As further evidence to prospective employers of how I tried to use my time wisely this summer, here are some of my notes from Florida Motor Vehicle No-Fault Law: Personal Injury Protection (P.I.P.) 2009-2010 edition by Russel Lazega. Like in my previous entry, most of the notes that I selected to type are questions to which I do not know the answer.
This book in large part outlines the Florida No-Fault Statute: 627.736. The Table of Contents at the beginning of each chapter provided a good outline of the statute. As this book says, I will have to read this statute again and again to gain competency in dealing with it.
Chapter 1 Introduction to No-Fault and Definitions pgs.1-25.
-p.4 I do not understand the statement that a person is allowed one free accident before being compelled to buy liability coverage.
-p.11 $10,000 coverage for property damage- Is this for your own property or for the 3rd party's that you damaged? Answer p.62. It is liability coverage.
-p.20 PIP is primary coverage in an auto accident. But other health insurance may cover the deductible. Submit claims to both carriers. See p.88.
-p.24 What is the financial responsibility law?
Chapter 2 The No-Fault Act: Required Coverages and Deductibles 627.736(2) & 627.734 pgs.27-64
-p.30 How do you divide the $10K worth of coverage? Answer p.61 and p.103-104.
-p.45 I need to become familiar with Medicare Parts A & B. See p.309.
-p.48 The statute refers to forms of notice approved by the office. What is "the office?" Answer, bottom of p.115? Centers for Medicare and Medicaid Services?
-p.63 "Nolle prossed" means "will no further prosecute."
Chapter 3 Limitation of Insured's Right to Recover Special Damages in Tort Claims: Collateral Sources and Property Damage 627.736(3) pgs.65-85
-p.69 Be aware of the use of post trial discovery.
-p.75 I need to research what the 2 year proof of insurance period and the 3 year proof of financial responsibility means.
-p.82 Does a right of subrogation exist against a non-owner of a commercial vehicle?
-p.84 Can you bring up the existence of insurance in a non-medical malpractice negligence case? I think not. It is not relevant. See Sawaya's treatise.
Chapter 4 The No-Fault Act Benefits; When Due, Interest; and Required Coverages 627.736(4) pgs.87-110.
-p.89 Who covers when the insurance company pays under the wrong priority? Arguably, the insurer should pay. See p.316.
-p.91 How do you charge attorney's fees for failure to pay PIP when you work on a contingency basis? Answer is the one-way street provision?
-p.99 What does a PIP log look like?
-p.105 I do not understand the case note. Interest payments are not counted as part of the $10,000 in PIP payments.
-p.108 What is "contempt jurisdiction?"
Chapter 5 Charges for Treatment of Injured Persons 627.736(5) pgs.111-166
-p.120 See www.cms.hhs.gov for the Medicare fee schedule.
-p.121 What is the HCFA form?
-p.137 What is a CMS 1500? Or a UB92 form? See p.162 for some help with form names.
-p.142 Are charges different for medical services after the gap period at the end of 2007? See p.143 and consult Chapt. 440 Fla. Stat.
-p.152 Who provides notice of the insured's rights? The insurer to the provider? When is this done?
-p.155 Policy on why hospital ERs have different billing requirements from medical providers.
-p.161-162 Arbitration is useful for the defense. Non-binding arbitration can have serious consequences once judgment is entered.
-p.162 "One way attorney's fees provision." See p.211. In a judgement against an insurer, the trial court should enter a ruling for attorney's fees.
Chapter 6 Discovery of Facts About an Injured Person; Disputes 627.736(6) pgs.167-188.
-p.169 The statute makes mention of a form approved by the department. What is "the department?"
-p.175 This book does not discuss federal law about physician/patient privilege.
-p.179-180 Is there a difference between a PIP log and a PIP payout log? Answer, probably not. See bottom of p.180.
Chapter 7 Examination of Persons- Independent Medical Examinations and Examinations Under Oath 627.736(7) p.189-208
-p.193 When a policy is renewed, that should change the effective date of the policy, correct? Answer, p.392. Yes. The renewal is like forming a new contract.
-p.205 What is the insurance code? What are the remedies for violating it? See pgs.251-252 for help.
-p.206 The examination under oath requirement is not statutory, so look at the policy provisions carefully.
Chapter 8 Attorney's Fees 627.736(8) pgs.209-229
-p.213 What is an attorney's fees multiplier? See p.217 for details. The trial court decides what the witness fees should be. Make this clear in the contract with your expert witness.
-p.221 What is an "out of the box" PIP suit?
-p.225 What is the effect of a second offer on the ramifications of rejecting the first offer?
-p.226 What is the difference between an offer of judgment and an offer of settlement? What are the pros and cons of utilizing each?
Chapter 9 Preferred Provider Agreements 627.736(9) pgs.231-235
-p.231 I do not understand why an insurer would choose to pay more than required by the statute, or why an insurer would waive or reduce the deductible.
-p.232 I do not understand the 2nd paragraph. PPO plan users can treat wherever they wish, too. And if a PIP claimant uses the network, then the reduced rate will mean more of the 10k to go around, right?
Chapter 10 Pre-Suit Demand Letter 627.736(10) pgs.237-249
-See the chapter outline.
Chapter 11 Insurer's Failure to Pay Claims pgs.251-252.
-Are these provisions part of the insurance code?
Chapter 12 Civil Actions for Insurance Fraud 627.736(12) pgs.253-297.
-p.254 I need more detail on the differences between compensatory and consequential damages. Does compensatory automatically include consequential damages?
-p.255 Are chiropractic and dental services reimbursable under PIP? Answer, p.302. Yes.
-p.255 What is a grand jury report?
-See pgs. 257,258,268 It is only a crime to solicit PIP cases with the intent to defraud. It still may be an ethics violation to solicit legitimate claims.
Chapter 13 Looking to the Future; Possible Increase of the PIP Coverage and Effect of the Repeal and then Re-Adoption of PIP pgs.299-310.
-p.300 How can you choose not to carry PIP coverage?
-p.306 Insurers may reimburse at an amount less than billed. So what happens to the remainder of the bill? Answer, p.308(5). Providers may not attempt to collect from the insured except for amounts not covered due to coinsurance amount or to maximum policy limits.
-p.310 Agreements regarding secure electronic data transfer. This does not apply to submission of documents to the court, right?
Chapter 14 Assignment of Benefits pgs.311-324.
-p.313 Why cannot one assign benefits after suit has been filed for arbitration? See p.314. Re-assignment is a litigation strategy as to who would be the better plaintiff.
-p.322 What is the difference between a written assignment and an equitable assignment?
Chapter 15 Litigation Procedure, Settlement and Appeals p.325-353
-p.331. See p. 338. Ask for attorney's fees in the complaint.
-p.332 Insurers cannot contract to shorten the statute of limitations because Florida statutes are considered part of the insurance contract, right?
-p.337 What does it mean to be issued a 20-day summons? p.339 The summons does not apply to small claims cases.
-p.341 Who is "the department?" The Department of Insurance?
-p.347 Who pays for copies of the IME physicians records? Is it as simple as whomever the requesting party is?
-p.348 What are these terms in the Practitioner's Note?
-p.352 How do you find unpublished circuit court appeals decisions?
Chapter 16 Cancellation of Coverage 627.736(9) pgs.355-378.
-p.361 Class actions have a whole different set of rules.
-p.371 What happens to the replacement policy when the department sides with the insured and orders a reinstatement of the old policy? Just a refund of the premium from the new insurer?
-p.377 What is "the commission?" How is the commission different from "the office" and "the department" mentioned throughout the statute and this book. What are their separate roles and responsibilities?
Chapter 17 Policy Construction and Interpretation pgs.379-395
-p.380 Bad faith actions are not subject to declaratory judgments, right? They are separate COAs and are the fact finder, right?
