Author: Cam Cornish

About Cam Cornish

I'm a criminal defense lawyer, a personal injury plaintiff attorney, and a trial lawyer. Born in Miami, FL. I was raised as the only gringo in the Cuban family my Mom married into. In my off time I kiteboard, play guitar, sing (badly), travel, and make travel videos.

One of the lessons I have had to learn as a civil plaintiff’s attorney is how difficult it can be to collect money from defendants … even after they signed a written settlement agreement. My goal in this article is teach you how to properly close a lawsuit (pursuant to a settlement) so that you can easily file a motion and have the judge enforce the settlement.

Jurisdiction

If you want the judge to be able to enforce the judgment, you must close the case in a way where the judge retains jurisdiction. If the Plaintiff dismisses his/her own case with prejudice (as many settlement agreements demand), then the judge forever loses jurisdiction on that case and CANNOT enforce that case’s settlement. MCR Funding v. CMG Funding Corp., 771 So.2d 32 (4th DCA 2000); Dandar v. Church of Scientology Flag Service Organization, 190 So.3d 1100 (2nd DCA 2016). So, DO NOT dismiss your own case with prejudice unless you want to have to file a whole other lawsuit (breach of contract) to enforce your settlement.

Here is the simplest and easiest way to ensure that the judge retains jurisdiction to enforce the settlement:

  1. Have the judge enter an order of dismissal.
  2. Include the following language in the order of dismissal “This Court reserves jurisdiction to enforce the terms of the settlement agreement.” Dandar, 190 So.3d 1100.

Here is a more complicated (and therefore less desirable) way to ensure that the judge retains jurisdiction to enforce the settlement follows:

  1. Bring your settlement agreement to the judge for her to review.
  2. Have the judge enter an order of dismissal.
  3. Write the order of dismissal in a manner that incorporates the settlement agreement into the order. MCR Funding, 771 So.2d 32;

Motion to Enforce Settlement

The motion itself is fairly simple and straightforward. You need to make sure you include the following three (3) items in your request for relief: (1) enforce the settlement agreement, (2) movant interest, and (3) attorney’s fees associated with bringing the motion to enforce (assuming your settlement agreement allows for attorney’s fees to enforce the agreement).

The body of the motion can be pretty short. You must state (1) what you and the defendant agreed to (the part the defendant breached) and (2) that the defendant breached your agreement and how the defendant breached the agreement.

I like to include a Statement of Facts that includes a timeline of the end of the case, the settlement agreement, and the breach. I make sure to include dates that I contacted the defendant to ask them to perform their portion of the contract for two reasons: (1) because professional courtesy demands contacting opposing counsel before getting the court involved (it’s always possible that opposing counsel made a good faith mistake) and (2) because, if it does go to the judge, you look good because your were being courteous and professional.

Illustration

I recently went through a situation where the defendant and my client agreed to settle a case for a certain amount of money. We announced it in open court. The judge entered an order dismissing the case with prejudice. And then we waited for the defendant to pay us. And we waited. And waited.

The settlement agreement called for us (the Plaintiff) to dismiss the case with prejudice once the settlement agreement was executed. However, the judge became impatient and entered the order of dismissal on her own initiative. Luckily for us, her order specifically reserved jurisdiction to enforce the terms of the settlement agreement. So, after an inordinate amount of time and many unreturned emails and phone calls, we emailed the defendant our motion to enforce and let them know we would file it within a week if we did not have checks in hand. And wouldn’t you know it, the check miraculously appeared after three (3) days.

All in all, it took a number of months from the day we announced in open court that we had settled the case to the day that the defendant paid what they agreed to pay.  I had always thought that, as a lawyer, the legal work was the most difficult part of the job. I have since learned that collecting money from defendants can be even more difficult.

In conclusion, if you are going to dismiss your case pursuant to a settlement agreement, have the judge enter an order of dismissal. Make sure that order of dismissal specifically reserves jurisdiction to enforce the settlement agreement. And be courteous to opposing counsel. Chances are you will be able to work the issue out without having to involve the court.

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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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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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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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Most people want to interact with the police for as short a time as possible. But it’s hard to walk away from a police officer who calls you over to him if you don’t know exactly what power they have over you. In this post, we’re going to talk about what your rights are when the police approach you in a public place and, if you want to, how you can legally walk away from the police.

THE BASICS

Everyone in the U.S. of A. has the right to go about their lives without the police unreasonably stopping, searching, or seizing them.[1] However, police officers often use their badge, their uniform, and general police demeanor to make you assume that you have to do whatever they say.

