When should they be served
    1. No earlier than 90 days from service of process
    2. No later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier. See Florida Rule of Civil Procedure 1.442; Grip Development Inc., v. Coldwell Banker Residential Real Estate, Inc. 2000 WL 669040 (Fla. 4th DCA 2000).
    3. However, if a continuance is granted, an offer of judgment can be served after the granting of the continuance but prior to 45 before the new trial date or new docket date. See Liguori v. David, 756 So. 2d 268 (Fla. 4th DCA 2000); Hathaway v. Hathaway, 2000 WL 1345917 (Fla. 4th DCA 2000).
  3. When is response to a proposal due
    1. 30 days - Florida Statute 768.79
    2. Can request an enlargement of time from the court. See Florida Rule of Civil Procedure 1.090(b); Schmidt v. Fortner, 629 So.2d 1036 (Fla 4th DCA 1993); Progressive Casualty Insurance, Co. v. Radiology and Imaging Center of South Florida, Inc. 761 So.2d 399 (Fla. 3rd DCA 2000).
  4. How much should you demand
    1. Florida Statute 768.79 allows a court to deny fees and costs when an offer was "not made in good faith."
      1. Bridges v. Newton, 556 So.2d 1170 (Fla. 3rd DCA 1990)(where offeror demands judgment in an amount he knows to be inadequate and when accepted by offeree refuses to conclude final settlement, demand is in bad faith).
      2. Obligation of good-faith merely insists that plaintiff has some reasonable foundation on which to base its demand. See Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993).
    2. Demand for insurance limits does not establish that demand was not made in good faith. See Schmidt at 1036.
  5. How do you address multiple parties
    1. Florida Rule of Civil Procedure 1.442(c)(3) provides "a joint proposal shall state the amount and terms attributable to each party." See McFarland & Sons, Inc. v. Basel, 727 So.2d 266 (Fla. 5th DCA 1999)(rule requires that specific amount be set forth as to each defendant); Ford Motor Company v. Meyers, 771 So. 2d 1202 (Fla. 4th DCA 2000).
    2. Exception to rule applies when defendants are not joint tortfeasors, i.e. when one defendant is vicariously liable for the other. See Safelite Glass Corp., v. Samuel, 771 So. 2d 44 (Fla. 4th DCA 2000).

Treble Damages

Some statutes provide for treble damages to punish defendants for intentional financial torts. For example, Florida Statute § 772.11 provides a remedy for civil theft that includes a provision for treble damages as well as attorney's fees and costs. Usually these statutes have a condition precedent. A careful reading of the statute is necessary to ensure that you comply with the conditions. The civil theft statute requires that before an action is filed "the person claiming injury must make a demand for $200 or the treble damage amount of the person liable for damages under this section." If the demand is paid within thirty days, the person making the payment is entitled to a release. If the demand is not met, then a successful litigant will be entitled to his recovery as well as attorney's fees and costs.

It should be noted that the statute also provides that a defendant shall be entitled to recover attorney's fees and costs if there is a finding that a claim was raised without substantial factual or legal support.

Apportionment of Damages

Florida Statute § 768.81 deals with apportionment of damages based on a parties comparative fault. That statute states in part:

(3) Apportionment of damages.--In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability, except as provided in paragraphs (a), (b), and (c):

(a) Where a plaintiff is found to be at fault, the following shall apply:

1. Any defendant found 10 percent or less at fault shall not be subject to joint and several liability.

2. For any defendant found more than 10 percent but less than 25 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $200,000.

3. For any defendant found at least 25 percent but not more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $500,000.

4. For any defendant found more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $1 million.

For any defendant under subparagraph 2., subparagraph 3., or subparagraph 4., the amount of economic damages calculated under joint and several liability shall be in addition to the amount of economic and non-economic damages already apportioned to that defendant based on that defendant's percentage of fault.

(b) Where a plaintiff is found to be without fault, the following shall apply:

1. Any defendant found less than 10 percent at fault shall not be subject to joint and several liability.

2. For any defendant found at least 10 percent but less than 25 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $500,000.

3. For any defendant found at least 25 percent but not more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $1 million.

4. For any defendant found more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $2 million.

For any defendant under subparagraph 2., subparagraph 3., or subparagraph 4., the amount of economic damages calculated under joint and several liability shall be in addition to the amount of economic and non-economic damages already apportioned to that defendant based on that defendant's percentage of fault.

(c) With respect to any defendant whose percentage of fault is less than the fault of a particular plaintiff, the doctrine of joint and several liability shall not apply to any damages imposed against the defendant.

