FL - Civ Pro Flashcards
1
Q
JURISDICTION AND RELATED MATTERS
Circuit Court (20)
Exclusive Trial Jurisdiction
A
All Actions at law not cognizable by county courts (Civil OVER 15K)
probate and estate matters, guardianship, incompetency
all cases related to juveniles except traffic offenses
all felonies and misdemeanors arising out of the same circumstances as a felony that is also charges
all cases involving the legality of a tax assessment
all actions of ejectment
AND
all actions involving title or bounders to real property
2
Q
JURISDICTION AND RELATED MATTERS
Circuit Court (20)
Shared Jurisdiction
A
EQUITY CASES involving 15K OR LESS may be heard in EITHER circuit or county court
3
Q
JURISDICTION AND RELATED MATTERS
County Court (67)
A
All misdemeanors not confizable in circuit court
all violations of municiopal and county ordinances
all actions at LAW in which the matter does not exceed 15K exclusive of interests, costs, attorneys fees
proceedings relating to the right of possession of real property and to the forcible or unlawful detention of lands and tenements EXCEPT the circuit court also has jurisdiction if the amount in controverys exceeds 15K, UNLESS the matter otherwise falls within the exclusive subject matter jurisdiction of the circuit court
All matters in EQUITY within the jursidictional amount of 15K or less except as restricted by the florida constitution
4
Q
JURISDICTION AND RELATED MATTERS
JURISDICTIONAL AMOUNT
A
In LAW cases where exclusive jurisdiction is not given the the circuit courts, the dividing line between circuit and county is 15K; jurisdiction is NOT however retroactively defeated by the fact that the amount actually recovered is LESS than the jurisdictional amount. All that is required to bring an action in the proper court is a good faith allegation that the amount in controversy exceeds or does not exceed the jurisdictional amount. In a CLASS ACTION suit, the claims of the class members MAY be aggregated to meet the jurisdictional amount
5
Q
JURISDICTION AND RELATED MATTERS
Jurisdictional Amount
Amounts Includable
A
Punitive damages CAN be included in calculating the jurisdictional amount.
Interest MAY be included IF it is a part of the cause of action itself, but not if it is interest added to the cause of action.
Court costs are EXCLUDED in determining whether a claim exceeds 15K.
Attorneys fees are ADDED to the principal sum claimed IF recoverable by contract or statute.
6
Q
JURISDICTION AND RELATED MATTERS
Jurisdictional Amount
Causes Cannot be Agrgregated
A
Aggregation of separate causes of action to reach the 15K is NOT PERMITTED; each separate cause of action is considered separately though joined in 1 suit
EXCEPTION: claims may be combined to confer jurisdiction in the circuit court when all arise from the same transaction or occurrence
There is ALSO authority for the proposition that a PLAINTIFF can bring, against a given defendant, a claim for less than 15K along with a claim for more than 15K even though the two claims are unrelated
7
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal Jurisdiction
Florida Bases of Personal Jurisdiction
Long Arm Statute
A
As to a claim for relief arising from doing any of the acts enumerated below, a natural person, corporation, partnership or unincorporated association who, either directly or through an agent:
***(ii) Commits a tortuous acting within FL (Note: a defendant who sends tortuous telephonic, electronic, or written communications into FL commits a tortuous act within FL for purposes of long arm jurisdiction
8
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Service of Process
A
Generally to acquire jurisdiction there must be service of process that (i) is authorized by statute or rule and (ii) meeting constitutional due process requirements of notice
Summons by the clerk of the court or judge – done automatically by the clerk when the initial pleadings is filed and a copy of the complaint are delivered to the sheriff or process server.
SIGNATURE AND DUE DILIGENCE REQUIRED – signed by clerk or judge w Court seal and the plaintiff must use due diligence in seeing that service on the defendant is made promptly
9
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Service of Process
By Whom Made
A
Sherriff, special process server appointed by the sheriff OR any person over the age of 18 WHO IS NOT A PARTY or otherwise itnerested in the outcome of the case and who is specially apppointed by the court to serve process
“ELISOR” - court’s appointee to serve process when the sheriff is unable to do so
formal service of process by a sheriff or person appointed to serve papers or by publication can be waived upon request and replaced with service by mail
10
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Service of Process
Time
A
NO SERVICE ON SUNDAY unless the plaintiff by affidavit states that he has reason to believe the defendant will “ESCAPE FROM THE STATE UNDER PROTECTION OF SUNDAY”
11
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Service of Process
Alias Summons and Pluries Summons
A
Alias: when a summons is not served for whatever reason and a second summons is issues, the second summons is the alias summons
pluries: a third or subsequent summons is termed a pluries summons
No motion to issue process is required when the return from the first process issued shows service was not perfected, but a motion is required when the earlier process has NOT been returned to the clerk’s office
12
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Service of Process
Time Limit
A
Unless good cause or neglect is shown, a summons must be served on a defendant within 120 days of filing the initial pleading directed to that defendant
if deadline is not met, the court may direct that service be made within a specified time, dismiss the cause against the defendant without prejudice, or drop the defendant as a party — this is true regardless of whether the defendant files a motion to dismiss for noncompliance of this rule
13
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
Substitute or Abode Service
A
An individual may also be served leaving a copy o the summons and complaint at his usual place of abode with any person residing therein age 15 or older and informing that person of the contents
usual place of above means the place where the defendant is actually living at time of service
14
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
Service on Spouse
A
Service may be on spouse of the person to be serviced if the action is NOT an adversary proceeding between spouse and person to be served, the spouse requests such service and the spouse and person served are residing together in the same dwelling
15
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
Service on Tenant in Action for Possession of Residential Premises
A
ESSAY
In an action for possession of residential premises if the tenant cannot be found in the county or there is no person 15 years of age older residing at the tenants usual place of abode in the county after at least attempts 6 hrs apart then service may be made by attaching process to a conspicuous place on property and by clerk thereafter mailing a copy of the summons and complaint by first class mail to the defendant at the premises involved
16
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
On a Partnership
A
Service can be made by delivery of process to any partner and is as valid if served on each individual partner
if a partner is not available during reg biz hours, she may designate an employee to accept
after one attempt to serve a partner or designated emloyee has been made process may be served on the person in charge of the partnership during regular business hours
17
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
On a Corporation
A
Service on Registered Agent
On Corporate head or other agent in Descending order
- president VP or head
- cashier treasurer secretary or gm
- any director
any officer or biz RESIDENT of fl
if a foreign corp has none in FL process may be served on any agent transacting bis for it while within state
18
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
On a Corporation
Foreign Corporation Doing Biz in FL
A
When a corporation engages in SUBSTANTIAL and not isolated activities within FL, OR has a business office within the state and is actually engaged in the transaction of business therefrom, service on any officer or business agent, WHILE ON CORPORATE BUSIENSS WITHIN THIS STATE, may be personally made.