Often, you don’t need to speak to police officers at all. But it’s important to know when you must stop and speak to them because it can be a crime to walk away from police who are legally stopping or arresting you.

So let’s talk about how you can figure out whether or not you’re legally required to stop and talk to a police officer.

THE QUESTION

“Officer, am I free to go?”

That’s the simple question you can ask the police officer to find out if you can legally walk away from him. If the officer answers yes, feel free to walk away and go about your life.

If the answer is no, then the police officer is either stopping you for what’s called an “investigatory stop”[2] or he’s stopping you to arrest you. Either way, your best move is to remain calm, be respectful, and refuse to speak further with the officer without a lawyer present.

THE RULES

Here are a few rules to follow when stopped by a police officer:

  1. Stop When a Police Officer Tells you to Stop

Remember that walking or running away from a police officer who is legally stopping you is a crime. So, since you don’t know what’s happening when a police officer tells you to stop, it’s best to stop in order to take stock of the situation.

You’re better off safe than sorry (or in jail).

  1. Be Courteous

You are always better off being courteous to police officers for two reasons: 1) they are in a position of power over you, and 2) police officers are just people doing a job. It doesn’t matter if the police officer is following the law or violating it, on the street the police officer has the power. You may win in court, but a court victory after spending time in jail is a cold comfort.

  1. Ask if You are Free to Go

Asking this question immediately tells the police officer that you know your rights and you’re not going to do whatever he wants just because he’s wearing a badge.

If he answers yes, then he is letting you know that he has no legal basis to detain, stop, or hold you there. If he tells you that you are not free to go, he’s letting you know that you are a suspect in a crime and he’s out to get you. At that point, it’s in your best interest to explain to him that you refuse to speak to him without an attorney present.

  1. Make sure you get a yes or no answer.

Police officers often evade the “free to go” question. They usually change the subject or ask you another question like, “If you have nothing to hide, why don’t you answer my question?”

It makes sense from the officer’s point of view. They want to gather information from you. If you know enough to ask if you’re free to go and they answer yes, then they know that you’re likely to leave. So they delay in the hope that you will forget about your question or be too intimidated to ask it again. Don’t forget and don’t be intimidated. Remember, police officers are there to protect and serve your community.

Make sure to get a straight-forward answer to your question. Are you free to go?

  1. If the Officer Says You’re Free to Go … GO!

Lastly, if you don’t want to speak to the officer and the officer answers that you are free to go, then get on out of there. No reason to hang around a place you don’t want to be.

THE SCENARIO

Let’s say you’re walking down the street. You have just enough time to grab a cup of coffee before getting into work. An officer parked on the side of the road says, “Hey, you, come here.”

You walk over to his car. He says, “What are you doing around here? Let me see your ID.”

You are courteous, so you say, “Officer, I understand you’re just doing your job but I have to get to work. Am I free to go?”

Instead of answering, the officer says, “Somebody just broke into that store right there. He was wearing the same color shirt you are. What were you doing ten minutes ago?”

You realize that the officer didn’t answer your question, so you ask him again, “Officer, I understand that you’re just doing your job. Am I free to go?”

The officer starts to get frustrated and says, “If you have nothing to hide, why won’t you sit in my car with me and answer my questions.”

You notice he still hasn’t answered your question. So you ask him again, “Officer, I have to get to work. Am I free to go?”

This time, the officer says, “Yes, you’re free to go.”

You say, “Thanks, have a good day.” And you walk away. You get your coffee, and you make it to work on time.

THE CONCLUSION

And that’s how you can legally walk away from the police.

What’s that, dear reader? You want me to come back? I’m sorry but I have work to do. That doesn’t matter to you?

Answer me this, dear reader: Am I free to go?

[1] United States Constitution 4th Amendment

[2] I’ll explain investigatory stops in another blog post.

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Like most lawyers, when I started taking depositions … I was bad at it. What’s worse is, I didn’t realize they were bad until I was in trial with them. During cross-examination, I’d go to impeach the witness, only to realize that I had asked a confusing question or allowed the witness to ramble and give long, convoluted answers. Both make for bad impeachments.

The more cases I tried, the more my deposition practice improved, both by literal trial and error and gathering tips from fellow trial attorneys.

Now, in depositions, I ask Bullet Point Questions.

Here’s how you use Bullet Point Questions:

Step One:

Ask the witness an Open-Ended Question.

  • If the witness gives a short concise answer that consists of only one fact or bullet point, move on to your next question.
  • If the witness’ answer contains more than one fact or bullet point, go to the second step.

