South Florida Personal Injury Blog

I recently read an interesting article on the AMlaw Louisville personal injury attorney page about the necessary considerations following the recommending of treatment by an attorney. While it is entirely appropriate for a personal injury attorney to recommend treating physicians to a client following their being injured in an accident, you may want to consider something.

A savvy insurance defense attorney is always certain to question the injured plaintiff about his reasons for choosing the doctor who treated them. This is due to the fact that that same physician will also be acting as somewhat of an “expert” who will ultimately testify to the severity of injuries suffered. Considering that a doctor’s testimony may be crucial in increasing the overall damages and monetary award, insurance defense lawyers will jump at the opportunity to expose any facts that may establish that the treating physician is in the back pocket of the plaintiffs lawyer.

Dawn Turner

Anyone who is involved in a personal injury case needs a lawyer. No matter how hard it is for lawyers to explain the law to their clients, no matter how artificial their jargon is for communicating among themselves and arguing to judges, lawyers know how to dig for facts, and they know which facts count. Clients do not have those skills. Nobody can acquire them until he has been actively involved in years of personal injury litigation.
One example as stated by attorney Vernon Miller explains that there are many misconceptions about personal injury law, not the least of which is the proposition that ours is a government of law and not of men. All governments function through people who make decisions and operate the institutions through which decisions are enforced. Who are these people? Voters, bureaucrats, governors, and sheriffs, and within the spectrum of litigation, legislators, judges, and jurors. Sometimes the decision of a bureaucrat, a governor, or a sheriff, even a decision of the voters, may become vital in a personal injury lawsuit. Perhaps the most important “decision makers” are the judges. Sometimes judges are more than umpires; they act like lawmakers or administrators. Judges do not approach their decisions from scratch. Meaning that they do not have unbridled authority to rule on issues according to his or her personal wisdom. Judges respond within the limits of their professional conscience. Their wisdom is impersonal, even if it is not always objective. That kind of judging is the good side of our legal system.
In any event, the manner in which a personal injury case is handled clearly depends on far more than the judges and law makers who have helped shape the boundaries of litigation. Nonetheless, a firm understanding of this aspect of personal injury litigation is also crucial in being an effective litigator. Naturally this can only be fully understood after years in the profession.

The elements of a cause of action for negligence are:

(1) a legal duty of the defending party to protect the party seeking relief under the circumstances;

(2) negligent failure by the defending party to comply with the duty;

(3) injury to the party seeking relief as a result; and

(4) damages.

The debate about whether negligence is an ultimate fact or a conclusion of law has been settled in Florida. It is an ultimate fact. To show the duty owed by the defending party to the party seeking affirmative relief, ultimate facts must be alleged showing the relationship of the parties and the circumstances out of which the duty to avoid negligence arises. It suffices to allege that the defendant negligently “operated his motor vehicle,” “designed the building” or “manufactured the product.” The standard of causation is whether the negligence probably caused the injury.

A plaintiff who does not sue all of the potentially liable parties creates a problem for a defendant or defendants. To take advantage of the abolition of joint and several liabilities and the introduction of comparative negligence a defendant must assert an affirmative defense and, absent good cause, identify a non party alleged to be liable. He must prove the non party's fault at trial by a preponderance of the evidence to have the non party included on the verdict form to apportion damages.