(d) In order to allocate any or all fault to a non-party, a defendant must affirmatively plead the fault of a non-party and, absent a showing of good cause, identify the non-party, if known, or describe the non-party as specifically as practicable, either by motion or in the initial responsive pleading when defenses are first presented, subject to amendment any time before trial in accordance with the Florida Rules of Civil Procedure.

(e) In order to allocate any or all fault to a non-party and include the named or unnamed non-party on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the non-party in causing the plaintiff's injuries.

(4) Applicability.--
(a) This section applies to negligence cases. For purposes of this section, "negligence cases" includes, but is not limited to, civil actions for damages based upon theories of negligence, strict liability, products liability, and professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories. In determining whether a case falls within the term "negligence cases," the court shall look to the substance of the action and not the conclusory terms used by the parties.

This statute was amended in 1999 and the case law regarding this statute is relatively sparse and the interpretation of the statute can be complicated. In essence, a defendant will only be responsible for its percentage of fault in regards to non-economic damages. In most cases, defendants will also be allowed to place non-parties on the verdict form to limit their percentage of responsibility. See Fabre v. Martin 623 So. 2d 1182 (Fla 1993)(and progeny).

The application of joint and several liability for economic damages, however, was modified. The calculations vary in accordance with the degree of fault attributed to the plaintiff and each defendant.

SETOFFS

These issues become more complicated in cases where the plaintiff settles with some defendants and then goes to trial against other defendants. The three general rules that apply to these scenarios are:

  1. Setoffs do not apply to non economic damages. Wells v. Tallahassee Memorial Regional Medical Center, 659 So. 2d 249 (Fla. 1995); Cohen v. Richter, 667 So.2d 889 (Fla. 4th DCA 1996).
  2. Where a defendant is found 100% liable for the plaintiff's damages, the settling defendant who is not found liable cannot be considered a joint tortfeasor for purposes of contribution and setoff. Gouty v. Schneppel, 795 So.2d 959 (Fla. 2001). This is based on the premise that setoff statutes apply only where the liability is joint and several.
  3. When a plaintiff has separate claims against different defendants a setoff is inappropriate.John Caddel Construction Company v. Mendez, 742 So.2d 425 (Fla. 3rd DCA 1999)(if defendants not joint tortfeasors, setoff is not appropriate); Lauth Olsten Home Healthcare, Inc., 678 So.2d 447 (Fla. 2nd DCA 1996).

INTEREST

It has been well established that a plaintiff in a personal injury case is not entitled to interest from the date of loss under the theory that these types of damages are too speculative. See Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212 (Fla. 1985). The only exception to this rule is when the plaintiff can establish loss of a vested property right. Alvarado v. Rice, 614 So. 2d 498 (Fla. 1993). Finally, a recent Florida Supreme Court case, Amerace Corporation v. Stallings, 2002 WL 1290910 (Fla. 2002) held that a plaintiff is not entitled to recover post verdict prejudgment interest.

MAXIMIZING DAMAGES AT TRIAL

From the moment that you take on a case, your attention has to focus on how you will maximize the damages that your client has suffered. That does not mean that you should lie, exaggerate or create damages that do not exist. It means that you must analyze how you are going to ultimately present your evidence of damages to a jury. For example, medical bills. Many of these types of records can be admitted through a records custodian or through stipulation and you will not need a physician to testify about the amount of bills incurred. You will, however, still need to establish that the medical bills were reasonably necessary. Although you do not need expert testimony to support this evidence, see, e.g., Garrett v. Morris Kirschman and Company, Inc., 336 So. 2d 566 (Fla. 1976); East West Karate Ass'n v. Riqueime, 638 So. 2d 604 (Fla. 4th DCA 1994); Dungan v. Ford, 632 So. 2d 159 (Fla. 1st DCA 1994), testimony of medical professionals will help legitimize the medical bills to the jury.

Future medical expenses can only be introduced through expert testimony that future medical treatment will probably be necessary. Shearon v. Sullivan, 821 So. 2d 1222 (Fla. 1st DCA 2002); Owen v. Morrisey, 793 So. 2d 1018 (Fla. 4th DCA 2001).

Nonetheless, there may be strategic reasons why you do not want to introduce evidence of medical bills either past or future. First, the amounts may be so small that they take away from your larger damages, i.e. pain and suffering. Second, the medical bills may create some ambiguities that you do not want to confuse the jury. You want to be prepared to introduce every single item of evidence, but you want to remain flexible to adjust to the circumstances of your case.

