Year: 2017

How do you get the money you deserve from an insurance company?

Insurance companies want to make and keep as much money as they possibly can. That means they are happy to take your monthly premiums but are loath to part with any of that money to pay Plaintiffs on insurance claims. They will do everything they can to avoid paying all of what they owe.

Insurance companies pay a fraction of what they owe by betting against the Plaintiff’s lawyer. They bet that the Plaintiff’s lawyer would rather settle the case for a quick buck than fight for the amount that the Plaintiff deserves. So, they offer a fraction of what the case is worth and bet that the lawyer settles it. The insurance company dares the lawyers, “We dare you to walk away from this small settlement off and fight for you client.”

The sad part is, most lawyers nowadays back down from that dare. They accept easy money and leave their clients out in the cold. What’s worse is that the more often lawyers back down, the less the insurance companies are willing to pay. The insurance companies thinks: if I can get $30,000 lawsuits to go away for $2,000, why not make them go away for $1,000.

A few reasons why some lawyers don’t fight for their clients:

  • Many law firms are “mills,” high volume practices that make little bits of money from lots of cases. They don’t practice law, they practice advertise and settle. These law firms sign up clients, beg the insurance company for money, and accept whatever they get. Working up cases goes against their business model. So when they have a client that won’t settle for the crumbs an insurance company offers, the “mill” will usually fire their own client!
  • Filing a lawsuit and litigating a case is difficult and can take up a lot of time. If you file a lawsuit, you have to pay $400 just to file it, you’ll have to write motions, find and speak to witnesses, go to court, and deal with unpleasant people on the other side. Most lawyers would prefer not to go through that headache (forgetting that all of the above is their job description). So they take a discount on justice, their clients suffer, and they call it the price of not having to work.
  • Most lawyers are afraid to go to trial. Once you file a lawsuit, the natural endpoint of that lawsuit is a trial. Trials have high-stakes and require tons of preparation and time without any guarantee that you will win. Plus, to be any good at trial, you have to have a healthy amount of trial experience. The sad truth is that trials are so rare nowadays, that most people who call themselves “trial lawyers” haven’t even tried 10 jury trials. So, when the case starts getting close to trial, most lawyers will try every way they can to get out of trial; typically that means settling for less than the client deserves.

At CHG, we believe it’s time to change the paradigm. A lawyer’s default position shouldn’t be to settle a case, it should be to go to trial. The best way to deal with insurance companies is the same way you deal will bullies: fight them. Dare us to walk away from a crumby settlement offer and fight? Gladly. That’s the only way to ensure that our clients get their full measure of justice.

Put six in the box.

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Recently, a Miami jury awarded $27.7 million in punitive damages to the Pereira family after Judge Schlesinger allowed them to consider whether punitive damages should be awarded in a hit and run accident as a result of a defendant’s failure to stay on scene; a novel concept being that most behavior warranting punitive damages occurs before the wrongful conduct.

It was a Monday night on a one-lane road on Northwest 12th Avenue and Northwest 108th Terrace just before 9:30 p.m. Sixteen year-old Cash Pereira was skateboarding down the street when he was suddenly struck by the defendant, Gabriel Fleuricourt, from his skateboard. While the defendant claims it was an accident, and that he was just trying to pass the car ahead of him, the defendant’s next actions are what contributed to the punitive damages award and young Cash’s death.

The defendant, Mr. Fleuricourt, did not stop. He did not try and help. He did not stay and call the paramedics. Knowing that young Cash did not have anything to stand between his young body and the metal frame of his vehicle, Mr. Fleuricourt still made the wilful and deliberate decision to flee the scene where he had just struck young Cash off his skateboard. He never stopped to render aid to young Cash as he laid on the one-lane road. Stopping to render aid could have made a difference to Cash Pereira’s life. Stopping to render aid could have at least provided young Cash a chance.

In the Daily Business Review published on October 16, 2017, it was reported that prior to allowing the Plaintiff to move forward on punitive damages, Judge Scola, who was substituting for Judge Schlesinger, informed the plaintiff’s attorney that he needed to demonstrate that there was a connection between young Cash dying at the scene, and the defendant’s decision to flee rather than stop and render aid. Judge Scola wanted more support because there is no case law explicitly stating that leaving the scene of an accident warrants punitive damages as a matter of law.