-p.393 I need more information on Florida's borrowing statute.
Chapter 18 Rehabilitation, Liquidation, and the Florida Insurance Guaranty Association pgs.397-412.
-See the Table of Contents at the beginning of the chapter.
Chapter 19 Crime Victim Compensation pgs.413-417
-p.414 Must there be a conviction before a "crime" has occurred? The form on p.429 does not ask for conviction information that I see.
-p.414 It appears from Chapter 20 that an application for the Crime Victims Compensation Act must be submitted to the Office of the Attorney General, yet the statute says "the department." Who needs to see this application?
Chapter 20 Forms pgs.419-448.
-p.448 What is compounding the consumer price index, as opposed to adjusting it annually?
For this entire book, it is good to go back and read the Practitioner's Notes.
Hopefully, my next entry will be more interesting.
Nathan Marshburn
Showing posts with label Personal Injury Law. Show all posts
Showing posts with label Personal Injury Law. Show all posts
Saturday, August 7, 2010
Sunday, August 1, 2010
Summer Summary
This will be a mundane entry. I am going to use this space to type a few of my notes from Florida Personal Injury Law and Practice with Wrongful Death Actions 2009-2010 Edition by Judge Thomas Sawaya. I already knew some of the material in this treatise from other law school classes. What I am recording here are things I did not know prior to reading Judge Sawaya's book. Many of these notes are simply questions. Most of the questions I need help in answering, though a few I could answer through more research.
Anyway, if a prospective employer stumbles across my blog, this entry will serve to show that, despite not being employed this summer, I tried to make good use of my time to become proficient in personal injury law. In another entry, I will post some notes from Florida Motor Vehicle No-Fault Law: Personal Injury Protection 2009-2010 edition by Russel Lazega.
Chapter 1 Negligence: Basic Concepts and Duty, pgs.1-81.
-Know the difference between negligence per se, prima facie evidence of negligence, and strict liability. Of these, strict liability is the strongest for the plaintiff. If strict liability applies, you do not have to prove proximate causation- only actual causation and damages. I am still not totally clear on the difference between negligence per se and prima facie evidence. I think negligence per se is stronger. It usually comes up when the defendant has violated a statute. It means negligence has occurred, but it is not necessarily actionable negligence. The plaintiff must still prove that 1) the plaintiff belongs to the class that the statute was intended to protect 2) that the plaintiff suffered injury of the type the statute was designed to prevent 3) violation of the statute was the proximate cause of the injury. Prima facie evidence of negligence creates a rebuttable presumption of negligence. An example might be violation of a traffic ordinance. The defendant may still show that no negligence at all occurred, though.
Chapter 2 Standard of Care, pgs.83-130.
-Know the difference between slight negligence, ordinary negligence, gross negligence, and culpable negligence. The slight negligence standard usually applies to common carriers.
-p.122 Be aware of the sudden emergency doctrine.
-Children are responsible for their own torts, though they have their own separate standard of care (keep in mind negligent supervision COA against parents). A child under six is considered to be incapable of negligence.
Chapter 3 Causation pgs.131-200.
-Know the difference between a concurring cause and an intervening cause and the ramifications. Intervening causes can be a complete bar to recovery, and they are often decided as a matter of law at the summary judgment phase.
-p.187 Are motions for directed verdict heard outside the presence of the jury?
-p.196 How free are we as attorneys to argue our own jury instructions in closing argument?
-Be aware of the unavoidable accident doctrine. This can be a complete bar to recovery.
-Be aware of the rescue doctrine. Police and firemen can recover for injuries not reasonably foreseeable in the line of duty. They can also recover for injuries sustained from going above and beyond the call of duty.
Chapter 4 Imputed Negligence pgs. 201-283.
-Generally, you can not impute the negligence of an independent contractor to the employer.
-Are the participants in a partnership, joint venture, or joint enterprise jointly and severally liable? Probably yes. See p.244.
-One spouse is not liable for the torts of the other spouse.
-p.260 See exceptions to the general rule that a parent is not liable for the torts of the child.
-When an employee commits an intentional tort, think about negligent hiring and retention as a COA.
Chapter 5 Defenses p.285-335
-This chapter focuses primarily on comparative negligence. Contributory negligence is dead in Florida.
-Comparative negligence is an affirmative defense that must be pleaded and proven.
-p.299 How can a non-party have summary judgment ruled in its favor? Who is arguing for this non-party?
-p.310 If a negligent vehicle owner's insurance is not enough to cover damages, and the negligent driver's insurance is not enough either, procedurally, how would you go about getting as much as you can from both under comparative negligence?
-p.315 See this page for information on Fabre defendants. I will have to read this information again and again.
-Assumption of the risk is an affirmative defense that results in a jury interrogatory. It often applies to participation in contact sports.
-p.328 What exactly is the competent evidence standard?
Chapter 6 Strict Liability p.337-385
-It is uncertain under Florida law if strict liability should be decided by the court or by the fact finder. Strict liability (or an abnormally dangerous activity) can be designated as such by the legislature.
-Practically speaking, there is almost no difference between an invitee and licensee.
Chapter 7 Joint and Several Liability p.387-429
-This is the most confusing chapter in the treatise. The first sentence says that joint and several liability was abrogated by the legislature in 2006, but the book goes on to talk like it is still in effect. I am not sure if it is in partial effect or not. For example, the book questions whether an active tortfeasor and a defendant held vicariously liable are joint tortfeasors. The book says they are jointly and severally liable. The case it uses to support this rule is from 1998. There is no mention of the 2006 abrogation and its effect. There are many examples of this throughout the chapter. It gives me more questions than answers.
-See p.423 for the difference between res judicata and estoppel by judgment.
-p.416 Can a defendant implead a defunct company?
-p.420 As a plaintiff, why would you ever enter a satisfaction of judgment? What exactly is that and is it required?
-p.428 When a plaintiff proceeds against less than all of the negligent parties, then in a later action sues more, the percentage of fault on the jury verdict form from the first trial has no bearing on the subsequent trial, right? Or is the plaintiff completely barred from subsequent trials via res judicata or estoppel by judgment?
-p.422 What is the election of actions doctrine?
-p.427 How is an offer of judgment different from an offer of settlement? Why would you choose one versus the other?
Chapter 8 Indemnity, Subrogation and Contribution p.431-479.
-p.436 What is the difference between establishing a predicate and establishing an element of a COA?
-p.460 In settling with one of multiple tortfeasors, make sure you reserve the right to proceed against other tortfeasors.
-The right to a trial by jury only extends to actions at law (not equitable remedies).
-p.472 What are the "principles of equity?" Just fairness?
Chapter 9 Sovereign Immunity p.481-583
-In deciding whether sovereign immunity applies, one of the key concepts is whether the government's action was discretionary or operational.
-p.487 As a plaintiff's lawyer, we want the deeper pockets of the governmental entity, but must we plead in the alternative malicious or wanton misconduct to avoid res judicata in an action against the employee?
-p.502 I need more examples of a duty owed to the plaintiff as opposed to the general public.
-p.518 As a plaintiff, you do not have to meet all three of these requirements to sue the police department, do you? Just meeting one should be enough. Satisfying all three is too high a burden.
-p.528 What is a capital improvement?
-p.546 Be aware of special taxing districts.
-p.547 Whether or not a health care provider is a government employee, is this a question for the jury?
-p.553 Why would a state agency purchase liability insurance, and do you need a claims bill to get to this insurance money beyond the cap?
-See p.561 versus p.559. Should you attach the notice letter to the complaint or not?
-The cap is $100,000 for one plaintiff, a max cap of $200,000 total for multiple plaintiffs.