It is NOT necessary in such a case that the proceeding against the corporation shall have a risien our of any transaction or operation connected with or incidental to the business being transacted within the state
19
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
On a nonresident, natural person, partnership, foreign cor or former Resident who operates a business or has an office in FL
A
If a nonresident person, a partnership composed of nonresidents, a foreign corporation, or a FL resident who subsequently becomes a nonresident or conceals his whereabouts has accepted the privilege of engaging in buisness in FL or having an office or agency in FL, that person or entity thereby appoints the secretary of state as his agent on whom all process may be served in an proceeding against him arising out of any trasnaction cnnected with or incidental to the business.
Minimum contacts are satisfies because the cause of action must arise out of the business being done within the state
20
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
On a nonresident, natural person, partnership, foreign cor or former Resident who operates a business or has an office in FL
Substituted Service
A
Sub service may be made on the secretary of state as an agent of such persons or entities with:
(1) notice by registered or certified mail to the defendant outside FL OR
(2) service personally to the def outside FL by a public officer authorized to make service by FL or by the state where service is made
21
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Personal service
Under General Long Arm Statute
A
Service under the long arm statute may be made out of state in the same manner as service is authorized in FL, by any officer authorized to serve process in the state where the person is served. No order of court is required.
The statute required that service on person outside the country may have to conform to certain international standards.
22
Q
JURISDICTION AND RELATED MATTERS
Jurisdiction over the Person or Res
Service by Mail
A
WAIVER
A plaintiff can request a defendant to waive formal service of process by a sheriff or person appointed to serve papers or by publication and to accept service by mail
acceptance of service by mail does not waive any objection to venue or personal jurisdiction
if a def is served by mail after waiving her right to personal service she has 60 DAYS from the date of the requested waiver to respond to the complain
23
Q
JURISDICTION AND RELATED MATTERS
Venue
A
DEFENDANT
Venue refers to the location within FL of a lawsuit. that is, assuming jurisdiction over the subject matter, a valid juridictional basis for an in personam or in rem action, and valid service, venue determines the county in which the action may be brought
24
Q
JURISDICTION AND RELATED MATTERS
Venue
Where transitory Actions may be Brought
A
Any action not subject to the local action rule is designated transitory
local action - where property located
25
JURISDICTION AND RELATED MATTERS
Venue
Where transitory Actions may be Brought
General Rule - Residents of FL
If the def is a resident, venue exists only in the county in which any defendant resides at the time the action is commenced where any cause of action accrued or in which the property in littigation is located
26
JURISDICTION AND RELATED MATTERS
Venue
Where transitory Actions may be Brought
Multiple Defendants who Reside in Different COunties
If multiple in different counties, venue exists in the county of residence of any one of them
27
JURISDICTION AND RELATED MATTERS
Transfer of Actions = Motion to Change Venue
Method of transfer
$$$$
When plaintiff files suit in wrong court or county ----- Service charge must be paid by the party who commenced the action within 30 days from the date order of transfer is entered. If NOT paid wthin 30 DAYS,, the court must dismiss WITHOUT PREJUDICE.
Where DEF coutnerclaim / cross claim exceeds the subject matter of court -- clerk fee is transferred , and the failure to pay that clerk fee will result in reduction or elimination of the counterclaim to the amount within the jurdiiction of the first court
28
JURISDICTION AND RELATED MATTERS
Choice of Forum
Time For Filing
A motion to dismiss based on forum non convenes must be served no later than 60 DAYS after service of process of moving party
29
JURISDICTION AND RELATED MATTERS
Waiver (don't use it u lose it)
Some matters are waived if not raised on first opportunity -- subject matter jurisdiction cannot be waived
SMJ -NEVER -- can be raised any time up to and through appeals
Jurisdiction over the Defendant (or Property) PJ- YES
An object to the basis of jursidiction is waived if NOT raised in the defendants first response to the complain ,whether that be an answer or a pre-answer motion. However, a motion to transfer venue filed simultaneously with a timely assserted object to PJ does NOT waive the jurisdiction objection
Service of Process - YES
A challenge to the sufficiency is waived if NOT raised in def 1st response to complaint, whether that be in his answer or pre-answer motion
Venue - YES
The question of proper venue is waived if NOT waived in defendant's first response to complaint, whether that be the answer or motion to dismiss made prior to the answer
30
PLEADINGS
In General (7)
```
Complaint
Answer
Reply
Third Party Complaint
Third Party Answer
Answer to a Counterclaim
Answer to a Cross Claim
```
A counterclaim or cross claim is raised ,if at all, in an answer
31
PLEADINGS
In General (7)
Motion
A motion is NOT a pleading, it is an application to the court for an ORDER.
32
PLEADINGS
In General (7)
Ultimate Fact Pleading
In contract to the very liberal "notice pleading of the FRCP, the FLorida rules are a bit more rigorous and REQUIRE a STATEMENT of "THE ULTIMATE FACTS SHOWING THAT THE PLEADER IS ENTITLED TO RELIEF"
One must plead facts rather than conclusions of law. Statement of facts can be general rather than highly details
33
PLEADINGS
Claim for Relief
Contents
Contains a complaint, counterclaim third party complaint and cross claim
Each CLAIM for relief should contain:
(i) a short plain statement of the grounds for jurisdiction
(ii) a short plain statement of the ultimate facts showing that the pleader is entitled to relief
AND
(iii) a DEMAND FOR JUDGMENT for the relief to which the pleader deems himself entitled, which may be in the alternative or of several different types -- ASK FOR REMEDY
34
PLEADINGS
Special Pleading
Fraud Or Mistake
Circumstances that establish fraud or mistake MUST BE STATED W PARTICULARITY
Conditions Precedent
The performance of conditions may be alleged generally. DENIAL OF PERFORMANCE or occurrence must be made specifically and with particularity.
35
PLEADINGS
Defense Motions
Motion To Strike
A motion to strike is available when a pleading is redundant or contains material or scandalous matter. This motion can be made AT ANY TIME.