Under Florida law, for punitive damages to be awarded, the plaintiff must prove that defendant “had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage…would result” or “that the defendant’s conduct was so reckless or wanton in care that it constituted a conscious disregard of indifference to life [or] safety.” In the plaintiff attorney’s second motion for punitive damages, he argued that a lack of timely medical treatment was the nexus between the defendant fleeing the scene and Cash’s death. This was corroborated by one of the detectives, who told the court that there were approximately ten minutes that passed between the crash and the arrival of the first responders. The detective stated that those minutes are critical and possibly could have saved Cash’s life. Judge Schlesinger granted the second motion for punitive damages, and at trial, the jurors awarded $37 million dollars to the Pereira family, which included $27.7 million in punitive damages.

Take away

When there is no case law on whether punitive damages are permitted as a matter of law, as an advocate, you cannot back down from arguing why you believe your specific case warrants punitive damages. It requires more work. It requires more analysis, but in the end, your ability to think outside the box and think through the facts of your case is absolutely necessary to help your client, and the greater community at large. While compensatory damages are meant to pay your client for what he or she specifically suffered, punitive damages are meant to tell your surrounding community that the conduct in question, like leaving the scene of an accident, will not be tolerated.

Tip your cap to attorney Justin Shapiro for his great work for the family of young Cash Pereira and for the great work that he has done for plaintiff’s all over Miami and Florida. As s result of his passionate and zealous advocacy, plaintiff’s attorneys around the state, and possibly the country, can use Judge Schlesinger’s order as persuasive authority when advocating for punitive damages in hit-and-run accidents.

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When you are injured through the negligence or wrongdoing of another, it can be a pretty traumatic event. Undoubtedly, your injury involved pain and suffering, mental anguish, and other terrible inconveniences. In Florida, if you or a loved one has been injured in a motor vehicle accident, a recovery for pain, suffering, mental anguish, and inconvenience may be obtained. However, under Florida law, in the great majority of motor vehicle accident cases, in order to make a recovery for pain and suffering, the permanent injury threshold must be satisfied.

Specifically, Florida Statutes § 627.737, provides that in any tort action brought against a person legally responsible for his or her actions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury … arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:

  • Significant and permanent loss of an important bodily function;
  • Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement;
  • Significant and permanent scarring or disfigurement;
  • Death

Accordingly, in a great number of motor vehicle accidents, if a doctor or medical expert does not make a finding that your injury consists in whole or in part of one of the 4 (four) above-mentioned elements, then it is likely you cannot recover damages in tort for pain and suffering.

However, in the law, because everything always seems to “depend” on something else, it should be noted that you do not always need to have a permanent injury to recover pain, suffering, mental anguish, and inconvenience. Knowing as much could make a world of difference for your case.

In Utvich v Felizola, 742 So.2d847 (Fla 3d DCA 1999), a taxi driver (Felizola) was injured after being rear-ended by another car (Utvich). The tax-driver sued the other car for his injuries, and at trial, the jury awarded the taxi-driver damages for past lost wages, past medical expenses, past pain and suffering, and loss of future earning capacity. The attorneys for the other car argued that the taxi-driver could not recover damages for pain and suffering because the tax-driver did not prove a permanent injury.

The court, however, held that “taxis are definitionally excluded from the no-fault law,” citing Florida Statutes §627.733(1). The court went on to say that in Lasky v. State Farm Ins. Co., 296 So. 2d 9, 21-22 (Fla. 1974), taxis, motorcycles, buses, and commercial vehicles do not come within the provisions of the no-fault act. As such, such vehicles do not fall within the scope of the statutes requiring claimants to prove permanency.

For most involved in a motor vehicle accident, this caveat might not mean much. But when you have been injured in an accident involving one of these types of vehicles, knowing you may be entitled to pain and suffering damages regardless of proving permanency could go a long way for you and your family.

If you or a loved one has been injured through the fault of another we know that this can be a very difficult time.  You do not have to deal with it alone, we would love to help.

Give us a call or fill out the contact form for a free consultation.

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In a Florida personal injury case a person may be entitled to receive money meant to compensate many of the negative impacts that the injury caused the person in his or her every day life.  The money is meant to be a way for the wrongdoer to put the injured person back in the position that he or she was in at the time of the injury, also known as making the injured person whole. But sometimes, when the wrongdoers’ act is specially outrageous, the injured person is entitled to damages meant to punish the wrongdoer.