Many times, the greatest amount of damages are the non-economic damages suffered by a client whose entire way of life was altered by the injury she sustained. Whether it is a loss of a loved one or a debilitating injury, in many cases the client has suffered a devastating injury from which she will never fully recover. Your challenge is to present the evidence in a manner that will most effectively persuade the jury to award your client an amount of damages to fairly compensate for the loss. This can be done through "day in the life videos", testimony of before and after witnesses and most importantly through your client's own testimony. In preparing your client to testify it is important that she understands the need to be detailed in her testimony without exaggerating. If the jury believes that your client is being less than truthful or that you are being "greedy" in claiming damages, your case will be lost.

One of the best ways to fine-tune your presentation is to do at least one jury simulation. Although the simulation does not need to be a full blown mock trial, you do need to present the key themes of your case along with the defenses you expect to counter at trial. Although it is always nice to hear the mock jurors come back with a big verdict, what you really need to listen to is their deliberations. It is also important to resist "helping" them clear up points during the deliberation. The biggest help you get from these simulations is learning what points are not clear and what issues the jury is not accepting. Many times, you will decide not to present certain aspects of your case including damages that may ultimately weigh down your stronger points. On really big cases, it may be worthwhile to do a jury simulation early on to help you focus your discovery and another simulation as you get closer to trial or mediation. Although these simulations are not infallible they are another tool for preparing your case as well as possible.

Another tool to consider at trial is using a trial/juror consultant. A consultant can help you tailor your voir dire to the facts of your case and can help your client sharpen his testimony. Selecting a good jury is one of the most important aspects of your case. If you select jurors who are biased against you or against plaintiffs in general, then no matter how well you present your case, your chances of success will be greatly diminished. In this vein, it is important to craft questions that will weed out jurors with bias against plaintiffs and against awarding large verdicts. It is also important to identify and remove for cause any jurors who may have a bias to your particular case. For example, some jurors feel that a person who undergoes elective plastic surgery has some fault when things go wrong. Once a juror has expressed such a bias, they should be removed for cause. See Jaffe v. Applebaum, 2002 WL 31114757 (Fla. 4th DCA 2002). Once a juror expresses such a bias, they cannot be rehabilitated. Franco v. State, 777 So. 2d 1138 (Fla. 4th DCA 2001). It is also proper and advisable to ask jurors if they can accept your theory of the case, or whether they would automatically accept a theory of defense. See Lavado v. State, 492 So. 2d 1322 (Fla. 1986). For example, some prospective jurors always ascribe fault (to some extent) to a person who slips and falls. These individuals should also be excused for cause.

Ultimately, jury selection is not about selecting jurors who are biased in your favor. Success in jury selection comes from identifying and excusing prospective jurors whose bias will make it difficult, if not impossible, to award your client the damages she deserves.

Once the jury is selected the trial begins. It is your responsibility to set the tone for the case from the start. Many believe that cases are won and lost in opening statements. Although that may be hyperbole, a strong opening argument will take you a long way towards your goal. I feel the plaintiff should be dedicated to a precise and unrelenting factual pattern. On occasion, I will add favorable admissions from defendant's deposition to my factual pattern, but do so cautiously aware that any ambiguities raised by the defendant's deposition will be injected by the defendant.

I want an irrefutable set of facts. Therefore, I am reciting the facts from the start of opening statement. These "facts" must not be allowed to be compromised by defendant trying to change them. It is the defendants who often try to change the facts.

Some examples of defendants ignoring the real facts include:

- Leaving out a key symptom continuously;

- Changing a word from prior deposition testimony;

- Using the doctors - not the records - descriptions.

To enhance the opening statement and to keep the jurors' attention, I use exhibits such as blow-ups of the record and other demonstrative methods to illustrate and cement in the jury's mind what the actual facts are. Always, I am trying to simplify the case for the jury. Thus, I always start off opening and closing with a very simple overview of the case.

E.g., this is a case involving an 18-year-old girl in a car accident, who was taken to the hospital for a single broken leg but wound up getting a blood clot in the leg which traveled to her lung and killed her. The blood clot was totally predictable but was not guarded against. The doctors had many warning signs which they misread. Because of their negligence which is nothing more than running a medical stop sign, she died unnecessarily. She should have walked out of the hospital with a cast. Instead, she is gone and her parents are deeply grieving for the rest of their lives.

After this simple overview, which I feel is important for anyone listening to the story of a case should have before the story begins, I will then explain in great detail what happened. But I like to substitute my own words as much as I can for complex medical terms. For each fancy medical word, I will pause and redefine it and perhaps write the word and its definition on the blackboard.

I then conclude by asking the jury to listen carefully to the evidence and then give them a range of what I will be asking for at closing. For example: "At the end of this case, I will get a chance to speak with you again and I will ask you to award my client damages in the millions of dollars to compensate him for the devastating injuries that he has suffered."