36
PLEADINGS
Defense Motions
Motion To Strike SHAM Pleading
Available when a party asserts that all or part of an opposing pleading is a sham. Thi mtion may be made AT ANY TIME BEFORE THE CASE IS SET UP FOR TRIAL. Must be verified and set forth all the facts relied upon. Court can take testimony to determine whether to grant. If granted, the court may enter a default or summary judgment or permit additional pleadings for cause shown
***Bribery or Paternity suits before being elected for office
37
PLEADINGS
Defense Motions
Motion for Judgement on the Pleadings (complaint, answer)
Available AFTER THE PLEADINGS ARE CLOSED (to test sufficiency of p's pleadings, not the factual support of allegations), but not so late as to delay trial.
38
PLEADINGS
Defense Motions (7)
Every defense in law or fact to a claim for relief in a pleading must be asserted in the RESPONSIVE pleading, if one is required, but the following defenses may be made - at the option of the pleader - by a PREANSWER MOTION:
(i) Lack of SMJ
(ii) Lack of PJ
(iii) Improper Venue
(iv) Insufficiency of Process
(v) insufficiency of Service of Process
(vi) failure to state a cause of action upon which relief can be granted (including an affirmative defense on the face of the claim); and
(vii) failure to join an indispensable party
39
PLEADINGS
Defense Motions (7)
Defense Motions Treated as Motions to Dismiss (6)
All below is a Motion to Dismiss ::: (NOT VENUE)
(i) Lack of SMJ
(ii) Lack of PJ
(iv) Insufficiency of Process
(v) insufficiency of Service of Process
(vi) failure to state a cause of action upon which relief can be granted (including an affirmative defense on the face of the claim); and
(vii) failure to join an indispensable party
40
PLEADINGS
Defense Motions (7)
Responsive Pleading
If the court denies a defense motion or postpones disposition until a trial, a responsive pleading must be filed WITHIN 10 DAYS AFTER NOTICE of the courts action, unless a different time is fixed by court
41
PLEADINGS
Defense Motions
Consolidation of Defenses in Motion
If any motion is made on any of the grounds listed (7 defense motions) all such defenses or objections then available MUST BE RAISED
(ii) failure to state a cause of action, failure to join an indispensable party and failure to state a legal defense MAY BE RAISED in ANY pleading, by motion for judgement on the pleadings or at TRIAL on the merits DESPITE any previous motions made
42
PLEADINGS
Defense Motions
Waiver
The following defenses are WAIVED if not raised by the defendnant in his first response to the comaplin -- i.e., in his answer or preanswer motion
(i) lack of jursidiction over the person
(ii) improper venue
(iii) insufficiency of process AND
(iv) insufficiency of service of process
43
PLEADINGS
Answer
Affirmative Defense
Affirmative Defenses must be specifically pleaded:
(i) accord and satisfaction
(ii) arbitration and award
(iii) assumption of risk
(iv) comparative negligence
(v) discharge in bankruptcy
(vi) duress
(vii) estoppel
(viii) failure of consideration
(ix) fraud
(x) illegality
(xi) injury by a fellow employee
(xii) laches
(xiii) license
(xiv) payment
(xv) release
(xvi) res judicata
(xvii) statute of Frauds
(xviii) statute of limitations
(xix) waiver
(xx) and any other matter constituting an avoidance or affirmative defense
However, doesn't need to be specifically pleaded if papers on face of a prior pleadings and the defense is asserted as the basis for dismissing that pleading for failure to state a cause of action
44
PLEADINGS
Answer
Time
Within 20 days after service of the pleading comtaining the claim to which the answer is made
EXCEPT:
(i) if a PREANSWER MOTION to dismiss or for a more definite statement is DENIED OR POSTPONED FOR TRIAL, the time to answer is 10 DAYS AFTER THE COURTS ORDER
(ii) if a PREANSWER MOTION for a more def statement is GRANTED, the time to answer is 10 DAYS AFTER SERVICE OF THE MORE DEF STATEMENT
(iii) if the court permits or required THE FILING OF AN AMENDED OR MORE RESPONSIVE PLEADING, this pleading MUST BE SERVIED WITHIN 10 DAYS OF NOTICE OF THE COURTS ACTIONS. Any response to this pleading must be filed WITHIN 10 DAYS OF THE SERVICE OF IT
45
PLEADINGS
REPLY
Whether a party must file a reply to answer depends on whether he waints to raise new matter in response to the affirrmative defense.
If the answer contains an affirmative defense and the opposing party wishes to avoid the legal effect of the affirmative defense with new matter, a reply is REQUIRED. If the opposing party doesntseek to avoid the affirmative defense with new matter, no reply required and after factual allegations containd in affirmative defense are deemed denied
46
PLEADINGS
Amendment
A pleading may be amended ONCE BEFORE a resonsive pleading is serviced, or if no responsive pleading is required, and the action has not been placed on trial calendar, WITHIN 20 DAYS of service of the pleading. A party filing a motion to amend a pleading must attached the proposed amended pleading to the motion
47
PLEADINGS
Amendment
relation back
Amendments relate back to the date of the original pleading when the CONDUCT, TRANSACTION OR OCCURANCE set forth in the amended pleading was set forth or attempted to be set forth in the original pleading.