Here is a brief explanation of the many possible things you may be entitled to recover money for in Florida if you have been injured.

Economic Damages

Economic damages are those that can be quantified in a dollar value and are easily measured.  These are things like past and future medical expenses, loss of wages, loss of earning capacity, etc. This category of damages is meant to pay you for money that you spent (or are going to spend) as a result of the injury, and also money that you would have earned had you not been injured.

Non-Economic Damages

Non-economic damages are damages that cannot be measured in dollar amounts at the outset.  They are the kind of thing about which reasonable minds may differ and for which there is no readily available market for in everyday life.  These include pain and suffering, mental anguish, loss of enjoyment of life. In Florida the jury is free to award as much or as little as it deems appropriate for non-economic damages.

Punitive Damages

The purpose of personal injury law is not to punish the wrongdoer, but rather to make the injured person whole.  Under the law, however, there are times when the wrongdoer’s conduct is so outrageous that the law allows for money awards that are meant not to make the injured party whole, but rather to punish the wrongdoer and also send a message to those who are in the same position as the wrongdoer that this kind of conduct will not be tolerated.

There are limited ways to recover punitive damages in Florida and a specific set of rules that must be followed in order to be able to recover these damages.  If you’d like to know more about punitive damages see our punitive damages article.

If you or a loved one has been injured through the fault of another we know that this can be a very difficult time.  You do not have to deal with it alone, we would love to help.

Give us a call or fill out the contact form for a free consultation.

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So you or a family member got arrested. What should you do? How do you get out of jail? What’s the next thing that’s going happen? What are the most important things that you should do?

I’m going to answer all of those questions and more. But first, here’s a list of the criminal justice process in chronological order:

  1. Arrest
  2. First Appearance/Bond Hearing
  3. Arraignment
  4. Sounding/Plea Date
  5. Trial

What Should You Do?

The most important action you can take for your case is to hire an experienced criminal defense attorney. Obviously, I recommend my firm, Cornish, Hernandez, & Gonzalez PLLC. But whatever attorney you choose should be knowledgeable, experienced, and aggressive enough to take your case to trial. After all, you already got arrested, so the prosecution has already started on the offensive. You want to be able to respond decisively.

A lawyer unwilling to go to trial is like an attack dog with no teeth. A toothless attack dog isn’t much of a threat. Likewise, no prosecutor or judge will consider a toothless attorney a threat.

ARREST

An arrest is the event that typically begins a criminal case and sets the wheels of the criminal justice system in motion.

The police officer believes you committed a crime. So he wraps a pair of handcuffs around your wrists and takes you to jail. You sit in jail until you can get out (that could be 12 hours or 12 months).  So, what are the most important things that you or your family members can do for you?

  1. The most important thing to do is GET OUT OF JAIL!

If you’re arrested, you have to stay in jail until a judge decides to release you or until you pay your bond. From the moment you’re arrested, there’s a set amount of money that you have to pay to get out of jail (unless you’re charged with a non-bondable offense – then there’s no amount of money you can pay to get out of jail, at first). The amount you have to pay is decided by the crimes you’re charged with. Your family or friends can find out the amount of your bond by calling the jail you’re in and asking or calling a bail bondsman.

It’s best to pay that amount as soon as possible because the judge at the First Appearance Hearing has the power to raise the amount you have to pay to get out of jail (that judge can lower the amount as well, but it’s better not to take an unnecessary risk). In order to pay the bond, it’s best to contact a bondsman; they typically charge you only 10% of the total bond amount. A quick Internet search for Miami Bondsman will reveal a host of options.

  1. The second most important thing is to GET A LAWYER!

Whether you got arrested, or are pending arrest, immediately hiring an experienced criminal defense lawyer is critical for you and your case. He or she can assess the strengths and weaknesses of your case, gather helpful evidence that is quickly destroyed (like store surveillance), help you get out of jail, and generally maneuver the system with the ease born of experience. Also, it’s a sad fact that many judges and prosecutors don’t take an accused person as seriously as they would his lawyer. If you want a judge to take your argument or position seriously, you need a lawyer who knows what he’s doing to represent you.