Step Two:

Break down the witness’ answer into separate Leading Questions that contain one fact or Bullet point per Leading Question

Example:

Q:         What color was Billy’s jacket?

A:         Well, it was raining that night, so I couldn’t see when I first pulled up. But when I got closer, I could see that Billy’s friend was smoking the marijuana Billy had sold to him. And I was surprised to see Billy in a green jacket because he normally wears black when he comes over, since that’s what he wears to steal from orphanages.

This witness gave us an answer that has multiple facts or bullet points. That makes it a bad answer to impeach him/her with in trial. So, to clean it up and make it useful for us, we break down that answer into multiple, single bullet point, leading questions. Let’s see how:

Q:         Okay, let’s break that down. It was raining that night?

A:         Yes.

Q:         You say you saw Billy’s friend smoking marijuana?

A:         Yes.

Q:         You say that Billy sold him the marijuana?

A:         Yes.

Q:         Billy was wearing a green jacket?

A:         Yes.

Boom. Now you have the answer you want in a clear yes or no format.

            NOTE

When I begin to ask Bullet Point Questions, I often explicitly tell the witness what I’m about to do: “Okay, let’s break that answer down.” Doing so allows the witness to understand what’s about to happen and therefore be more cooperative and willing to answer the leading questions with a simple “yes” or “no.”

You will also notice that I asked some leading questions that were seemingly harmful to my client before I asked the question that I actually wanted answered. I did so because witnesses become less likely to cooperate with you when they feel that you disregard what they say. So, I repeat their own answer to them in the form of Bullet Point Questions. It makes a witness comfortable and more cooperative.  It’s a form of Mirroring.

In addition, not all deposition testimony comes out at trial (unless it is a trial deposition in civil cases), so do not shy away from bad facts, instead, explore them and gather information … one Bullet Point Question at a time.

Example:

Here’s an example of how failing to use the Bullet Points Method can hurt you, your client, and your case.

Let’s say you’re in trial. And in this trial, the color of your client’s car is pivotal to your case. Let’s say that the color is important because the crime was committed in a Blood Red car and your client’s car is Lime Green.

Now, let’s say that a witness named Lyin Lenny takes the stand and he has it out for your client. Lyin Lenny testifies on direct examination, contrary to his deposition testimony, that your client’s car is Blood Red. So you stand up, fire in your belly, about to start your cross-examination with an impeachment (the most fun way to start), and to show the jury that Lyin Lenny is lyin’.

You walk past your client, past the table, past the podium, and you look down at your deposition transcript. Here’s the quote that you have to impeach Lyin Lenny:

Q:         Lyin Lenny, what color is my client’s car?

A:         Well, your client is a bad dude who runs with the Aryan Nation. I try to stay away from him. But I’ve seen him patrolling their turf in his car.  So, to answer your question, a couple months ago, when your client got out of prison for the second time, he got himself a lime green car.

That is a terrible answer to impeach Lyin Lenny with. If you do impeach him with that, many judges will require you to read Lyin Lenny’s whole answer. Even if Lyin Lenny’s allegations are total lies, they significantly damage your case as soon as the jury hears them.

And all because you failed to ask your Bullet Point Questions.

Compare the deposition transcript you have to impeach Lyin Lenny with when you use the Bullet Point Method:

Q:         Lyin Lenny, what color is my client’s car?

A:         Well, your client is a bad dude who runs with the Aryan Nation. I try to stay away from him. But I’ve seen him patrolling their turf in his car.  So, to answer your question, a couple months ago, when your client got out of prison for the second time, he got himself a lime green car.

Q:         Okay, let’s break that down. You say that my client is in the Aryan nation?

A:         I can’t say that for sure. I just know he hangs out with white guys who have short haircuts.

Q:         My client’s car is lime green?

A:         Yeah, a couple months ago, after getting out of prison, he got the lime green car.

Q:         You say that my client got out of prison recently?

A:         Yes, for the second time.

Q:         My client’s car is lime green?

A:         Yes

Notice Lyin Lenny again answered my question on the car’s color with a multiple bullet point answer. So, I ask Lyin Lenny a Bullet Point Question about my client going to prison because I know Lyin Lenny wants to broadcast that my client went to prison twice. Once he answers that question, he’s satisfied his need to vilify my client. Therefore, when I ask him if my client’s car is lime green again, he’s willing to answer it with a single word, “Yes.”

There you have it, fellow trial attorneys. Taking better depositions results in better transcripts. A cleaner and more effective trial follows.

Ask better questions in deposition with the Bullet Point Method.

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