Chapter 10 Premises Liability p.585-649
-Why the injured party was on the premises (trespasser vs. invitee) affects the duty standard.
-The attractive nuisance doctrine only applies to children.
-Firefighters and police are invitees.
-Be aware of the obvious danger doctrine for summary judgment.
Chapter 11 Liability of Those Who Sell or Furnish Alcoholic Beverages p.651-688.
-Liability is limited to commercial vendors (not social hosts). In order for liability to exist, the person must must be habitually addicted to alcohol, and the vendor must have notice (though not written notice). They can also be liable for selling to minors.
-Many of the same ways that intoxication is proved by the state in criminal cases are also useful in civil proceedings.
-Make sure the vendor has liability insurance. Look at the language of the policy for exclusions (CGL).
-A plaintiff intoxicated at the time generally can not recover damages.
Chapter 12 Medical Malpractice p.689-836.
-Two year statute of limitations.
-90 day presuit investigation requirement that does not toll the statute of limitations.
-Be aware of the statute of repose as a complete bar to recovery.
-Just because negligence happens in a hospital doe not automatically mean that it is medical malpractice. A patient falling out of his or her bed may constitute ordinary negligence.
Chapter 13 Products Liability p.837-958.
-Common elements: 1) defect was present in the product 2) defect caused the injuries complained of 3) defect existed at the time the manufacturer, retailer, or supplier parted with possession of the product.
-Be aware of the zone of risk created when the product is parted with. It is not just to the purchaser.
-Negligent failure to warn is a COA.
-p.867 Can a settlement with Shands hospital be kept private?
-p.890 If another manufacturer can be impleaded, whose market share is known, but the manufacturer is insolvent or defunct, is that bad luck for the plaintiff or the defendant? Probably the plaintiff?
-p.896 Elements to establish strict liability.
-p.915 A prima facie case is not enough for summary judgment.
-p.924 Who or what is a "warranty beneficiary" as opposed to the "actual buyer?" See p.926. Other family members?
-Breach of warranty COA: 1) sale of the goods 2) goods must be defective 3) certain notice requirements must be complied with.
-p.918 Elements for breach of implied warranty.
-p.933 Elements for breach of implied warranty of fitness for a particular purpose.
-p.934 Implied warranty of merchantability.
-p.952 When would a violation of the SOL not appear on the face of the complaint? What exactly is the face of the complaint?
-Note that if the COA is based on a contract breach, the SOL is five years. Wrongful death actions still constitute a 2 year SOL.
-Be aware of the statute of repose.
Chapter 14 Use of Criminal Convictions in Subsequent Civil Proceedings: Statutory Collateral Estoppel Under Florida and Federal Law p.959-1004.
-Basically, a defendant who is found guilty (or perhaps pleads nolo contendere) to a criminal offense is estopped from denying the elements of that offense in a subsequent civil proceeding against him for damages.
Chapter 15 Punitive Damages p.1005-1103.
-p.1065 Does bankruptcy absolve punitive damages? If so, the plaintiff would want evidence of the defendant's financial worth to make sure that at least some money is paid.
-p.1093 What are the elements of the tort of fraudulent inducement?
-p.1030 For the statutory standard for punitive damages.
-Punitive damages may not be recovered against a sovereign.
-More is required for punitive damages bases on vicarious liability.
-p.1087 Punitive damages are available in all civil actions by statute. This is controversial, as it steps on theories of contract law.
-You can not initially plead punitive damages.
Chapters 16-22 Wrongful Death Actions pgs.1105-1233.
-Wrongful death is a COA that derives from statute as opposed to common law.
-SOL is 2 years from the date of death.
-Pain and suffering damages are not available for for the decedent, only the survivors.
-p.1126 How does the dangerous instrumentality doctrine bar a wrongful death claim?
-p.1136 What is the difference between petitioning the court and motioning the court?
-p.1142 How a personal representative of the estate is appointed.
-A COA exists for negligent stillbirth.
-p.1215-16 Apparently, joint and several liability lives on in some wrongful death actions.
-p.1217 Excellent example of the breakdown in damages.
-p.1222 What is the doctrine of recoupment?
-There is no COA for wrongful life, but there is a COA for wrongful birth.
-Wrongful Death actions can also be founded in breach of contract or warranty.
-The court must approve settlements involving minors.
-p.1148 Make sure to comply with the non claim statute (Deals with claims on the estate).
-Stepchildren probably can not recover in a wrongful death action.
-A child unborn at the time of parent's death may recover.
-For parents to recover for pain and suffering for the death of their child, the child must be less than 25 years old (unless there are no other survivors).
-For damages, consider the joint life expectancy of the parent and the child together.
-Illegitimate children of the mother may recover, but not of the father unless the father has recognized a responsibility for the child's support.
-A stillborn fetus may not recover (but keep in mind the COA for negligent stillbirth).
-Blood relatives and adoptive brothers and sisters may recover if they are wholly or partly dependent on the decedent for support or services.
-Recovery for the estate and recovery for survivors are two separate items in a wrongful death action.
-Proceeds recovered by survivors are not subject to creditors' claims.
-p.1204 Be aware of the collateral source rule.
-p.1221 Is there a 4 year SOL for wrongful death actions against state agencies?
-Children can not sue parents and vice versa unless liability insurance is available.
Chapter 23 Survival Actions p.1233-1246
-Personal injury actions can survive the death of the plaintiff, unless the death was caused by the injuries complained of in the action. In that case, the action abates and you must institute a wrongful death action.
-p.1245 All who can be sued on a joint obligation must be sued?
-Be aware of the suggestion of death requirement.
-This chapter also deals with substitution of parties.
Chapter 24 Burden of Proof, Standard of Proof, and Evidentiary Issues pgs.1247-1352.
-p.1248 Are there no directed verdicts in a bench trial? Just dismissals?
-p.1263 Some examples of when the clear and convincing evidence standard applies.
-p.1281 The jury is informed of the presumption of negligence in a rear end collision by the judge. There is a list of rebuttable presumptions on this page.
-p.1284 List of rebuttable presumptions affecting the burden of persuasion.
-p.1287 Definition of circumstantial evidence.
-p.1292 Motion the court to instruct the jury on certain inferences.
-p.1293 You get a jury instruction for establishing res ipsa loquitur.
-p.1343 Offers to settle before a lawsuit commences are admissible.
-p.1346 I do not understand the court's reasoning in the small print on this page. Mary Carter agreements are not allowed, yet via the court's decision it seems there is no way to enforce this. The court actually seems to be encouraging Mary Carter agreements.
-p.1351 What is a sponsor's note?
-The burden of proof is divided into the burden of producing evidence and the burden of persuasion.
-Presumptions are required to be adhered to by the jury, but juries may reject inferences. I need to read the section on inferences and presumptions again. See the procedure, p.1284.
-Traffic citations generally are not admissible, and neither is the officer's testimony establishing that a traffic citation was issued.
-Insurance coverage is not relevant evidence.
Chapter 25 Discovery pgs.1353-1471.
Much of this chapter is a review of things covered in my Florida Civil Practice class and Civil Pre-Trial class.
-p.1362 What does it mean, that a rule is considered remedial?
-p.1379 How do you annex a document?
-p.1394 Can you ask some interrogatories, wait for the answer, and then ask more as long as the total does not exceed 30?
-p.1431 The independent medical examiner does not charge the same rate as an expert witness, right?
-p.1483 When does the court grant a valcin presumption versus an adverse inference?
-p.1483 In an adverse inference, opposing counsel may not argue against the inference?
Chapter 26 Spoliation of Evidence pgs.1473-1484.
-Spoliation of evidence is its own COA, though you cannot file it jointly with another COA against the same defendant in the same matter.