FIRST APPEARANCE

The First Appearance is also known as a “Bond Hearing.” Every person in Florida who’s arrested and is still in jail is legally required to see a judge within 24 hours of his or her arrest. Fla. R. Crim. Pro. 3.130. At that hearing, the judge does two things:

  • Decide if there is Probable Cause and if there is,
  • Sets a bond, the amount of money a defendant has to pay to get out of jail.

Probable Cause

The judge may only hold you on bond if there is probable cause for your arrest. Essentially, the judge reads the arrest form that the police officer wrote and checks to see if there’s some proof for every element of the law he or she is accusing you of breaking. If the judge decides that there is no probable cause for any crime, she must release you. This will not change the fact that you got arrested, or get rid of your criminal case, but at least you’ll go home without having to pay a bond.

If the judge decides that there is probable cause for a crime, she must then set a bond.

Setting a Bond

The judge has the power to (1) raise the bond, (2) leave the bond the same amount that was issued to you when you got arrested, (3) lower the bond, or (4) release somebody for free can leave the standard bond as it is but she also has the power to lower the amount of bond, release people for free (rarely done), or increase the amount of their bond. Remember, every defendant

So, what are the most important things for you to do if you or your family member has a first appearance hearing coming up?

  1. GET A LAWYER!

I cannot stress this point enough, the most important thing to do for your criminal case is to get an experienced criminal defense lawyer. An experienced lawyer has the best chance to lower your bond and then facilitate your release as soon as possible. He also knows how to coordinate with the Department of Corrections if there are any release conditions (like GPS monitoring or House Arrest) that need to be arranged.

  1. HAVE FAMILY MEMBERS ATTEND THE FIRST APPEARANCE

Judges are people. People who handle hundreds of cases every day. To them, each defendant is nothing more than an arrest form. To them, you are not different than all the other people that got arrested. And it’s hard for a person to feel emotion for and want to help a piece of paper. The best way to shake judges out of that attitude is to have your family there to show the judge that the person in front of them is a human being who has people that love him. That alone, goes a long way to persuading judges to release you or your family member from jail.

TO BE CONTINUED…

There’s three more steps in the life of a criminal case: (1) Arraignment, (2) Sounding or Plea Date, and (3) Trial. I’ll explain those in the next blog post.

If you want to say anything about this blog post or ask any questions, let us know in the comments, by email, or through our Facebook page. If you want us to cover any specific topics, let us know in the comments or shoot us an email at info@chglawyers.com.

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Insurance companies will use everything they can to reduce your amount of recovery. A few common tactics insurance adjusters and defense attorneys will use when building their case against you are the following: 1) hire investigators to take pictures/video of you if they suspect you are not as injured as you claim; 2) run a variety of background checks to uncover prior accidents, and 3) request your prior medical records to discover whether you had a prior accident or condition that could have been the cause of your present injury claim. As a result, when you are treating for injuries you sustained from an accident, providing a full and accurate medical history to your doctor is very important.

Why an Accurate Medical History is Important?

By thinking through your medical history chronologically to ensure your doctor has the most accurate and complete record, you can take a lot of steam out of the defense’s case. When insurance companies and defense attorneys receive your medical records, they closely analyze them with the hopes of minimizing or completely destroying your right to recovery. They look for inconsistencies, contradictions, or any other explanation to say they are not responsible for your claimed injuries or condition. If you have a prior injury, and you failed to mention it, they will say your claimed injury and pain and suffering did not result from the incident with their insured, but from some prior event which you failed to disclose to your treating physician.

When your doctor has an accurate account of your past it reduces the ability for the defense to: 1) hurt your believability in front of the jury; 2) argue that you were purposely hiding your medical history just to make a recovery for an unrelated accident; and 3) argue to the judge that you are attempting to commit fraud upon the court. While fraud on the court takes more than a few inconsistencies[1], some insurance companies and defense attorneys will try and make such an audacious claim to reduce your legitimate right of recovery.

It is understandable you may be worried to mention that prior accident or surgery. You have a high medical bill. You are in pain because the defendant re-aggravated a pre-existing condition, and you are scared to death the insurance company will try and use your prior injuries to deny compensating you when you are in worse pain as a result of their insured’s negligence. Just relax, take a deep breath, and know that the law provides you protection.

