As it is with any type of litigation, there are certain risks associated when you pursue a Florida personal injury lawsuit. The good news is these risks are significantly mitigated by:
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- Hiring a skilled personal injury lawyer with experience in successfully handling cases like yours.
- Contingency fee arrangements that do not require plaintiff attorney’s fees to be paid upfront – or at all – unless you win.
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An experienced attorney can provide you with an informed opinion about the strength and value of your injury case, giving you a good sense of whether it is better to accept a settlement offer or proceed to trial. The contingency fee arrangement is a safety net too. Not only because you are off-the-hook for your attorney’s fees if you do not win, but it also creates a clear incentive for your injury lawyer to be frank with you about your chances of prevailing – and the best way to do it.
That said, our Fort Myers injury attorneys are always straightforward with our clients about some of the potential pitfalls of personal injury litigation. These are general risks, though some may be more relevant for certain types of cases (i.e., auto accidents, medical malpractice, premises liability, claims against government entities, etc.).
Time and Money Costs of Litigation
Chances are, your South Florida personal injury lawsuit will not go to trial. In fact, it may not even make it to court. That is because they can be better settled through negotiations between your Fort Myers injury attorney and the defendant’s insurance company. This is especially true for auto accident claims.
If your case does not settle, you will be faced with deciding whether to take your claim to court. In this situation, your injury lawyer will need to prove liability (legal responsibility) of the defendant as well as damages (the full extent of your losses). This sounds simple, but it can be both time-consuming and expensive, especially if doing so necessitates hiring an expert witness. Some cases, like medical malpractice claims, require an expert witness to testify. Expert witnesses (physicians, accident reconstruction experts, biomechanical engineers, etc.) charge an hourly fee for their analysis and presentation of it. Many of these costs are advanced by your legal team and only reimbursed when you win, but your lawyer should talk to you about this specifically.
The discovery process will likely require interrogatories (written questions answered under oath), production of numerous documents (medical records, etc.), requests for admissions to certain facts, and depositions. Coordinating times for depositions, hearings, etc. will require some time as well.
Motions to Dismiss/Grant of Summary Judgment
If the court grants a defense motion to dismiss, it effectively ends the claim. If the motion is filed without prejudice, the plaintiff may refile after correcting the error that led to the dismissal. A defense motion for summary judgment, on the other hand, is an assertion that the defendant should prevail as a matter of law. This decision can be appealed, but you will want to weigh your odds carefully.
Some of the reasons cases are dismissed or decided unfavorably upon summary judgment:
- Statute of limitations. Per F.S. 95.11, you must generally file a Florida personal injury lawsuit within four years. There are some exceptions. Medical malpractice cases, for instance, need to be filed within two years of the cause of action. Same for wrongful death. Some injury claims can be filed after four years, but those circumstances are limited. If the court finds that a case is time-barred, it is filed past the deadline, and the plaintiff will not be allowed to pursue compensation – no matter how serious their injuries.
- Jurisdiction. It is imperative to make sure the court in which you are filing the case has the proper jurisdictional authority over the people involved and the subject matter at issue. The most common jurisdictional issue is whether the matter should be filed in a state or federal court. In some instances, personal injury claims (specifically, hotel/casino injuries on tribal lands) may even be tribal matters.
- Venue. A Florida personal injury lawsuit must be filed in the right county. Just because you are injured in Fort Myers does not necessarily mean the lawsuit should be filed in Lee County. Several elements must be taken into consideration, and you may have more than one option.
- Parties. Are you suing the right parties? Or all the right people? This is a question that can get especially tricky in cases like trucking accidents or nursing home abuse – because there are often numerous companies and various professional standards involved. If a defendant can show they were not legally responsible, the judge may grant a motion to dismiss where that defendant is concerned.
Defendant’s Attorney’s Fees in a Florida Personal Injury Lawsuit
Another potential risk with an injury lawsuit is the possibility of the plaintiff being ordered to pay the defendant’s attorney’s fees. F.S. 768.79 holds that if the defendant offers to settle and the plaintiff does not accept within 30 days, pushing the case to a trial wherein the plaintiff does NOT receive at least 75 percent of the value of that settlement offer at trial, then the plaintiff may be required to pay the defendant’s legal fees. For example, let us say the defendant offers to settle for $100,000. If the plaintiff declines and the jury only awards $50,000, the defendant may seek to have attorney’s fees and costs covered from the date of the settlement offer. That would be deducted from the final award. An experienced lawyer can often help you avoid this by providing an accurate valuation of your case.
Comparative Negligence
Florida has a relatively generous statute concerning comparative negligence (which is the plaintiff’s share of the fault). F.S. 768.81 holds that your final damage award can be reduced by a percentage of your own fault – up to 99 percent.
So let’s say you sue another driver after a crash. At trial, the jury finds the other driver was 75 percent at fault, and you were 25 percent at fault. Your total damages were $100,000. Because of comparative fault, your damage award would be reduced to $75,000. That is better than other states, though. Some of which will not let you recover at all if you are more than 50 percent at fault or if you are even 1 percent at-fault. Regardless, our goal is to minimize any finding of comparative fault as much as possible.
All of this may seem a bit overwhelming, but we like our clients to be informed going into the process. Some of these will not be a concern at all in your case. Other elements may require some careful consideration. Consulting with a qualified injury lawyer before accepting or turning down a settlement is key to your financial future.
If you are injured in Fort Myers, Naples or Key West, contact our injury attorneys at The Garvin Firm at 800.977.7017 for a free initial consultation.
Additional Resources:
Limitations other than for the recovery of real property, F.S. 95.11
Personal Injury Claims, American Bar Association
More Blog Entries:
Pain and Suffering Damages Awarded in Fort Myers Injury Lawsuit, July 1, 2020, South Florida Personal Injury Lawsuit Blog