Trial

WHO HAS THE BURDEN OF PROOF AND WHAT IS IT ANYWAY?

January 27, 2016 | Wolfson & Leon

The short answer is “If you say it, then you prove it”. That seems fair, right? But do all cases have to be proved “beyond a reasonable doubt”? The answer is no and the reason why makes sense.

The United States Declaration of Independence declares “Life, Liberty and the Pursuit of Happiness” as inalienable rights. The 5^th Amendment offers protections to our “life, liberty, or property” noting that these rights cannot be taken from us without due process of law.

If your life, liberty or pursuit of happiness is at risk then you are most likely a criminal defendant and it is the government that is trying to take these rights from you. As such, the burden on the government should be as high as possible to protect your rights. As everyone has heard in nearly every movie or TV show, that burden is generally stated as “beyond a reasonable doubt”. That makes sense too.

JUROR SAFETY AND IDENTITY THEFT

December 21, 2015 | Wolfson & Leon

A mistrial was declared in Broward Circuit Court when several jurors voiced concerns about their personal safety from a criminal defendant and his supporters. The jurors were also worried about identity theft because of their personal information being in the public record. The jurors’ fears and concerns, while rare, were indeed valid.

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The mistrial was declared on the second day of trial because the defendant could not be assured of a fair and impartial jury. The defendant had been charged with second-degree murder for shooting someone outside a Davie, Florida pool hall. Jury selection lasted two day and 180 potential jurors were interviewed before selecting eight jurors for the trial. On day two of the trial, one female juror asked a question that ultimately caused a mistrial. She asked Broward Circuit Judge Jeffery Levenson if her personal information, such as her name and address, was part of the public record that could be viewed by anyone. Later other jurors told the judge that they were also concerned with whether their personal information was secure from not only identity thieves but from the defendant and his supporters. The mistrial was declared and the trial was reset for early 2016.

This incident involves two issues – juror safety and identity theft. As for juror safety, jurors’ identities are generally known to everyone. Usually, a juror will not be asked about their race, religion or sexual preference. They will be asked about what neighborhood or city they live and work in. They can be asked about marital status, family members and even what magazines or websites they like. Jurors can be asked to sit for a criminal or civil case. In general, jurors are not anonymous except in rare high profile criminal cases. In most criminal cases, potential jurors are concerned about their safety from the defendant and his/her supporters but that issue is usually handled in jury selection. Juror safety concerns are almost exclusively reserved to criminal trials because of the nature of the proceedings. The defendant is charged with a crime, often a violent one, and as a result is in danger of losing their life or liberty. Juror safety concerns in criminal trials is of paramount importance to the judge, the lawyers and to the system itself.

MORE CONFESSIONS OF AN INSURANCE DEFENSE TRIAL ATTORNEY

December 16, 2015 | Wolfson & Leon

We are pleased to bring back, by popular demand, our anonymous insurance defense trial attorney for more “confessions”. These pieces inform and instruct clients and litigants on areas that Defense Lawyer’s capitilize on. To prepare and protect you, our clients. Because we only represent victims. Today’s topic is preparation and what every injured person can do to avoid inadvertently sabotaging their own case. While your personal injury lawyer is responsible to guard your best interests and to achieve justice, the attorney cannot do it alone. You are partners with different responsibilities. Your main responsibility is to avoid common mistakes that could end up destroying your case in front of a jury. According to our insurance defense attorney here are a few basic things to avoid:

GO TO ALL OF YOUR DOCTOR AND THERAPY APPOINTMENTS

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In teaching young attorneys how to try cases, much of the instruction centers on preparation. An important aspect of Trial Prep are timelines of events such as litigation and medical treatment. If you are able to look at the timelines individually and collectively you will often see a different picture. This view is analogous to viewing art in a museum. Look from a distance. Then walk up close for another look. Then finally return to the distant view and with the knowledge of the detailed view you will see a “third” view of the art.

“HOW TO GET OUT OF JURY DUTY IN MIAMI?”

December 16, 2015 | Wolfson & Leon

jury You just got your summons for jury duty and your first thought might be “How do I get out of jury duty in Miami?” But if you really think about it, is that the right thing to do? What if you had a personal injury case that needed to be tried before a jury and no one showed up? What if you were the victim of a crime and were relying upon good intelligent jurors to weigh the evidence in your case against the Defendant? Or, even worse, what if you were a wrongly accused Defendant and you were innocent and needed smart jurors to see that?

Trial by jury is the cornerstone of our judicial system. We here at Wolfson & Leon are trial lawyers who represent people who suffered personal injuries due to the negligence of others. We consistently rely on the good citizens of Miami-Dade County to serve as jurors. We always encourage our clients, employees and attorneys to serve when called.

We also believe that everyone who is eligible should serve as a juror because we all count on each other to get through this life. One day you might be a juror. The next time you might be a plaintiff or a defendant and you will be counting on a jury to deliver justice. We all need each other and our system of justice counts on all of us.

M.I.S.T – MINOR INJURY SOFT TISSUE CLAIMS

November 23, 2015 | Wolfson & Leon

Insurance companies classify injury claims for evaluation and efficiency. One of the main categories are MIST (Minor Impact Soft Injury) or LIST (Low Impact Soft Tissue) claims. Once a claim is designated as a MIST claim, the insurance company will set a value based on other MIST claims and rarely increase the offer unless there is a significant and serious change in the facts of the claim.

M.I.S.T – MINOR INJURY SOFT TISSUE CLAIMS Jonah Wolfson Miami

One of the goals of an insurance company is efficiency. It is how they maximize their profits. Think about how insurance companies encourage or reward you for going online to self-service your policy and premiums. Every time you handle your insurance issues online, you are not costing the company any employee time – and time is money.