Why the Prior Accident or Injury does not Ruin Your Case—the Eggshell Doctrine

Wrongdoers and their insurance companies do not get to pick and choose who they harm. As a result, your preexisting injury or condition is no defense to the harm someone causes you. This is known as the eggshell doctrine, and it essentially means that the defendant must take you as he finds you. While a preexisting injury can cause someone to be more prone to future injury, it is still no defense. If you have been hurt as a result of a prior accident, and your condition worsened as a result of a subsequent accident, you should be compensated to ensure your present and future care is paid for by the negligent party and/or his insurance company.

Conclusion

Intimidating? Perhaps. Should you be? Not if you are up-front with your doctor and your attorney. The most important piece of advice when treating with your physician is to be up-front about your medical history (particularly prior injuries you’ve claimed) and to not hold anything back from your attorney about your prior accidents/injuries. Sometimes you forget and sometimes you simply do not remember…small mistakes won’t be the end of the world, but failing to think about that prior collision or rollover where you were taken to the hospital could really hurt your case. It is bad enough that you have to wait for a recovery while you treat for your injuries, and incur unwanted medical expenses. Let’s not make it easier for the billion-dollar insurance companies to avoid giving you what you deserve when the wrongdoer is still responsible for aggravating your pre-existing injury or condition.

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[1] “Fraud . . .  is more than a simple assertion of facts in a pleading that might later fail for lack of proof.” Wells Fargo Bank, N.A. v. Reeves, 92 So.3d 249, 252 (Fla. 1st DCA 2012).“Generally, unless it appears that the process of trial has itself been subverted, factual inconsistencies or even false statements are well managed through the use of impeachment at trial or other traditional discovery sanctions, not through dismissal of a possibly meritorious claim.” Howard v. Risch, 959 So.2d 308, 311 (Fla. 2d DCA 2007).

 

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Punitive damages are damages awarded in a civil case.  These are damages that go above and beyond simply compensating the wronged party, they are intended to punish the wrongdoer.  In Florida tort law punitive damages are only available to a claimant if the claimant can show:

  1. Intentional Misconduct, or
  2. Gross Negligence

Intentional Misconduct

Intentional misconduct comes about when the defendant knew that his or her actions were wrong and that his or her actions had a high probability to cause injury to others and while armed with that knowledge the defendant intentionally continued with his or her actions.  This is meant to punish those who intentionally act knowing that others will be hurt by their acts.

An example of this would be when a company that makes medical devices learns that the devices have a defect which injure people but they decided that the cost of fighting the lawsuits will be lower than the cost of recalling the devices so they decide that they will continue selling the devices regardless of who gets hurt.  One of the points of punitive damages is to deter that kind of behavior by affecting that calculation.

Gross Negligence

Gross negligence means conduct that is so reckless or wanting in care that it constitutes a conscious disregard or indifference to life, safety, or rights of persons exposed to such conduct.  This is a standard that is substantially higher than mere negligence.  This comes about when a person or entity knows that something has a high risk of causing injury and disregards that risk.  Gross negligence, unlike intentional misconduct, gross negligence does not require that the act or omission be done with the intent to injure.  Instead, it is sufficient that the act or omission take place with the knowledge that the act or omission poses a grave risk to others.  It is an act or set of acts or omissions that while not necessarily intended to cause injury they would have lead any reasonable person to conclude that injury was almost imminent.

If you have been injured through the fault of another we know that this can be a very difficult time.  You do not have to deal with it alone, we would love to help.  Give us a call or fill out the contact form for a free consultation.

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It’s Friday night in Miami. You’re wearing your nice brown loafers, good pair of jeans, white button-down shirt, and a navy blazer. You look good. You feel good. And you’re ready for dinner with that young lady you’re meeting at that Italian restaurant in the Grove. After dinner, you both decide to grab a drink at a local Miami spot.

You walk in. People are standing shoulder to shoulder. Live music playing somewhere in the background. You and your date decide to take the plunge into the crowd as you walk hand-in-hand, trying to squeeze through the wave of people on your way to the bar.

When you both make it to the bar, she orders a dirty Martini with bleu cheese olives, and you take a glass of scotch, straight up…something at least 12 years old. As you both stand face-to-face slightly leaning on the bar, you’re chatting, flirting, and shyly touching one another as you both feel the alcohol begin to take hold. By the time she slowly runs her fingers down your left arm she has your undivided attention, and you’re thinking you’re not doing too bad, so you start to wonder what the rest of the night has in store.

Meanwhile, you fail to notice the intimidating looking dude staring at both of you 25 feet away at the other end of the bar because you’re so fixed in the moment.

