Month: September 2017

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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