Chapter 27 Client Relations and Fee Agreements pgs.1485-1533.
-p.1519 What is a charging lien?
-p.1529 When do you file a demand for appointment of arbitrators and may either party file it?
-p.1533 What is the lodestar approach?
-27:10 So fees for property damage are the same as personal injury or wrongful death?
-When fee-splitting a contingency fee, the primary gets 75% and the secondary gets 25%.
-p.1528 Standards for the fee.
Chapter 28 The Jury pgs.1535-1555.
-p.1543 What is back striking a juror?
-p.1554 I am not sure how peremptory challenges work with alternate jurors.
-Always poll the jury if they return a verdict against you.
Anyway, if a prospective employer stumbles across my blog, this entry will serve to show that, despite not being employed this summer, I tried to make good use of my time to become proficient in personal injury law. In another entry, I will post some notes from Florida Motor Vehicle No-Fault Law: Personal Injury Protection 2009-2010 edition by Russel Lazega.
Chapter 1 Negligence: Basic Concepts and Duty, pgs.1-81.
-Know the difference between negligence per se, prima facie evidence of negligence, and strict liability. Of these, strict liability is the strongest for the plaintiff. If strict liability applies, you do not have to prove proximate causation- only actual causation and damages. I am still not totally clear on the difference between negligence per se and prima facie evidence. I think negligence per se is stronger. It usually comes up when the defendant has violated a statute. It means negligence has occurred, but it is not necessarily actionable negligence. The plaintiff must still prove that 1) the plaintiff belongs to the class that the statute was intended to protect 2) that the plaintiff suffered injury of the type the statute was designed to prevent 3) violation of the statute was the proximate cause of the injury. Prima facie evidence of negligence creates a rebuttable presumption of negligence. An example might be violation of a traffic ordinance. The defendant may still show that no negligence at all occurred, though.
Chapter 2 Standard of Care, pgs.83-130.
-Know the difference between slight negligence, ordinary negligence, gross negligence, and culpable negligence. The slight negligence standard usually applies to common carriers.
-p.122 Be aware of the sudden emergency doctrine.
-Children are responsible for their own torts, though they have their own separate standard of care (keep in mind negligent supervision COA against parents). A child under six is considered to be incapable of negligence.
Chapter 3 Causation pgs.131-200.
-Know the difference between a concurring cause and an intervening cause and the ramifications. Intervening causes can be a complete bar to recovery, and they are often decided as a matter of law at the summary judgment phase.
-p.187 Are motions for directed verdict heard outside the presence of the jury?
-p.196 How free are we as attorneys to argue our own jury instructions in closing argument?
-Be aware of the unavoidable accident doctrine. This can be a complete bar to recovery.
-Be aware of the rescue doctrine. Police and firemen can recover for injuries not reasonably foreseeable in the line of duty. They can also recover for injuries sustained from going above and beyond the call of duty.
Chapter 4 Imputed Negligence pgs. 201-283.
-Generally, you can not impute the negligence of an independent contractor to the employer.
-Are the participants in a partnership, joint venture, or joint enterprise jointly and severally liable? Probably yes. See p.244.
-One spouse is not liable for the torts of the other spouse.
-p.260 See exceptions to the general rule that a parent is not liable for the torts of the child.
-When an employee commits an intentional tort, think about negligent hiring and retention as a COA.
Chapter 5 Defenses p.285-335
-This chapter focuses primarily on comparative negligence. Contributory negligence is dead in Florida.
-Comparative negligence is an affirmative defense that must be pleaded and proven.
-p.299 How can a non-party have summary judgment ruled in its favor? Who is arguing for this non-party?
-p.310 If a negligent vehicle owner's insurance is not enough to cover damages, and the negligent driver's insurance is not enough either, procedurally, how would you go about getting as much as you can from both under comparative negligence?
-p.315 See this page for information on Fabre defendants. I will have to read this information again and again.
-Assumption of the risk is an affirmative defense that results in a jury interrogatory. It often applies to participation in contact sports.
-p.328 What exactly is the competent evidence standard?
Chapter 6 Strict Liability p.337-385
-It is uncertain under Florida law if strict liability should be decided by the court or by the fact finder. Strict liability (or an abnormally dangerous activity) can be designated as such by the legislature.
-Practically speaking, there is almost no difference between an invitee and licensee.
Chapter 7 Joint and Several Liability p.387-429
-This is the most confusing chapter in the treatise. The first sentence says that joint and several liability was abrogated by the legislature in 2006, but the book goes on to talk like it is still in effect. I am not sure if it is in partial effect or not. For example, the book questions whether an active tortfeasor and a defendant held vicariously liable are joint tortfeasors. The book says they are jointly and severally liable. The case it uses to support this rule is from 1998. There is no mention of the 2006 abrogation and its effect. There are many examples of this throughout the chapter. It gives me more questions than answers.
-See p.423 for the difference between res judicata and estoppel by judgment.
-p.416 Can a defendant implead a defunct company?
-p.420 As a plaintiff, why would you ever enter a satisfaction of judgment? What exactly is that and is it required?
-p.428 When a plaintiff proceeds against less than all of the negligent parties, then in a later action sues more, the percentage of fault on the jury verdict form from the first trial has no bearing on the subsequent trial, right? Or is the plaintiff completely barred from subsequent trials via res judicata or estoppel by judgment?
-p.422 What is the election of actions doctrine?
-p.427 How is an offer of judgment different from an offer of settlement? Why would you choose one versus the other?
Chapter 8 Indemnity, Subrogation and Contribution p.431-479.
-p.436 What is the difference between establishing a predicate and establishing an element of a COA?
-p.460 In settling with one of multiple tortfeasors, make sure you reserve the right to proceed against other tortfeasors.
-The right to a trial by jury only extends to actions at law (not equitable remedies).
-p.472 What are the "principles of equity?" Just fairness?
Chapter 9 Sovereign Immunity p.481-583
-In deciding whether sovereign immunity applies, one of the key concepts is whether the government's action was discretionary or operational.
-p.487 As a plaintiff's lawyer, we want the deeper pockets of the governmental entity, but must we plead in the alternative malicious or wanton misconduct to avoid res judicata in an action against the employee?
-p.502 I need more examples of a duty owed to the plaintiff as opposed to the general public.
-p.518 As a plaintiff, you do not have to meet all three of these requirements to sue the police department, do you? Just meeting one should be enough. Satisfying all three is too high a burden.
-p.528 What is a capital improvement?
-p.546 Be aware of special taxing districts.
-p.547 Whether or not a health care provider is a government employee, is this a question for the jury?
-p.553 Why would a state agency purchase liability insurance, and do you need a claims bill to get to this insurance money beyond the cap?
-See p.561 versus p.559. Should you attach the notice letter to the complaint or not?
-The cap is $100,000 for one plaintiff, a max cap of $200,000 total for multiple plaintiffs.
Chapter 10 Premises Liability p.585-649
-Why the injured party was on the premises (trespasser vs. invitee) affects the duty standard.
-The attractive nuisance doctrine only applies to children.
-Firefighters and police are invitees.
-Be aware of the obvious danger doctrine for summary judgment.
Chapter 11 Liability of Those Who Sell or Furnish Alcoholic Beverages p.651-688.
-Liability is limited to commercial vendors (not social hosts). In order for liability to exist, the person must must be habitually addicted to alcohol, and the vendor must have notice (though not written notice). They can also be liable for selling to minors.
-Many of the same ways that intoxication is proved by the state in criminal cases are also useful in civil proceedings.
-Make sure the vendor has liability insurance. Look at the language of the policy for exclusions (CGL).
-A plaintiff intoxicated at the time generally can not recover damages.
Chapter 12 Medical Malpractice p.689-836.