Your date sees him. Immediately, her mood changes. She backs away. She pulls her hand back, and looks visibly scared as she leans in and whispers, “that’s the guy I was telling you about. That’s my ex-boyfriend. I keep telling him it’s over, but he doesn’t believe me. I’ve had to call the cops 10 times already.”

You’re now thinking, “ ex-boyfriend? What the hell is she talking about? She never said anything about an ex-boyfriend.”

You try and tell her not to worry, but nothing you say matters. She looks like a deer in headlights.

Just as you turn to take a look at this dude, she says, “we should probably go, he put my last date into the hospital for two weeks, and he’ll probably mess you up worse because you’re even smaller than he was.”

“What?!”

By now, you’ve turned to take a look at this guy, you both lock eyes, and you see him. He looks f*$&ing nuts. He’s standing 6’,4” 245 lbs., looks like a middle-line backer for the Dolphins, and he starts walking towards you. You have zero doubt that he could put you in the hospital.

In seconds, he takes four feet towards you, grabs a beer bottle, breaks it on the bar, and just when he looks like he’s about to lunge at you from 6-10 feet away, you take out your stainless steel .45 and shoot him twice in mid-section.  Everyone is screaming.

Your date calls out, “Johnnie!” And because she’s not talking about the scotch, and your name is Jason, you realize things just got complicated.  You’re standing over scary, 6’,4” 245 lbs Johnnie laying on the floor in a puddle of his own blood, and as your date is crying on the floor next to the guy that almost killed you with a broken beer bottle, you realize your date who helped put the fear of god in you may no longer be on your side.

Fast-forward…what has only been ten minutes feels like hours, and your date is still crying. The bar empties out, there are broken beer bottles and glass all over the floor as everyone left the scene. You’re waiting for the police.

As you wait, no one seems to have witnessed what you thought you saw with your own two eyes (Johnnie breaking a bottle over the bar and that he was just a few feet away from you when you had to make the hardest/scariest decision of your life).

Regardless, you think you’re good, because you haven’t done anything wrong. You were defending yourself. Your date told you about Johnnie’s crazy past, which affected what you reasonably believed when Johnnie broke the beer bottle over the bar and came at you. You see security cameras in the bar. You think you’re good because there’s no way the video would not support your claim of self-defense.

The cops arrive, take your gun, and start talking to everyone at the bar. They want to talk to you too. So, what do you do? You voluntarily go with the officers to the station. They say they just need you to help with the paperwork, and you’ll be on your way.

When you get to the station, because you’re convinced you were in the right and have nothing to fear, you talk to the detective assigned to the case about what happened.

You never thought about whether there were any cameras. You never thought about whether they worked, and, you never thought about whether you misremembered any of the details because you were convinced you had it right. So….

Scenario 1—what you did

You tell them your date told you about Johnnie’s violent past. You tell them that he grabbed a bottle, broke it over the bar, rushed through a crowd of people and was just three feet away from you when you shot him twice in the midsection. You tell them that you never saw Johnnie before that day, and that you were afraid for your life because of what your date told you and what you saw him do with the beer bottle.

The officers watch the video. They don’t see Johnnie break the beer bottle because the crowd blocked everything from the shoulder down. While the video shows Johnnie making a weird movement, they can’t tell whether he broke a bottle. In fact, to them, the video just shows some big dude walking normally in your direction, and they see you pull your stainless steel .45 pistol out of your holster, and fire four times into Johnnie. When crime scene goes to the scene to collect evidence, they don’t find Johnnie’s bottle, and because there was broken glass everywhere, they start to doubt Johnnie even had a bottle.

The detective takes notice of the fact that while you say Johnnie was approximately three feet away from you when you shot him, it looked like Johnnie was no closer than seven feet.  Last, because Johnnie survived, when the detective spoke to Johnnie, Johnnie stated that he was simply walking over to say hi to you and your date when he was shot for no reason. He also stated that he never broke his bottle on the bar to stab you in the neck, but that he fell after he was shot, which caused the bottle to break.

Your date isn’t very helpful either. She’s made the decision to get back with Johnnie, so she is unwilling to provide a statement in your defense.