When SOL has run ***
SOL DOES bar causes of action in the amended pleading that are NEW AND DISTINCT from those in the original pleading
48
PLEADINGS
Counterclaims
Compulsory (Use it or lose it)
Any claim that a pleader has against the opposing party which arises out of the same TRANSACTION OR OCCURANCE as the pleading responded to MUST BE ASSERRTED at the time of the servive of a responsive pleading or it is lost forever
49
PLEADINGS
Counterclaims
Permissive
A counterclaim is deemed permissive and therefore MAY but NEED NOT be asserted if it is based on a claim NOT arising out of the same Transaction or Occurance as the pleading responded to
50
PARTIES
Capacity
Whether a person may or may not be sued
51
PARTIES
Capacity
Minors and Incompetents
A minor (under 18) or incompetent MAY sue and be sued ONLY through a guardian or like fiduciary. If he has no guardian, he may sue through A NEXT FRIEND or a guardian ad litem. If not represented by a next friend or guardian ad litem, the court may appoint a guardian ad litem or make such other order as it deems proper for his protection
52
PARTIES
Intervention (Self Inflicting) & Time
Where a NONPARTY enters the case on his OWN MOTION
NOT COMPULSORY
Discretionary with a court whether to permit the intervention
TIME:
Jury Trial -- any time up to the verdict
Non- Jury Trial - any time up to final judgement
Intervention after judgement for purposes of appeal has been allowed in exceptional cases
53
PARTIES
Interpleader
Device by which persons having conflicting claims against a stakeholder may be joined as defendants and required to interplead so that the stakeholder may avoid exposure to DOUBLE LIABILITY
** insurance companies -- steak w dogs
May be used by plaintiff or defendant
54
PARTIES
Impleader - Third Party Practice
Decide a DEFENDANT may use to bring a person not a party to the action who is or may be liable to the defendant for all or part of the plaintiffs claim against her. She does so by filing a third party complaint and having it served upon the third-party defendant
Note: avaialble to a defending party of any claim, including a counter cliam corss claim or third party claim -- SO A PLAINTIFF COULD ALSO IMPLEAD
55
PARTIES
Impleader - Third Party Practice
Motion
NO MOTION NECESSARY IF the defendant files the TPC within 20 DAYS of filing her answer. Otherwise, a motion is necessary and depends on the discretion of the court
56
PARTIES
Class Actions
FL requires specific pleading requires and notice to class members in all class actions
57
PARTIES
Class Actions
Dismissal or Compromise
A claim or defense may not be voluntarily dismissed or settled WITHOUT JUDICIAL APPROVAL after NOTICE to all members of the class
58
PARTIES
Class Actions
Homeowner Condo and Mobile Homeowner Associations
A homeowner, condominium or mobile HOA may sue in its name on behalf of all association members concerning matters of common interest -- common elements and the representations of the developer pertaining to any existing or proposed commonly used facilities
59
PARTIES
Substitution
Public Officers -- Death or Leaving Office
Substitution of a party may occur when an original party or by successors or reps of the deceased , the proper party may be substituted in an action already commenced
When a pub officer is sued in her OFFICIAL capacity , AUTOMATIC SUBSTITUTION if the officer dies or leaves offices. Names may be changed at any time. Any misnomer in the papers not affecting substantial rights is disregarded
60
DISCOVERY
Experts
Facts known and opinions held by experts and acquired or developed in anticipation or for trial can be discovered in a 2 step procedure.
Step 1: Interrgatories directed to the opposing counsel re (1) identity and (2) substance of facts and opinions and summary of grounds for opinions to which he will testify
Step 2: discovery directed at the exper, only upn notice, subject to an order concerning scope, and: (1) the court shall require a PAYMENT OF A FEE for experts time in responding and (2) court MAY REQUIRE the requesting party to share the cost of the experts prep for responding with the party retaining the expert
61
DISCOVERY
Experts
Extent of Relationship w Expert
Can obtain discovery regarding the extent of opposing party's relationship w an expert (how often expert testifies on that party' behalf and how much money the expert makes from her relationship w that party) BUT CANT ASK HOW MUCH EXPERT MADE LAST YEAR
62
DISCOVERY
Income Tax Returns
NOT DISCOVERABLE from the IRS, but MAY BE DISCOVERED from the taxpayer where relevant to the subject of the action
63
ORAL DEPOSITIONS
Any party may depose anyone
Any PARTY may depose any PERSON by giving to all parties the REASONABLE NOTICE of deposition specifying time and place and the name and address of the person to be deposed
64
ORAL DEPOSITIONS
Any party may depose anyone
A PARTY by Notice
If the deponent is a party or an officer director or managing agent of a party, the notice is enough to compel attendance
65
ORAL DEPOSITIONS
Any party may depose anyone
NONPARTY by Subpoena
If nonparty, can only compel attendance by subpeana. The subpeana must state methods for recording the testimony.
Employees of a party (other than officers or managing agents) are NONPARTIES
66
ORAL DEPOSITIONS
Any party may depose anyone
NONPARTY by Subpoena
Who may be compelled to appear?
Subpoena's can compel attendance:
(a ) OF A RESIDENT OF FL: only in the county where the deponent resides, is employed, or transacts business in person, and
(b) OF A NONRESIDENT OF FL: only in the county where the deponent was served or other convenient place as fixed by order of the court
67
ORAL DEPOSITIONS
Any party may depose anyone
NONPARTY by Subpoena
Who may be compelled to appear?
Subpoena Duces Tecum
A subpoena can be duces tecum, compelling the deponent to bring along papers and documents for inspection and copying
she the person subpoenaaed object to the inspection and copying, he may do so in writing, in which case there shall be no inspection and copying WITHOUT A COURT ORDER
68
ORAL DEPOSITIONS
Any party may depose anyone
Place
The PLAINTIFF is usually required to go where the action is pending for her deposition if she does not reside there.
The DEFENDANT's deposition is usually taken at her county of residence or business if it differs from the venue of the action
A CORPORATE DEFENDANT deposition is usually taken at its principal place of business.
A NONPARTY WITNESS can be taken in any county in FL where the witness may be validly served or anywhere else in the US by using the subpoena power of an appropriate court at that place
Depos can be taken outside US by following a procedure terms leters rogatory
69
ORAL DEPOSITIONS
Time
When Complaint has Been Filed
A depo may be noticed without court order by a DEFENDANT at any time after service.
a PLAINTIFF may NOT take a deposition WITHIN 30 DAYS after service of the complaint EXCEPT
(i) with leave of course; OR
(ii) without leave if the notice states taht the persn examined will go outside t reach of the subpoena power before the 30 day period ends
70
ORAL DEPOSITIONS
Time
BEFORE Complaint Has Been Filed -- Court Order (Motion to Perpetuate Testimony)
A person wishing to perpetuate her own testimony or that of another person regarding any matter cognizable but not yet filed in FL court may upon verified petition obtain a court order for oral or written deposition. Service must be made upon ALL expected adverse parties and the person to be deposed, following rules of service of process. The motion will be granted if the court is satisfied that perpetuation of testimony may prevent a failure or delay of justice.
71
ORAL DEPOSITIONS
Videotape Depositions
Oral depositions by videotake are authorized without order of the court.
The NOTICE MUST STATE that the deposition will be recorded by videotape and must give the name and address of the operator.