Ideally, the presentation of evidence will follow a logical and organized pattern. You want your strongest witness on liability to testify first and you want to end with your client. Realistically, however, trials rarely run smoothly and often times you have to fill gaps in between experts. You must be flexible. If the judge is not one to give you many breaks, always have local witnesses available to testify on short notice or use the "gaps" to read or play deposition testimony. To the extent possible, it is better to establish firmly your liability before you address damages. This sends the subtle message to the jury that you are not asking for sympathy, but that you want them to address your case on the merits.

Cross examining the defense experts is a matter of preparation, preparation, preparation that should start well before the expert's deposition. It is important to try and collect as much information about the expert that you can. This includes prior depositions and court testimony as well as reading every publication that the expert has written about the subject in your case. You should also be prepared to cross examine the expert on her litigation history and her working relationship with opposing counsel and his firm. Ultimately, the best way to beat opposing experts is on the facts. No one will know the facts of your case better than you do and you must listen attentively to the expert's testimony on direct examination and be prepared to pick apart any assumptions that the expert makes that are not consistent with the facts of the case. It is rare when you can match wits with an expert in her field of expertise, and a battle on these lines is a loser in front of the jury.

Conversely, if you can show the jury that the expert is basing her opinion on facts that are not consistent with the facts of your case it will take you a long way towards a favorable verdict. Even when you score points on complicated technical matters the jury often does not understand. Anyone, however, can understand that an expert has misunderstood the facts. Armed with the results of your cross examination you will be ready to give a persuasive closing argument.

You cannot begin to win your case in closing argument. You can however put the final nail in the proverbial defense coffin. Although passion is important in your closing argument, without substance the passion will ring hollow. In essence, your closing argument should merely reinforce the points that you have established during your case and during the cross examination of the defendant and his experts. Demonstrative evidence and selected portions of testimony are all very helpful in organizing your presentation and in helping the jury understand the major points you want to emphasize. It is important that your exhibits be accurate so that the defendant cannot attack their accuracy and undermine your credibility with the jury.

I also find it helpful to blow up the verdict form and selected jury instructions to review with the jury. Remember, if you do not request damages in your initial closing statement, you cannot then raise them in your rebuttal.

Although strategies change from case to case, there are a couple of truisms that you should keep in mind in every case. Do not overreach. If the jury thinks you are being greedy or that you are exaggerating a claim they will punish you. Do not personally attack opposing counsel or the defendant. You do not want to put the jury in a position of endorsing your criticisms. Criticize the evidence or their interpretation or knowledge of the facts, but do not make it personal. Do not call witnesses liars (except in the most extreme case where the witness was blatantly lying and you proved it). If the jurors feel that a verdict in your favor requires finding that someone has perjured themselves, you have created a higher burden for yourself. Finally, do not ask the jury to award you damages with which you are not comfortable. The jurors will sense your ambivalence and may award you far less or even find against you.

DECIDING WHETHER TO APPEAL

This is the worst decision an attorney has to make because it means you lost at the trial level. The decision to file an appeal is guided by common sense and your client's best interest. If you did not beat the offer of judgment, often defendants will waive their right to pursue attorney's fees and costs against your client in exchange for your waiving the right to appeal. If your client is not "collectible", then the decision to appeal is easier as your client does not have much to lose. If your client has substantial assets, he may wish to cut his losses and avoid having a judgment against him. Of course, you must always weigh the strength of your appeal in making the final decision.

Also, you must remember that you have ten days from the date of the verdict to file a motion for a new trial. See Florida Rule of Civil Procedure, 1.530(b). Of course the motion can be amended, at the court's discretion, at a later time to state new grounds.

Ethical standards

In the long run, the best way that you can represent your clients is by always being ethical. Establishing a reputation as a trustworthy attorney with the judges and your opponents will take you a long way. Once you earn the trust of a judge, she will be more willing to rule in your favor on a difficult legal issue because she will know that you are accurately representing the law to her. Similarly, when a judge knows that you always try to be ethical and honest the judge will listen attentively to you on discovery issues and other matters.

Being ethical does not merely mean that you should not misrepresent the law or the facts. It also means that you must cite controlling law that goes against you. Furthermore, you should always be courteous and respectful to your opponent and the opposing party. Too often civil litigation is anything but civil. No one case should be so important that you compromise your principles or ethical standards just to gain an advantage. You owe your clients a duty to represent them as vigorously as possible within the law and the cannon of ethics. You do not owe it to any client to lie, cheat or be disrespectful. That is not the way to win cases and it is not the way to establish yourself as a respected attorney in the community who is sought out by clients.

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