Detective’s analysis

The detective has a decision to make as a result of what he sees on the video, heard from the witnesses, and what your inconsistent statements suggest. To the Detective, what you say sounds logical, but based on the video, and some of the discrepancies in witness testimony he doesn’t want to risk letting a killer go free, so he arrests you and lets the State Attorney’s office decide whether to file charges because: 1) you said Johnnie was three feet away when it looked like more on the video, 2) you said you shot Johnnie only twice, when it was far more, 3) you said Johnnie broke a bottle on the bar, but they have no evidence of that, and 4) Johnnie says he was shot unprovoked.

Because you made a statement, and that statement was inconsistent with some of the other evidence, the detective has no choice but to look suspiciously on your version of events. If you stayed silent, perhaps he could have rationalized certain events in your favor. But now, due to the inconsistencies in your statement, the detective may think you lied to justify your use of deadly force.

Scenario 2—What you should have done

The Detective offers you something to drink and asks you to tell him what happened. You ask the officer whether you’re under arrest, and he says no, but he just wants to get your side of the story. You then tell him that due to the gravity of the situation, you do not feel comfortable speaking to him without an attorney. He tries to convince you otherwise, but you say, “Detective, I appreciate you’re just trying to help, and get to the bottom of everything, but I’d rather speak to my attorney before I do anything else.”

As a result, there are no inconsistencies. No one can twist your interpretation of events regarding Johnnie’s distance or the number of shots you fired. No one can say that the reason you said it was a shorter distance was because you were trying to justify your actions when you really knew you were in the wrong and never should have shot Johnnie.  No one can say that you were lying about the distance because you wanted to make it seem like you were the victim when you really were not.

Conclusion

While in both scenarios you have an argument for self-defense, scenario 2 is far stronger than scenario 1 because you kept your mouth shut, and respectfully asked for an attorney. When you can control the outcome, do not allow your statement to the police be a basis of probable cause to arrest you or what the government uses to try and convict you.  When you make a statement, you risk it being contradicted or misinterpreted. Do not gamble with your future. Do not gamble with your freedom. Keep your mouth shut. Get an attorney, and let your attorney be your voice to protect you.

* This article is not a self-defense article. It is simply meant to highlight the risks you take when speaking to the police about your involvement in an event without consulting an attorney. Accordingly, you should keep in mind Florida Statutes 790.06(12)(a) states it is unlawful “to openly carry a handgun or carry a concealed weapon or firearm into any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which portion of the establishment is primarily devoted to such purpose.” 

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In the last few weeks we’ve seen the violent “Unite the Right” rally in Charlottesville, a “free speech” rally in Boston, and similar rallies in San Francisco and Berkeley today. That’s got talking heads throwing around the phrases “First Amendment” and “free speech.”

This isn’t a political opinion piece; you can find those elsewhere. Instead, I want to talk about the limit of the 1st Amendment: when can you be thrown in jail and charged with a crime for nothing more than the words that come out of your mouth.

FREE SPEECH DOESN’T DISCRIMINATE

            The 1st Amendment gives people in America the right to say whatever is on their mind. You can shout from a mountaintop that you love puppies, flowers, and ice cream. That’s fine. You can stand on that same mountaintop in KKK robes and shout that all immigrants should be deported and that all people of color jailed. The law says both are okay.

Morally different, legally equivalent.

WHEN TALKING IS ILLEGAL

The 1st Amendment doesn’t protect all speech. There are situations where you can go to jail just for words spilling out of your mouth. In Florida, if the police arrest you just for talking, the crime you’re most likely to be charged with is Breach of Peace, aka Disorderly Conduct.[1] That law makes it illegal to “corrupt the public morals,” “outrage the sense of public decency,” or “affect the peace and quiet of persons.”

After decades of police arresting people for disorderly conduct, Florida courts have made it real hard to convict people of it based on words alone. Here’s a few ways someone can be convicted of disorderly conduct just for the hot air coming out of their mouth:

  1. Shouting “Fire!” in a crowded theater.

This is basic, don’t be a jerk … unless there’s actually a fire. Then you should definitely shout fire, call 911, and get away from the fire.

  1. Inciting a crowd to engage in an immediate breach of peace.

Basically, if you’re calling for a crowd to breach the peace or do violence, and you’re such a persuasive speaker that the crowd responds, that’ll be a breach of the peace.[2] That brings to mind scenes from recent campaign rallies.