The Deposition MUST BE STENOGRAPHICALLY RECORDED, unless otherwise agreed by parties
72
WRITTEN DEPOSITIONS
Affirmative Use (added to evidence as substantive)
The deposition may be used affirmatively if:
(1) the deponent was an adverse party or an officer, director or managing agent of an adverse party, or person designated by an adverse party organization to be deposed;
92) the deponent, whether or not a party:
(i) is dead;
(ii) is farther than 100 miles from the place of trial or outside the state of FL and thus beyond the subpoena power of the court UNLESS the party offering the deposition procured the absence;
(iii) is unable to attend or testify because of age, sickness infirmary, or imprisonment
(iv) is unable to be found for the purpose of being subpoenaed or having been subpoenaed, refuses to come; or
(v) is an EXPERT OR SKILLED WITNESS, EVEN IF SHE IS AVAILABLE
73
ORAL DEPOSITIONS
Use of Depositions
Contradiction or Impeachment
A deposition may be used against the deponent - no matter what her status - for contradiction or impeachment purposes, or for any purpose permitted by the Florida Evidence Code
74
ORAL DEPOSITIONS
Use of Depositions
Use of Part of Deposition
If only part of a deposition is offered by a party any adverse party may require him to introduce any other part that ought to be considered for fairness
75
ORAL DEPOSITIONS
Use of Depositions
Depositions May Be used in Later Proceedings
If a case has been dismissed in any court of the US or any state and another action involving the same subject matter is brought between the same parties, all depositions filed in the former action may be used in the latter to the same extent as if such depositions had been taken in the latter
76
INTERROGATORIES TO PARTIES (ONLY)
Only Against A Party
One party may serve another party, whether or not adverse, with written questions to be answered, in writing, under oath, WITHIN 30 DAYS after service of the interrogators (except a DEFENDANT has at LEAST 45 DAYS to respond after service of the complaint)
77
INTERROGATORIES TO PARTIES (ONLY)
Number of Interrogatories Permitted
30 (used to be 25)
78
REQUEST FOR PRODUCT OR INSPECTION -- Documents and Land
Request for Production or Inspection from NONPARTY BY SUBPOENA
A party by subpoena may seek inspection and copying of documents or things from a NONPARTY without taking a deposition.
The subpoena may require production ONLY IN THE COUNTY in which (1) the person in possession of the document/thing resides or usually conducts business or (ii) the documents or things are located
79
REQUEST FOR PRODUCT OR INSPECTION -- Documents and Land
Request for Production or Inspection from NONPARTY BY SUBPOENA
Notice to Other Parties
A party who seeks production without taking a depo MUST GIVE NOTICE to ALL OTHER PARTIES of his intent to serve a subpoena on a nonparty at least 10 DAYS BEFORE THE SUBPOENA IS ISSUED if service is by DELIVERY, OR 15 DAYS before the subpoena is issued by service is to b by MAIL OR EMAIL
80
REQUEST FOR PRODUCT OR INSPECTION -- Documents and Land
Request for Production or Inspection from NONPARTY BY SUBPOENA
Costs
The nonparty may condition the prep of copies on payment in adv of reasonable costs in prep of copies
81
ENFORCEMENT AND SANCTIONS
Depositions, Oral and Written -- Nonparty Deponent
Failure of Party Given Notice To Attend
The court may order a party who fails to attend a deposition for which she had notice to pay any other party who attended in person or through counsel the reasonable expenses incurred by him attending including attorneys fees
82
ENFORCEMENT AND SANCTIONS
Depositions, Oral and Written -- Nonparty Deponent
Failure of Party to Serve Subpoena on Witness
Sanctions above may be ordered when a party fails to serve a subpoena on a witness who subsequently fails to attend the deposition and another party attend expecting the depo to be taken
83
PRETRIAL
Pretrial Conference
When
After the case is at issue (all issued fleshed out by pleadings, summary judgment if asked by party), the court itself MAY or on timely motion of a party SHALL require the parties to appear for a pretrial conference ON AT LEAST 20 DAYS NOTICE
84
PRETRIAL
Pretrial Conference
Consequences of Failure to Attend Conference
For the failure of a party or party's attorney to attend a conference, the court may DISMISS THE ACTION, STRIKE THE PLEADINGS, LIMIT PROOF OR WITNESSES, or TAKE ANY OTHER APPROPRIATE ACTION. A severe action such as dismissing the case or striking the pleadings must be preceded by a finding that the failure to attend was WILLFUL.
85
TERMINATION WITHOUT TRIAL
Default Judgement ****
The default judgement applies to ALL claims seeking affirmative relief, whether a plaintiffs claim,, counterclaim, cross claim or third-party claim
86
TERMINATION WITHOUT TRIAL
Default Judgement ****
Ground
The ground for the rendition of a default judgement is failure to appear -- i.e., answer or otherwise defend.
Note: the recovery cannot exceed or be different in kind than that prayed for.
87
TERMINATION WITHOUT TRIAL
Default Judgement ****
Entry of Default
Motion
The party seeking default moves that the CLERK or COURT, as need be, enter the default.
Until the default is entered, the opponent can still plead or defend (late).
If the defendant has filed NO PAPERS AT ALL, the CLERK may enter default. Otherwise, it MUST be entered by the COURT upon notice of the application for default.
An entry of default on the docket precludes the defendant from pleading or defending further.
88
TERMINATION WITHOUT TRIAL
Default Judgement ****
Entry of Default
Notice
If the defendant has filed ANY PAPER in the action, she shall be served with NOTICE of the application for default.
89
TERMINATION WITHOUT TRIAL
Default Judgement ****
Final Judgement
Judgement upon default is entered by the COURT (the judge)
No default judgement may be entered against a minor or incompetent UNLESS he is represented by someone who has appeared
The Court may conduct a hearing and take evidence to establish the truth of any averment and amount of damages as it deems necessary and proper- including protection of the right to jury trial.l. The defendant shall receive NOTICE of any such hearing.
90
TERMINATION WITHOUT TRIAL
Involuntary Dismissal
Grounds
A COURT may dismiss the plaintiffs case involuntary for FAILURE TO PROSECUTE, or failure to comply with the rules or any order of the court, including local rules
91
TERMINATION WITHOUT TRIAL
Involuntary Dismissal
Dismissal for Failure to Prosecute (done without Prejudice)
If it appears on the face of the record that NO ACTIVITY (by way of filing pleadings, order of court or otherwise) has occurred in a case for 10 MONTHS, and no order or stipulation staying the action has been issued or approved by the court, ANY INTERESTED PERSON OR THE COURT may service notice to all parties that no record activity has occurred. Then, if no record activity occurs within 60 DAYS after the notice is served, and no stay was issued or approved prior to the expiration of the 60 day period, the ACTION WILL BE DISMISSED FOR LACK OF PROSECUTION, UNLESS a PARTY shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.