-Two year statute of limitations.
-90 day presuit investigation requirement that does not toll the statute of limitations.
-Be aware of the statute of repose as a complete bar to recovery.
-Just because negligence happens in a hospital doe not automatically mean that it is medical malpractice. A patient falling out of his or her bed may constitute ordinary negligence.
Chapter 13 Products Liability p.837-958.
-Common elements: 1) defect was present in the product 2) defect caused the injuries complained of 3) defect existed at the time the manufacturer, retailer, or supplier parted with possession of the product.
-Be aware of the zone of risk created when the product is parted with. It is not just to the purchaser.
-Negligent failure to warn is a COA.
-p.867 Can a settlement with Shands hospital be kept private?
-p.890 If another manufacturer can be impleaded, whose market share is known, but the manufacturer is insolvent or defunct, is that bad luck for the plaintiff or the defendant? Probably the plaintiff?
-p.896 Elements to establish strict liability.
-p.915 A prima facie case is not enough for summary judgment.
-p.924 Who or what is a "warranty beneficiary" as opposed to the "actual buyer?" See p.926. Other family members?
-Breach of warranty COA: 1) sale of the goods 2) goods must be defective 3) certain notice requirements must be complied with.
-p.918 Elements for breach of implied warranty.
-p.933 Elements for breach of implied warranty of fitness for a particular purpose.
-p.934 Implied warranty of merchantability.
-p.952 When would a violation of the SOL not appear on the face of the complaint? What exactly is the face of the complaint?
-Note that if the COA is based on a contract breach, the SOL is five years. Wrongful death actions still constitute a 2 year SOL.
-Be aware of the statute of repose.
Chapter 14 Use of Criminal Convictions in Subsequent Civil Proceedings: Statutory Collateral Estoppel Under Florida and Federal Law p.959-1004.
-Basically, a defendant who is found guilty (or perhaps pleads nolo contendere) to a criminal offense is estopped from denying the elements of that offense in a subsequent civil proceeding against him for damages.
Chapter 15 Punitive Damages p.1005-1103.
-p.1065 Does bankruptcy absolve punitive damages? If so, the plaintiff would want evidence of the defendant's financial worth to make sure that at least some money is paid.
-p.1093 What are the elements of the tort of fraudulent inducement?
-p.1030 For the statutory standard for punitive damages.
-Punitive damages may not be recovered against a sovereign.
-More is required for punitive damages bases on vicarious liability.
-p.1087 Punitive damages are available in all civil actions by statute. This is controversial, as it steps on theories of contract law.
-You can not initially plead punitive damages.
Chapters 16-22 Wrongful Death Actions pgs.1105-1233.
-Wrongful death is a COA that derives from statute as opposed to common law.
-SOL is 2 years from the date of death.
-Pain and suffering damages are not available for for the decedent, only the survivors.
-p.1126 How does the dangerous instrumentality doctrine bar a wrongful death claim?
-p.1136 What is the difference between petitioning the court and motioning the court?
-p.1142 How a personal representative of the estate is appointed.
-A COA exists for negligent stillbirth.
-p.1215-16 Apparently, joint and several liability lives on in some wrongful death actions.
-p.1217 Excellent example of the breakdown in damages.
-p.1222 What is the doctrine of recoupment?
-There is no COA for wrongful life, but there is a COA for wrongful birth.
-Wrongful Death actions can also be founded in breach of contract or warranty.
-The court must approve settlements involving minors.
-p.1148 Make sure to comply with the non claim statute (Deals with claims on the estate).
-Stepchildren probably can not recover in a wrongful death action.
-A child unborn at the time of parent's death may recover.
-For parents to recover for pain and suffering for the death of their child, the child must be less than 25 years old (unless there are no other survivors).
-For damages, consider the joint life expectancy of the parent and the child together.
-Illegitimate children of the mother may recover, but not of the father unless the father has recognized a responsibility for the child's support.
-A stillborn fetus may not recover (but keep in mind the COA for negligent stillbirth).
-Blood relatives and adoptive brothers and sisters may recover if they are wholly or partly dependent on the decedent for support or services.
-Recovery for the estate and recovery for survivors are two separate items in a wrongful death action.
-Proceeds recovered by survivors are not subject to creditors' claims.
-p.1204 Be aware of the collateral source rule.
-p.1221 Is there a 4 year SOL for wrongful death actions against state agencies?
-Children can not sue parents and vice versa unless liability insurance is available.
Chapter 23 Survival Actions p.1233-1246
-Personal injury actions can survive the death of the plaintiff, unless the death was caused by the injuries complained of in the action. In that case, the action abates and you must institute a wrongful death action.
-p.1245 All who can be sued on a joint obligation must be sued?
-Be aware of the suggestion of death requirement.
-This chapter also deals with substitution of parties.
Chapter 24 Burden of Proof, Standard of Proof, and Evidentiary Issues pgs.1247-1352.
-p.1248 Are there no directed verdicts in a bench trial? Just dismissals?
-p.1263 Some examples of when the clear and convincing evidence standard applies.
-p.1281 The jury is informed of the presumption of negligence in a rear end collision by the judge. There is a list of rebuttable presumptions on this page.
-p.1284 List of rebuttable presumptions affecting the burden of persuasion.
-p.1287 Definition of circumstantial evidence.
-p.1292 Motion the court to instruct the jury on certain inferences.
-p.1293 You get a jury instruction for establishing res ipsa loquitur.
-p.1343 Offers to settle before a lawsuit commences are admissible.
-p.1346 I do not understand the court's reasoning in the small print on this page. Mary Carter agreements are not allowed, yet via the court's decision it seems there is no way to enforce this. The court actually seems to be encouraging Mary Carter agreements.
-p.1351 What is a sponsor's note?
-The burden of proof is divided into the burden of producing evidence and the burden of persuasion.
-Presumptions are required to be adhered to by the jury, but juries may reject inferences. I need to read the section on inferences and presumptions again. See the procedure, p.1284.
-Traffic citations generally are not admissible, and neither is the officer's testimony establishing that a traffic citation was issued.
-Insurance coverage is not relevant evidence.
Chapter 25 Discovery pgs.1353-1471.
Much of this chapter is a review of things covered in my Florida Civil Practice class and Civil Pre-Trial class.
-p.1362 What does it mean, that a rule is considered remedial?
-p.1379 How do you annex a document?
-p.1394 Can you ask some interrogatories, wait for the answer, and then ask more as long as the total does not exceed 30?
-p.1431 The independent medical examiner does not charge the same rate as an expert witness, right?
-p.1483 When does the court grant a valcin presumption versus an adverse inference?
-p.1483 In an adverse inference, opposing counsel may not argue against the inference?
Chapter 26 Spoliation of Evidence pgs.1473-1484.
-Spoliation of evidence is its own COA, though you cannot file it jointly with another COA against the same defendant in the same matter.
Chapter 27 Client Relations and Fee Agreements pgs.1485-1533.
-p.1519 What is a charging lien?
-p.1529 When do you file a demand for appointment of arbitrators and may either party file it?
-p.1533 What is the lodestar approach?
-27:10 So fees for property damage are the same as personal injury or wrongful death?
-When fee-splitting a contingency fee, the primary gets 75% and the secondary gets 25%.
-p.1528 Standards for the fee.
Chapter 28 The Jury pgs.1535-1555.
-p.1543 What is back striking a juror?
-p.1554 I am not sure how peremptory challenges work with alternate jurors.
-Always poll the jury if they return a verdict against you.
Friday, July 9, 2010
The 10,000 Hour Rule
Malcolm Gladwell, author of Outliers: The Story of Success, notes what he calls "the 10,000 hour rule" as a necessary part of individual success. Put briefly, the rule is that one must devote 10,000 hours to performing a specific task in order to become proficient at it. Mayor John Marks of Tallahassee mentioned this rule when he spoke to the Summer for Undergraduates students back in May.