By classifying cases insurance companies, reduce your claim to simple numbers. There is no consideration of the shock, pain or emotional toll caused by the accident as it is irrelevant to the insurance company. They can give a young claim representative hundreds of MIST claims with talking points and marching orders to handle all of the claims the same way.

WHY DO I HAVE TO SIGN A RELEASE?

November 16, 2015 | Wolfson & Leon

If you settle your personal injury claim, you will need to sign a release to get the money. A release basically means that you are releasing, or letting go, your claims against the responsible party. In a car accident, that usually means the owner and operator of the other vehicle as well as their insurance company. In a slip and fall injury, it would be the property owner. In a medical malpractice case, the doctor and possibly the hospital would want a release in exchange for a settlement.

Releases are covered by basic contract law. There is an offer to settle and, if agreed, an acceptance of that offer. But there must be what is called a “meeting of the minds” which means that the terms of the offer and acceptance must be agreed to by both parties. If the acceptance does not match or “mirror” the offer, then there is no agreement.

In a recent Florida case, the importance of having a “meeting of the minds” was clearly demonstrated. After a car accident, the injured party offered to settle her claim against the other driver for his policy limits with USAA Insurance Company. In addition, she offered to release her claims against the other driver. However, her attorney specifically advised USAA that she would not sign a release containing a hold harmless agreement nor an indemnity agreement. The attorney also warned USAA that any attempt to release anyone other than the other driver would act as a rejection of her good faith offer to settle.

RECOVERING FUTURE MEDICAL EXPENSES AND LOST EARNING CAPACITY – ONLY IF YOU CAN PROVE IT

November 16, 2015 | Wolfson & Leon

If you are injured in a car accident, you may be entitled to damages which can include future medical expenses and loss of earning capacity. However, Florida law requires that you must present sufficient evidence that a jury could, with reasonable certainty, determine the amounts of future damages. Florida courts will not allow speculative future damages that are unsupported by the evidence – no matter how seriously a person is injured.

Consider the case of Erin Joynt who was severely injured when she was run over by a Volusia County Beach Patrol truck while sunbathing at the beach. She was vacationing with her husband and children from Kansas when a lifeguard ran over her head and body. Ms. Joynt suffered a fractured skull, memory loss, broken ribs, and a collapsed lung. She continued to have a lingering paralysis on the left side of her face. Her story received international attention.

Joynt filed a negligence suit against the County, seeking damages for the injuries she suffered. After a four-day trial, the jury awarded $2.6 million in compensatory damages, broken down as follows: $2 million for past and future pain and suffering; $500,000 for diminished earning capacity, and $100,000 for future medical expenses.

Accident Lawyer Discusses Four Ways Personal Injury Victims Harm Their Credibility and Put Their Recoveries at Risk

November 9, 2015 | Wolfson & Leon

If you’ve been injured in an accident, you may be facing a range of new concerns—from lifestyle changes related to your injuries to lost time at work and medical expenses. The last thing from your mind may be your social media posts or that golf accident you had two years ago. Yet, if you are seeking representation from an accident lawyer in Miami to receive a recovery for your injuries, your social media use, prior injuries, and even the kind of medical care you receive can have a huge impact on the outcome of your case. Here are five things to be aware of if you’re in the process of working with or finding a car accident attorney.

Disclose all prior injuries. You must let your attorney know about any injuries you may have suffered before your accident—even if they are minor. If these injuries come up in court and aren’t previously disclosed, they can hurt your case. An extreme example of this was recently reported in the Miami Herald. A man won a $184,429 personal injury recovery, but had this verdict thrown out when it came to light that he had sustained injuries when he was tackled by police officers after taking a drunken golf cart joyride through the city.
Avoid posting to social media. Anything you say in social media may be used against you—whether or not it pertains to your case. Even an innocent vacation photo can impact how a judge or jury perceives your claim. You can significantly damage even a straightforward case if you post the wrong picture or say the wrong thing. Your best bet is to avoid social media until your case is over. Or, if you must post something, pass it by your lawyer first.

CHIROPRACTOR WINS $14.5 MILLION AGAINST GEICO

November 9, 2015 | Wolfson & Leon

A chiropractor and his wife were awarded $14.5 million in their lawsuit against GEICO in Miami-Dade County. The jury’s verdict was based on a December 2004 highway collision with an uninsured motorist. Dr. David Zucker and his wife filed their lawsuit in 2006 and finally received their verdict over 9 years later.

The jury found in favor of Dr. Zucker and awarded him damages for:

$767,740.00 in Past Lost Wages: The amount of money he lost as income because of the crash

JURY SAYS GEICO FAILED

October 29, 2015 | Wolfson & Leon

A jury told GEICO to pay $9.6 million because it failed to help its own policyholder settle a claim following a fatal accident. When an insurance company pays its policy limits that does not settle the case. Insurance companies have to try to get a release for its policyholder whenever it can. That is the duty it owes to the people who pay for their insurance.

James Harvey was insured with GEICO with $100,000 policy limits. He had crashed his Hummer into motorcyclist John Potts and killed him. GEICO sent a check for the $100,000 policy limits to the attorney who represented Mr. Potts’ estate. The estate’s attorney properly requested GEICO to make Mr. Harvey available to answer questions about any other assets he might have to compensate the estate. GEICO said no and advised Mr. Harvey to not give a statement.

The GEICO adjuster ignored the estate’s attorney. If GEICO had allowed and encouraged Mr. Harvey to provide asset information to the estate attorney, then the estate would have executed a release for the $100,000 policy limits. After weeks of no response from GEICO, the estate filed a wrongful death lawsuit against the GEICO insured and obtained an $8.47 million verdict against Mr. Harvey.