92
TERMINATION WITHOUT TRIAL
Summary Judgement
Function
The PURPOSE of a motion for summary judgement is to pierce the pleadings to determine whether there is credible factual support for a party's claim. When a summary judgement motion is make, the court will not weight conflicting stories to determine which is true, rather, it will determine IF THERE IS A GENUINE ISSUE OF MATERIAL FACT TO BE RESOLVED BY THE TRIER OF FACT
93
TERMINATION WITHOUT TRIAL
Summary Judgement
Standard
A motion for summary judgement will be granted where THERE IS NO GENUINE ISSUE OF MATERIAL FACT SO THE MOVING PARTY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW
94
TERMINATION WITHOUT TRIAL
Summary Judgement
Time
A CLAIMANT may move for summary judgement at any time after 20 DAYS from the commencement of the action, OR after service of a motion for summary judgment by an adverse party.
A DEFENDING PARTY may move at any time.
The motion must be SERVED AT LEAST 20 DAYS before the hearing on it.
The original motion should be FILED with the court either before service or immediately thereafter.
The notice of the hearing date, once set, must be served a reasonable time before the hearing. However service of the notice of hearing is not itself subject to the above requirement that there must be at least a 20 day delay between service of the motion for summary judgement and the hearing on it.
95
TERMINATION WITHOUT TRIAL
Summary Judgement
Partial
The summary judgement may be partial (i.e., as to the issue of liability but not damages) as well as complete.
96
TERMINATION WITHOUT TRIAL
Summary Judgement
Affidavits
Can Use in Summary Judgement as support
Must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show the affiant is competent to testify.
97
TRIAL BY JURY
Functions of Judge and Jury
Questions of Law and Fact
Where there is a jury --
Questions of Law -- Judge decides
Questions of Fact- - Jury Decides
Whether the evidence is substantial enough to go to ta jury is a question of LAW.
98
TRIAL BY JURY
Right to Jury Trial
Demand for Jury
Withdrawal
Once a demand is made, it may not be withdrawn without the consent of ALL parties
99
TRIAL BY JURY
Right to Jury Trial
Selection of Jury
Number
In CIVIL -- 6, plus alternates, except in condemnation actions, where 12 are required
100
TRIAL BY JURY
Right to Jury Trial
Selection of Jury
Selected form Panel
Challenges -- Peremptory
3 Peremptory challenges in CIVIL cases, to each party
Plus 1 peremptory challenge for every alternate but usually only against alternates
where the number of parties is NOT in balance (3 plaintiffs and 2 defendents) the LARGER number of peremptory challenges (9 in this example) may be made by EACH side
101
TRIAL BY JURY
Trial
Notice for Trial
After all pleadings are served and motions directed to those pleadings disposed of (or 20 days have gone by since the last pleading and no motion has been filed), ANY PARTY may file an serve notice that the case is at issue and ready for trial.
TRIAL SHALL NOT BE HELD LESS THAN 30 DAYS FROM THAT NOTICE.
Filing the notice for trial precludes the dismissal of the case for failure to prosecute despite the lack of record activity during the ensuing year, with that filing the burden to proceed with the court.
102
TRIAL BY JURY
Trial Motions
Motions to Strike Evidence
If evidence is admitted that a party believes is inadmissible, he may move to have it stricken. Such a motion should be made IMMEDIATELY during the testimony or IMMEDIATELY AFTER it has been given.
Note: a motion to strike is NOT a substitute for an objection. An objection should be made when a question is asked or when evidence is proffered. Once the question is answered or the evidence is admitted, the proper procedure is to strike.
103
TRIAL BY JURY
Trial Motions
Motion for Mistrial
A motion for mistrial is made on the ground that during trial some statement or act on the party f a participant (party, attorney, juror, judge, courtroom attendant) is so PREJUDICIAL that in all probability it would be impossible to have a fair and impartial trial. the motion is directed to the sound discretion of the trial JUDGE, and the ruling will NOT be reversed absent a clear ABUSE OF DISCRETION.
104
TRIAL BY JURY
Trial Motions
Motions to View Scene
On a motion by EITHER PARTY, a jury may be taken to view the premises or other tangible things relating to the controversy. The party making the motion must advance a sum sufficient to defray the expenses of a jury and the officer who attends them in taking the view. These motions are rarely made and rarely granted EXCEPT in EMINENT DOMAIN suits, where they are customary in FL
105
TRIAL BY JURY
Trial Motions
Directed Verdict
A party may have a right to a jury trial, BUT this does not necessarily include the right to have a jury render a verdict in the suit. That right exists ONLY IF THERE IS SOMETHING FOR THE JURY TO DECIDE -- i.e., IF THE EVIDENCE IS SUFFICIENT TO ALLOW THE JURY TO PROPERLY ENTER A VERDICT IN FAVOR OF EITHER PARTY.
On the theory that there is nothing for the jury to decide, EITHER PARTY may move for a directed verdict AT THE CLOSE OF EVIDENCE OF THE OTHER SIDE. If the motion is denied, the case goes on; if granted the matter is res judicata.
106
TRIAL BY JURY
Trial Motions
Directed Verdict (DURING TRIAL)
Test
A directed verdict in favor of the moving is appropriate if, considering only the evidence in favor of the nonmoving party and drawing all reasonable inferences therefrom in her favor, the judge concluded that no reasonable jury could return a verdict in favor of the nonmoving party.
107
TRIAL BY JURY
Trial Motions
Directed Verdict (DURING TRIAL)
Relationship to Belated Directed Verdict
There is no longer a need to renew a motion for a directed verdict at the close of all evidence. a party is restricted in his belated directed verdict motion to the grounds raised in his directed verdict motion.
A belated directed verdict motion must be filed and served within 15 days after the verdict.
NOTE: what FL calls a belated directed verdict motion is called a "renewed motion for judgement as a matter of law" by the federal courts and is frequently referred a a motion for judgement notwithstanding the verdict (JNOV)
108
TRIAL BY JURY
Trial Motions
Directed Verdict (DURING TRIAL)
No Waiver of Jury Trial
Motion for directed verdict before verdict is NOT a waiver of jury trial.
When granted, the jury plays no role.