  1. Using “Fighting Words”

Fighting words are things you say to somebody that would cause the average person to fight.[3] They have to be egregiously terrible words too because saying, “fuck you, pussy cracker”[4] to a police officer and calling a cop a “motherfucker”[5] aren’t considered fighting words.

            That means you can tell your favorite “your mama” joke without fear of getting arrested.

THE LAW OF THE STREET

Everything that I’ve written about so far is about the law as it’s written by the Florida Congress and interpreted by the Florida Courts. You should take notice that neither your Congresswoman nor Appellate Judges are likely to be hanging around when someone’s insulting a police officer. On the street, police officers have the power. So if you decide to start insulting police officers, remember that they can arrest you and let the lawyers sort it out.[6]

Being polite and respectful to police is in your own self-interest. Save your favorite “your mama” joke for your friends.

If you liked this article, have any comments, or have any questions, let us know in the comments. Also, if there are any topics that you want us to cover in a blog post, let us know in the comments, on Twitter, or by email.

[1] Florida Statute § 877.03

[2] That brings to mind scenes from certain recent campaign rallies.

[3] Clanton v. State, 357 So. 2d 455 (2d DCA 1978)

[4] C.P. v. State, 644 So.2d 600 (2nd DCA 1994)

[5] C.L.B. v. State, 689 So.2d 1171 (2nd DCA 1997)

[6] That’s what I get paid to do.

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It is unfortunately very easy to be arrested in Miami Dade County based on misdemeanor allegations of domestic violence.  All it takes for the police to take you away is for your significant other (or even ex-significant other) to say that you have hit them, pushed them, or threatened to do harm to them.

What is different about DV?

Unlike typical charges where a person who is arrested can simply bond out to a standard bond without having to wait in jail to see the judge, Florida law (Florida Statute 741.2901(3)) requires that a person arrested for a domestic violence charge be held in custody until brought before the court for a bail determination.  This means that you will spend up to two days in jail waiting to be brought before the judge to get a bond.  For misdemeanor domestic violence charges, the bond hearings take place at the Lawson E. Thomas Courthouse Center located at 175 NW 1st Ave, Miami Florida 33128.

You get before a Judge, then what?

Once you appear before the judge for bail determination the prosecutor will routinely argue that you should be held on a monetary bond and will object to any other form of pre-trial release.  Your lawyer can ask the judge to release you on a kind of release called “pre-trial services.”  If you’ve previously been accused of domestic violence, the judge will likely require you to post a money bond.  Money bonds can range from $1,500, which is the standard for a misdemeanor domestic violence battery, to anything in the $50,000+ range with house arrest.  The amount will depend on who the judge is, whether you’ve been previously accused of domestic violence, and what the allegations for which you were arrested are.

The Stay Away Order

During this hearing the judge will also issue a domestic violence stay away order. The stay away order prohibits the person arrested from having any kind of contact with the alleged victim in the case.  The order also prohibits the person arrested from coming within 500 feet of the alleged victim’s home, workplace, and car. A violation of this “stay away order” is a misdemeanor of the first degree in Florida and can get you up to 364 days in the county jail per charge. (Regardless of whether the underlying allegations are true).  The stay away order can also be used by the prosecution to make a misdemeanor stalking case into a felony case.

If the person who is accusing you of domestic violence is in court and wants to have contact with you he or she can ask the judge to have that order lifted.  These orders are usually never lifted during this hearing but most judges will reconsider lifting them a couple of weeks after the incident once the incident is not so recent.

Note: This is a very easy way for someone who lives in your house to evict you. It doesn’t matter if the person is paying rent, owns the house, etc, if the person goes to the cops and says you committed domestic violence against them they will get to stay in your home while you have to stay 500 feet or more away. No questions asked.  You can start eviction proceedings of your own once you get out of jail but that process, unlike falsely accusing somebody of committing DV, takes time.

Once this first appearance hearing is done you will get a new court date for arraignment.  At this hearing the prosecutor will announce whether the State is bringing formal charges against you.  If the prosecution files charges against you, your lawyer will receive discovery, and ask for a trial date.  Trial dates are usually set thirty to forty five days from arraignment.  Between arraignment and trial your lawyer should conduct discovery, investigate the case, and prepare the case for trial.

If you are currently facing a troubling domestic violence charge and would like some guidance navigating the system feel free to contact us.  We are available to assist you with getting through this unfortunate situation.

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