Day by day, I am knocking out those 10,000 hours in regard to the practice of Florida personal injury law. I have completed reading Florida Motor Vehicle No-Fault Law: Personal Injury Protection by Russel Lazega, and yesterday I passed the 600 page mark in Judge Sawaya's Florida Personal Injury Law and Practice with Wrongful Death Actions. Only about 900 more pages to go in that volume.
I am pleased with how much I am learning this summer. My torts professor did a good job covering the major areas during my first semester of law school, but these treatises are delving into great detail and providing me with Florida-specific statutes and case law. If my reading rate stays good, I should have time to tackle Ehrhardt's Florida Evidence before school starts back.
It is fair to say that I am learning more on my own than if I was working at a firm this summer- though I would enjoy getting paid.
Until Next Time,
Nathan Marshburn
Day by day, I am knocking out those 10,000 hours in regard to the practice of Florida personal injury law. I have completed reading Florida Motor Vehicle No-Fault Law: Personal Injury Protection by Russel Lazega, and yesterday I passed the 600 page mark in Judge Sawaya's Florida Personal Injury Law and Practice with Wrongful Death Actions. Only about 900 more pages to go in that volume.
I am pleased with how much I am learning this summer. My torts professor did a good job covering the major areas during my first semester of law school, but these treatises are delving into great detail and providing me with Florida-specific statutes and case law. If my reading rate stays good, I should have time to tackle Ehrhardt's Florida Evidence before school starts back.
It is fair to say that I am learning more on my own than if I was working at a firm this summer- though I would enjoy getting paid.
Until Next Time,
Nathan Marshburn
Sunday, June 20, 2010
The Plan
This summer is shaping up to be a bit of a double edged sword.
To my surprise, despite earning grades this year that were much better than in my first year of law school, I am unemployed right now.
I was thrown a bit of a curve ball when, due to the economic downturn, the firm I worked with last summer decided not to hire any law clerks at all this season. Last year, I was one of three that they hired. But I can not hold this against them. They gave me perhaps my most important experience during law school, and I am indebted to them for the trips and the meals to which they treated me last summer.
Also, though I have absolutely no regrets about working for the Summer for Undergraduates Program, this hampered me in some capacity for finding work with a firm. The program cut into about five weeks of the summer break, and law firms are more reluctant to bring on someone who is only going to be around two months.
So, I am going to miss the income.
But now for the other side of the sword. I am treating this break as if there was not one, as if I were still taking classes full time. Only now, I am studying books in the area where I think I need the most knowledge- personal injury law.
My experiences this year taught me that I will probably not be happy working at a firm that operates under the billable hour system. Unfortunately, the billable hour system is utilized by firms in most areas of law. Perhaps in a future blog entry I will detail just how that system works.
On January 16th of this year, I wrote a blog entry about how a student can not predict what kind of law he or she will practice. I now have to make that blog entry not true in regards to myself. Personal injury law, the type that I worked with last summer, is the major area where firms do not operate by the billable hour.
So, with this new knowledge of myself, my plan is to become as proficient as possible in personal injury law before graduation. I must make a P.I. firm want to hire me.
This summer, I will teach myself a course in personal injury law, as it is not a subject specifically taught by the law school. This break is a wonderful opportunity to learn. While working at the law firm last summer, there were times when I wished I had hours or even days to study a particular topic before submitting my memo or motion. By the end of the first week, I knew to keep my torts textbook and my civil procedure text and notes with me at my desk. Deadlines imposed by the partners or other lawyers kept me from doing as good a job as I would have liked.
Now is my chance, though. When school resumes in the fall, I will have a full slate of reading assigned to me. When I graduate, I will immediately begin studying for the bar exam. And when I land a job, I am sure it will be full tilt boogey and I will have to learn what I can on the fly and in real situations with real consequences.
But right now, I have time. I will read and take notes on Florida Motor Vehicle No-Fault Law: Personal Injury Protection by Russel Lazega. This is a Florida Practice Series book of about 450 pages in length before the appendix. I have already knocked out about 200 pages of it. After completing that book, I will read Florida Personal Injury Law and Practice with Wrongful Death Actions by Judge Thomas Sawaya. This is a volume of over 1500 pages before the supplemental information. I am unaware of any course currently taught at the law school that would require me to even glance at these texts, yet they should prove extremely valuable in actual practice.
The reading should take up the rest of my summer.
Also, a couple of weeks ago I received a jury summons for the first time in my life. I reported as directed on Friday, and to my surprise after voir dire I was selected to sit on the jury for a criminal case. It will be interesting and useful to watch a trial from the jury box, and then go into the deliberation room and observe how the jury members come to their decision.
As for my blog entries for the rest of the summer- we will see what I write about. I doubt that highlights of my week's readings will prove that enthralling.
Until Next Time,
Nathan Marshburn
To my surprise, despite earning grades this year that were much better than in my first year of law school, I am unemployed right now.
I was thrown a bit of a curve ball when, due to the economic downturn, the firm I worked with last summer decided not to hire any law clerks at all this season. Last year, I was one of three that they hired. But I can not hold this against them. They gave me perhaps my most important experience during law school, and I am indebted to them for the trips and the meals to which they treated me last summer.
Also, though I have absolutely no regrets about working for the Summer for Undergraduates Program, this hampered me in some capacity for finding work with a firm. The program cut into about five weeks of the summer break, and law firms are more reluctant to bring on someone who is only going to be around two months.
So, I am going to miss the income.
But now for the other side of the sword. I am treating this break as if there was not one, as if I were still taking classes full time. Only now, I am studying books in the area where I think I need the most knowledge- personal injury law.
My experiences this year taught me that I will probably not be happy working at a firm that operates under the billable hour system. Unfortunately, the billable hour system is utilized by firms in most areas of law. Perhaps in a future blog entry I will detail just how that system works.
On January 16th of this year, I wrote a blog entry about how a student can not predict what kind of law he or she will practice. I now have to make that blog entry not true in regards to myself. Personal injury law, the type that I worked with last summer, is the major area where firms do not operate by the billable hour.
So, with this new knowledge of myself, my plan is to become as proficient as possible in personal injury law before graduation. I must make a P.I. firm want to hire me.
This summer, I will teach myself a course in personal injury law, as it is not a subject specifically taught by the law school. This break is a wonderful opportunity to learn. While working at the law firm last summer, there were times when I wished I had hours or even days to study a particular topic before submitting my memo or motion. By the end of the first week, I knew to keep my torts textbook and my civil procedure text and notes with me at my desk. Deadlines imposed by the partners or other lawyers kept me from doing as good a job as I would have liked.
Now is my chance, though. When school resumes in the fall, I will have a full slate of reading assigned to me. When I graduate, I will immediately begin studying for the bar exam. And when I land a job, I am sure it will be full tilt boogey and I will have to learn what I can on the fly and in real situations with real consequences.
But right now, I have time. I will read and take notes on Florida Motor Vehicle No-Fault Law: Personal Injury Protection by Russel Lazega. This is a Florida Practice Series book of about 450 pages in length before the appendix. I have already knocked out about 200 pages of it. After completing that book, I will read Florida Personal Injury Law and Practice with Wrongful Death Actions by Judge Thomas Sawaya. This is a volume of over 1500 pages before the supplemental information. I am unaware of any course currently taught at the law school that would require me to even glance at these texts, yet they should prove extremely valuable in actual practice.
The reading should take up the rest of my summer.