109
TRIAL BY JURY
Verdicts
Punitive Damages
Burden of Proof
TORT (4 essay)
Plaintiff must establish his entitled to award of punitive damages by Clear and Convincing Evidence
110
TRIAL BY JURY
Verdicts
Punitive Damages
Conduct Required for Liability
Individual Defendants
Intentional misconduct or gross negligence
111
TRIAL BY JURY
Verdicts
Punitive Damages
Limitations on Amount
EXCEPT AS PROVIDED BELOW, punitive damages may not exceed the GREATER of 3x the amount of compensatory damages awarded to each claimant or $500K
EXCEPTIONS:
Intoxication -- there is NO CAP on punitive damages if at the time of the act or omission for which punitive damages are sought, the defendant was under the influence of any alcoholic beverage or drug to the extent that the defendants normal faculties were impaired or the defendant had a blood or breath alcohol level of .08% or higher
112
TRIAL BY JURY
Verdicts
Polling the Jury
After the verdict is returned, the LOSING PARTY may have the jury polled , each individual juror questioned as to his or her verdict
113
TRIAL BY JURY
Verdicts
Post-Verdict Interview of Jurors
Something happened in jury deliberations
A party who believes that grounds for legal challenge of a verdict exist may move for an order permitted an interview of a juror or jurors to determine whether the verdict is subject to challenged. The motion must be served within 15 days of the verdict, except for good cause shown. The motion is to state the grounds for challenge that the party believes to exist. The interview may take place only upon order of the court, and the court may prescribe the place manner and conditions and scope of the interview
114
TRIAL BY JURY
Post-Trial Motions
New Trial (15 days after return of verdict)
Specific Grounds
Can be predicated on a variety of specific grounds:
(i) jury grounds: improper impaneling, juror misconduct, tampering, improper verdict;
(v) error in instructions
(vii) newly discovered evidence that was not and with due diligence could not have been discovered prior to the end of the trial
(viii) excessive or inadequate damages
115
TRIAL BY JURY
Post-Trial Motions
Motion for Belated Directed Verdict
A motion for directed verdict AFTER THE VERDICT is more common called a JNOV or motion for belated directed verdict
116
TRIAL BY JURY
Post-Trial Motions
Motion for Belated Directed Verdict
Time
Must be in writing and filed and served within 15 days after the rendition of the verdict, or if no verdict entered, within 15 days after the jury was discharged
117
TRIAL BY JURY
Post-Trial Motions
Motion for Belated Directed Verdict
Condition Precedent
The party moving for a belated directed verdict must have previously and timely moved at the close of evidence offered by the adverse party, for a directed verdict.
A motion for a directed verdict the close of the evidence offered by the adverse party, if not granted, is reserved for decision after verdict. The grounds are limited to the grounds raised in the directed verdict motion made before the verdict
118
TRIAL BY JURY
Post-Trial Motions
Motion in the ALternative
A motion for a belated directed verdict or new trial in the alternative may be made within the same time limits and upon the same grounds as the separate motions.
same standard as directed verdict
malptractice not to do this
119
TRIAL BY JURY
Post-Trial Motions
Motion in Arrest of Judgment
A motion in arrest of judgement is, in effect, a post-verdict motion to dismiss for failure to state a cause of action. It can ONLY be filed by a DEFENDING party and MUST BE SERVED AFTER THE VERDICT IS RECEIVED, BUT PRIOR TO THE ENTRY OF JUDGMENT
120
JUDGMENT
Relief From Judgements
Motions for Belated Directed Verdict and New Trial
Motions for belated directed verdict and new trial may be filed and served up to 15 days after verdict in a jury case or 15 days after entry of judgement in an nonjury case
121
JUDGMENT
Relief From Judgements
Motion to Alter or Amend Judgment
A motion to alter or amend a judgment must be served no later than 15 days after entry of judgment
122
JUDGMENT
Relief From Judgements
Nonclerical Errors -- Motion to Set aside Judgement
Correction of nonclerical errors can be made only upon motion and upon such terns as are just:
WITIHIN 1 YEAR / AT ANY REASONABLE TIME
123
JUDGMENT
Relief From Judgements
Nonclerical Errors -- Motion to Set aside Judgement
Within 1 year
A motion for relief from FINAL judgments or orders may be filed within 1 year after judgement for
(1) mistake, inadvertence, surprise, excusable neglect;
(2) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; or
(3) fraud (whether intrinsic - inside the courtroom, eg, perjury; or extrinsic--outside the courtroom), misrepresentation, or other misconduct of adverse party
124
JUDGMENT
Relief From Judgements
Nonclerical Errors -- Motion to Set aside Judgement
At Any Reasonable Time (Means more than 1 year)
A motion for relief from judgements may be filed at any reasonable time when:
(1) the judgement is void;
(2) the judgement has been satisfied, released or discharged, a prior judgement on which it was based has been reversed or otherwise vacated or it is no longer equitable that the judgement have prospective application; or '
(3) a final divorce judgement was based on a fraudulent financial affidavit
125
EXECUTION
Reviving a Judgment
A judgement is valid for 20 years
To extend the life of the judgement, the plaintiff must bring an action based on the old judgment and obtain a new judgment, which effectively ends the life of the original judgment. this process used to be accomplished by seeking a writ of SCIRE FACIAS
126
MISCELLANEOUS
Service of Documents other than Process
Service by Other Means
When a PRO SE party does not designate an email address OR when an ATTORNEY is excused from email service by the court, service of documents other than process is made by DELIVERY to the party or attorney; or by MAILING to the party's or attorney's last known address.
If no address is known, docs are left with the clerk of court.
"Delivery" means:
(i) handing document to person
(ii) leaving it at his office with a locker or person in charge
(iii) leaving it in a CONSPICUOUS place at the office if no one is in charge;
(iv) if the person has no office or it is closed, leaving it at the persons abode with a FAMILY member older than 15 years of age and informing that member of the documents contents; or
(v) transmitting by fax, but the fax must be followed by delivery or a mailing as described above
127
MISCELLANEOUS
Subpoenas
Motions to Quash or Modify
A court may, on motion, quash or modify the subpoena if unreasonable and oppressive or condition denial of the motion upon the advancement by the party issuing the subpoena of the reasonable costs of producing the papers
128
MISCELLANEOUS
Time
Computation
Period Stated in Days or Longer UNit
Never include the date from which you begin counting. Count every day, including intermediate weekends and legal holiday. Always count the last day of the period. If the last day is a weekend or legal holiday, or if it falls within any period of time extended through an order of the chief justice, the period expires on the next day that is not a weekend, legal holiday or part of an extension. When the time prescribed is less than 7 days, do not count intermediate weekends or legal holidays.
129
MISCELLANEOUS
Time
Computation
Period Stated in Hours (Crim Law)
When in hours, begin counting immediately on the occurrence of the event that triggers the period, and count every hour (including hours during intermediate weekends and legal holidays). If the period would end on a weekend, legal holiday or part of an extension by order of the chief justice, the period continues to run until the same time on the next day that is not a weekend, legal holiday or extended period.