Also, a couple of weeks ago I received a jury summons for the first time in my life. I reported as directed on Friday, and to my surprise after voir dire I was selected to sit on the jury for a criminal case. It will be interesting and useful to watch a trial from the jury box, and then go into the deliberation room and observe how the jury members come to their decision.
As for my blog entries for the rest of the summer- we will see what I write about. I doubt that highlights of my week's readings will prove that enthralling.
Until Next Time,
Nathan Marshburn
Saturday, August 22, 2009
A Successful Summer
Yesterday was my last day of work at Parks & Crump, at least for now. I can not thank Attorney Crump and Attorney Parks enough for the experience, and I could not have asked for a better summer.
For the first month, I had a chance to meet a lot of bright and talented undergraduate students from all over the country who are interested in law school while I worked for the Summer For Undergraduates Program. The job also allowed me to meet various attorneys, judges, and justices in town, as well as more professors from the law school. It was a lot of fun. I remember thinking on Memorial Day how neat it was that I was getting paid to play volleyball with the undergrads at Lake Bradford.
That program ended in mid-June, and I immediately picked up with Parks & Crump, LLC as a paid law clerk. The work was intense. On my second day there, I had to write a Motion to Deny a Motion for Summary Judgment. I drafted complaints, researched questions of law for the partners, drafted Motions for Summary Judgment, drafted questions for depositions, attended and assisted with a deposition, a mediation, and a trial. Most nights, I did not get off work until close to 9 pm. I also had to work during some weekends.
The confidence I gained from this work is extremely valuable, though. And the firm also treated me to numerous lunches and dinners at nice restaurants along with trips to New Orleans and San Francisco.
So, to Parks & Crump, I say thank you so very much. I hope I showed my gratitude through my positive attitude and my work ethic.
Now, class begins for my second year of law school on Monday. Away we go.
Last night, I went to the Student Bar Association Orientation Social at Potbelly's, the club across the street from the law school. Last year at this time, I went to that social not knowing anyone. This time when I walked through the door, I was greeted almost immediately by 20 classmates happy to see me. I also met a few 1Ls, and I could tell from the expressions on their faces that they felt the exact same way that I felt last year. . . Glad and fascinated to be here, but wondering exactly what I had gotten myself into and whether or not I would make it.
It was a great time last night, and if last night is any indication of how this year is going to go for me, then it will easily be one of the happiest years of my life.
Now, time to read Evidence for my 8am class on Monday.
Universal Health Care Now,
Nathan Marshburn
For the first month, I had a chance to meet a lot of bright and talented undergraduate students from all over the country who are interested in law school while I worked for the Summer For Undergraduates Program. The job also allowed me to meet various attorneys, judges, and justices in town, as well as more professors from the law school. It was a lot of fun. I remember thinking on Memorial Day how neat it was that I was getting paid to play volleyball with the undergrads at Lake Bradford.
That program ended in mid-June, and I immediately picked up with Parks & Crump, LLC as a paid law clerk. The work was intense. On my second day there, I had to write a Motion to Deny a Motion for Summary Judgment. I drafted complaints, researched questions of law for the partners, drafted Motions for Summary Judgment, drafted questions for depositions, attended and assisted with a deposition, a mediation, and a trial. Most nights, I did not get off work until close to 9 pm. I also had to work during some weekends.
The confidence I gained from this work is extremely valuable, though. And the firm also treated me to numerous lunches and dinners at nice restaurants along with trips to New Orleans and San Francisco.
So, to Parks & Crump, I say thank you so very much. I hope I showed my gratitude through my positive attitude and my work ethic.
Now, class begins for my second year of law school on Monday. Away we go.
Last night, I went to the Student Bar Association Orientation Social at Potbelly's, the club across the street from the law school. Last year at this time, I went to that social not knowing anyone. This time when I walked through the door, I was greeted almost immediately by 20 classmates happy to see me. I also met a few 1Ls, and I could tell from the expressions on their faces that they felt the exact same way that I felt last year. . . Glad and fascinated to be here, but wondering exactly what I had gotten myself into and whether or not I would make it.
It was a great time last night, and if last night is any indication of how this year is going to go for me, then it will easily be one of the happiest years of my life.
Now, time to read Evidence for my 8am class on Monday.
Universal Health Care Now,
Nathan Marshburn
Sunday, August 16, 2009
Points for Starting a Law Firm
A few months ago, I wrote a blog saying that my desire for a career was to work with a large firm. While I am still open to that and continue to actively pursue it, my experience as a law clerk this summer has also opened my mind to the possibility of starting my own firm at some point.
Counting the two partners, eight attorneys work at my office, Parks & Crump, LLC. My clerkship has been quite special in the exposure that I have received in how such a firm operates and makes money. I want to record here in list fashion some of the things that I have learned in what makes a firm successful. Much of this is common sense, but I think it is still worth writing down.
1) Parks & Crump has become successful by taking cases that no one else wanted. More specifically, they will take civil rights cases involving economically poor minorities. They have also endorsed a number of political causes for minorities in the community. The firm has earned a reputation as a champion for the underdog, and thus Parks & Crump is often the first firm those from a lower socioeconomic status call when they encounter legal trouble. However, the firm still does not take a case it does not think it can win.
2) A phone system that works, and competent personnel to answer the phones is key to keeping the business running.
3) Be conscious of your overhead costs. They can quickly balloon to unmanageable proportions.
4) Be careful with hiring a lot of people, especially early in the firm's existence. Good help is hard to find. And if you find good help, they will want to be paid well in order to stay with you.
5) A good office manager is just as important to your firm's success as a good attorney.
6) If you have an opportunity to develop any sales skills prior to starting your own firm, take it. So much of marketing your firm and having success in the courtroom goes back to basic selling skills.
7) Make the decisions on which cases you take based on business logic and not emotion. Avoid cases you can not win. Your good cases will most likely settle. The cases that could go either way are the ones that go to trial.
8) You have to be fearless. You can not be afraid to go to trial. Trial law is not for the faint-of-heart. Opposing firms will test you. They will try to "paper you to death" with motions in limine and motions for continuances. They will try to run up your costs of working the case. You have to be willing to say, "Bring it on!" As one of the partners told me, there is a streak of craziness that runs through all great trial lawyers, a willingness to roll the dice.
9) That being said, I think you should look to team up with another firm if it looks like a case is going to become expensive. Otherwise, you may run out of the necessary funds to try the case. The other firm will take a lot of the financial reward if you win, but they also absorb a lot of the risk if you lose, and you still establish a reputation as a lawyer who will to go to trial against the big firms.
10) Remember the client. While you must make a business decision about whether or not to take the case, once the decision is made to fight for this client you must dive into it with full gusto. Keep your client informed of what you are doing and show that you care about this outcome for them. Especially for the types of clients who come to Parks & Crump, our work on their case is one of the few rays of hope in their lives. Never forget how important they consider the work you are doing for them. Step into the role of being their champion, and do it with confidence. Give them hope. Life isn't worth living without hope.
Universal Health Care Now,
Nathan Marshburn
Counting the two partners, eight attorneys work at my office, Parks & Crump, LLC. My clerkship has been quite special in the exposure that I have received in how such a firm operates and makes money. I want to record here in list fashion some of the things that I have learned in what makes a firm successful. Much of this is common sense, but I think it is still worth writing down.
1) Parks & Crump has become successful by taking cases that no one else wanted. More specifically, they will take civil rights cases involving economically poor minorities. They have also endorsed a number of political causes for minorities in the community. The firm has earned a reputation as a champion for the underdog, and thus Parks & Crump is often the first firm those from a lower socioeconomic status call when they encounter legal trouble. However, the firm still does not take a case it does not think it can win.
2) A phone system that works, and competent personnel to answer the phones is key to keeping the business running.
3) Be conscious of your overhead costs. They can quickly balloon to unmanageable proportions.
4) Be careful with hiring a lot of people, especially early in the firm's existence. Good help is hard to find. And if you find good help, they will want to be paid well in order to stay with you.
5) A good office manager is just as important to your firm's success as a good attorney.
6) If you have an opportunity to develop any sales skills prior to starting your own firm, take it. So much of marketing your firm and having success in the courtroom goes back to basic selling skills.
7) Make the decisions on which cases you take based on business logic and not emotion. Avoid cases you can not win. Your good cases will most likely settle. The cases that could go either way are the ones that go to trial.
8) You have to be fearless. You can not be afraid to go to trial. Trial law is not for the faint-of-heart. Opposing firms will test you. They will try to "paper you to death" with motions in limine and motions for continuances. They will try to run up your costs of working the case. You have to be willing to say, "Bring it on!" As one of the partners told me, there is a streak of craziness that runs through all great trial lawyers, a willingness to roll the dice.
9) That being said, I think you should look to team up with another firm if it looks like a case is going to become expensive. Otherwise, you may run out of the necessary funds to try the case. The other firm will take a lot of the financial reward if you win, but they also absorb a lot of the risk if you lose, and you still establish a reputation as a lawyer who will to go to trial against the big firms.
10) Remember the client. While you must make a business decision about whether or not to take the case, once the decision is made to fight for this client you must dive into it with full gusto. Keep your client informed of what you are doing and show that you care about this outcome for them. Especially for the types of clients who come to Parks & Crump, our work on their case is one of the few rays of hope in their lives. Never forget how important they consider the work you are doing for them. Step into the role of being their champion, and do it with confidence. Give them hope. Life isn't worth living without hope.
Universal Health Care Now,
Nathan Marshburn
Saturday, June 27, 2009
In the Groove
Like a distance runner gradually building up stamina, I'm beginning to get used to the long hours at the firm. Friday, they let me go at 6:30 pm and it felt a little weird- like I didn't know what to do with myself. As long as I get time to go for my jogs, have two meals a day where I'm not rushed to eat, have an hour after work to just unwind, and then get about 7 hours sleep, I'm good to keep going. Some days at the firm, it's pushing my time to have all of that. But most days, I can pull it off on schedule and stay in the groove. The most stress comes when I have an extra personal errand that has to be done during the day. It can throw off my whole schedule. Such details of life are inevitable, though, and I'm trying to get better at dealing with that stress when the situation arises.
Some reading this blog entry might think that this is not the life for them. They may be right. It is not easy. Spending time with a family would be challenging on this schedule. You just have to evaluate what you want out of life and what your value system is.
As for me, I like where I am at and the work that I am doing. The partners, attorneys and staff have all been very generous and supportive. I want to do good work for them and make a legitimate contribution to the firm's success. The founding partner, Mr. Crump, did me a tremendous favor by reaching out and hiring me for the summer. This is a great opportunity. I'm just trying to show my appreciation and that he did not make a mistake in bringing me on board.
When I tell other law school students where I am at and what I am doing for the summer, you can see the wheels turning in their heads and the jealousy in their eyes. They would trade places with me in a second. This firm has a great reputation in the community, and the people here work hard and play hard. I'm in a good place.
Universal Health Care Now,
Nathan Marshburn
Some reading this blog entry might think that this is not the life for them. They may be right. It is not easy. Spending time with a family would be challenging on this schedule. You just have to evaluate what you want out of life and what your value system is.
As for me, I like where I am at and the work that I am doing. The partners, attorneys and staff have all been very generous and supportive. I want to do good work for them and make a legitimate contribution to the firm's success. The founding partner, Mr. Crump, did me a tremendous favor by reaching out and hiring me for the summer. This is a great opportunity. I'm just trying to show my appreciation and that he did not make a mistake in bringing me on board.
When I tell other law school students where I am at and what I am doing for the summer, you can see the wheels turning in their heads and the jealousy in their eyes. They would trade places with me in a second. This firm has a great reputation in the community, and the people here work hard and play hard. I'm in a good place.
Universal Health Care Now,
Nathan Marshburn
Friday, June 19, 2009
8 O'Clock Shadow
This week, I started my clerkship at Parks & Crump law firm. Mr. Crump told me that it was going to be "Baptism by Fire," and he wasn't joking. The amount of hours that I am working has escalated significantly compared to the job I just finished as a mentor in the Summer for Undergraduates Program. Now, I get into work between 8 and 8:30 am, and usually don't leave until after 8 and 9 pm. I'll be doing some research for the firm this weekend as well.
I'm not complaining. Mr. Crump was very gracious to give me this opportunity. Most students in between their first and second year of law school right now do not have paid clerkships. And there are many students who are in between their second and third year of school (and even some that have graduated) who do not have paid employment and would gladly trade places with me.
Parks & Crump is giving me the chance to learn a lot about tort law and the operation of a plaintiff's law firm. It is a model that I want to understand very well. This firm was established in 1995 by two graduates of Florida State Law. They didn't have much money to begin a firm, but Parks & Crump's steady climb to become one of the most successful personal injury firms in Florida is truly remarkable. So I'm doing my best to imitate a sponge and soak in everything I see and hear. Working long hours is just an understood necessity for success.
After 8 pm one night earlier this week, I went to the office bathroom to wash my hands and face. I was dressed in a full suit. As I wiped my face with a paper towel and looked in the mirror, I thought, "Man, I need to shave."
In fact, I had shaved that morning before coming to work. I'd never had a problem with 5 o'clock shadow- but I guess 8 o'clock is a different story.
I suppose my facial hair has been growing like this for a while, but it is the first time in my life that I noted it. A quote from Hyman Roth in The Godfather, Part II also flashed through my mind as I looked at myself in the mirror and realized I had been at the office and in a suit for over 12 hours straight... "This is the business we've chosen."
But I'm not working any more than what the partners of the firm did and do. And I've seen the alternatives. There were times in my life when I was carrying mail for 12 hours a day in Washington, DC. Office work is a piece of cake compared to that, and I'm lucky and happy to be at Parks & Crump employed as a law clerk.
Universal Health Care Now,
Nathan Marshburn
I'm not complaining. Mr. Crump was very gracious to give me this opportunity. Most students in between their first and second year of law school right now do not have paid clerkships. And there are many students who are in between their second and third year of school (and even some that have graduated) who do not have paid employment and would gladly trade places with me.
Parks & Crump is giving me the chance to learn a lot about tort law and the operation of a plaintiff's law firm. It is a model that I want to understand very well. This firm was established in 1995 by two graduates of Florida State Law. They didn't have much money to begin a firm, but Parks & Crump's steady climb to become one of the most successful personal injury firms in Florida is truly remarkable. So I'm doing my best to imitate a sponge and soak in everything I see and hear. Working long hours is just an understood necessity for success.
After 8 pm one night earlier this week, I went to the office bathroom to wash my hands and face. I was dressed in a full suit. As I wiped my face with a paper towel and looked in the mirror, I thought, "Man, I need to shave."
In fact, I had shaved that morning before coming to work. I'd never had a problem with 5 o'clock shadow- but I guess 8 o'clock is a different story.
I suppose my facial hair has been growing like this for a while, but it is the first time in my life that I noted it. A quote from Hyman Roth in The Godfather, Part II also flashed through my mind as I looked at myself in the mirror and realized I had been at the office and in a suit for over 12 hours straight... "This is the business we've chosen."
But I'm not working any more than what the partners of the firm did and do. And I've seen the alternatives. There were times in my life when I was carrying mail for 12 hours a day in Washington, DC. Office work is a piece of cake compared to that, and I'm lucky and happy to be at Parks & Crump employed as a law clerk.
Universal Health Care Now,
Nathan Marshburn
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