130
MISCELLANEOUS
Time
Computation
Definition of Last Day
Last day ends (i) at midnight for electronic filing or for service by any means; and (ii) when the clerk's office is scheduled to close for filing by other means
131
MISCELLANEOUS
Time
Computation
Additional Time After Service By Mail or Email
None
132
MISCELLANEOUS
Time
Enlargement
Any time prescribed may be enlarged by the court with or without motion if a request is made BEFORE the time expires.
If the request is made AFTER the time expires, a motion is REQUIRED and will be granted only for excusable neglect.
THE COURT MAY NOT EXTEND THE TIME FOR (and no judge as discretion here --- Rules Rule):
(i) motion for belated directed verdict
(ii) motion for new trial or rehearing
(iii) sua spont grant of new trial
(iv) motion for amendment of judgement
(v) motion for relief from judgement
(vi) notice of appeal or
(vii) petition for certiorari
133
MISCELLANEOUS
Disqualification of Judge (same as crim pro)
Grounds
ANY PARTY may move to disqualify the judge assigned both the action on any grounds provided by statute rule or code. Among the available grounds are:
* (i) party fears that she will not receive a fair trial because of specifically described prejudice or bias of the judge
* (ii) the judge the judge's spouse or someone related to the judge (within the third degree) has an interest in or is a party to the proceeding
(iii) the judge is a material witness in the case
* (iv) the judge's spouse or a person within the third degree of relationship to the judge participated as a lower court judge in a decision to be reviewed by the judge
The judge has authority to enter an order of disqualification on the judges own initiative
134
MISCELLANEOUS
Mediation Arbitration and Voluntary Trial Resolution
Exclusion From Mediation and Arbitration
EXCLUDED:
(i) bond estreatures
(ii) habeas corpus and extraordinary writes
(iii) bond validations; and
(iv) civil or criminal contempt
135
REMEDIES
Injunction
There are no provisions for Temperary Restratining Orders (TRS( under FL Law. However, there are procedures for temporary and permanent injunctions.
The right to a prompt hearing within 5 days of a party's motion to dissolve or modify a temporary injunction is also provided
Because it is an equitable remedy, it cannot be granted if there is an adequate remedy at law ($$)
136
REMEDIES
Injunction
Temporary Injunction
Without Notice
A temporary injunction may be granted WITHOUT written or oral notice to the adverse party ONLY IF:
(i) it appears from the specific facts shown by affidavit or verified pleading that IMMEDIATE AND IRREPARABLE injury, loss, or damage will result to the movant before the adverse party can be heard in opposition
(ii) the movant's attorney certifies in writing any effort that have been made to give notice ; and
(iii) the reasons why notice should not be required are stated
137
REMEDIES
Injunction
Temporary Injunction
Procedure
No evidence OTHER THAN THE AFFIDAVIT or VERIFIED PLEADING may be used to support the application for a temporary injunction, UNLESS the adverse party appears at the hearing or has received reasonable notice of the hearing.
138
REMEDIES
Injunction
Temporary Injunction
Bond
No temporary injunction may be entered UNLESS a bond is given by the movant in an amount the court deems proper, conditioned for payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined
139
REMEDIES
Declaratory Judgment
The circuit court may entertain an action to declare rights, status and other equitable for legal relations of the parties, whether or not further relief is or could the be claimed
This divide may also be used by one interested in and in doubt concerning any right construction interpretation application of any deed will contract or other writing
** insurance companies seek these to get out of liability
140
PROCEDURE IN MEDICAL MALPRACTICE CLAIMS
Pre-suit Procedure
Florida has adopted a detailed procedural framework for bringing medical malpractice claims against health care providers
141
PROCEDURE IN MEDICAL MALPRACTICE CLAIMS
Presuit Procedure
Presuit Investigation
Prior to issuing a notice of intent to sue, the claimant must investigate the grounds for the claim and obtain a WRITTEN OPINION BY A MEDICAL EXPERT verifying that reasonable claims for the claim exist.
Counsel must certify in any complaint that a reasonable investigation has taken place. The medical experts opinion obtained in the preset investigation is protected from any use by the opposing party, including impeachment of the expert who prepared the affidavit
142
PROCEDURE IN MEDICAL MALPRACTICE CLAIMS
Presuit Procedure
Notice of Intent to Sue
At least 90 days before filing, and prior to the expiration of the SOL, a claimant must notify each prospective defendant by certified mail, return receipt requested that he intends to sue.
However, an acknowledged receipt of timely written notice of intent to sue that was not sent by certified mail is sufficient if it results in no prejudice to the defendant. Additionally, notice to a defendant who has a legal relationship to another defendants acts as notice to both
143
PROCEDURE IN MEDICAL MALPRACTICE CLAIMS
Presuit Procedure
Presuit Screening Process by Defendant
During this 90 day period, a defendant's insurer must evaluate the claim with the assistance of experts, such as a panel composed of a medical malpractice attorney, a health care provider in the same field and a qualified claims adjuster
By the end of the 90 days the insurer must deliver to the claimant either (i) a rejection of the claim (ii) an offer to settle or (iii) an offer to admit liability and seek arbitration of damages.
Failure to respond is deemed a rejection
144
PROCEDURE IN MEDICAL MALPRACTICE CLAIMS
Presuit Procedure
Voluntary Binding Arbitration
After completion of preset procedures, the parties may elect to have damages determined by voluntary binding arbitration
145
PROCEDURE IN MEDICAL MALPRACTICE CLAIMS
Presuit Procedure
Voluntary Binding Arbitration
Limitation on Damages
Election to arbitrate not only precludes any other remedies but also limits damages to the following:
(i) net economic damages are limited to pas and future medical expenses and 80% of wage loss offset by collatoeral source payments
(ii) noneconomic damages are limited to a maximum of 250K per incident for each claimant and reduced according to the percentage of claimants capacity to enjoy life
(iii) future economic losses must be awarded by periodic payments the total of which must equal the total amount of future damages before reduction to present value and
(iv) punitive damages are NOT permit
a claimant may be also recover interested accrued on damages that would be awarded at trial,, attorney's fees, and costs up to15K of the total award and arbitration costs
Each defendant submitted to arbitration is jointly and severally liable for all of the claimants damages
146
PROCEDURE IN MEDICAL MALPRACTICE CLAIMS
Presuit Procedure
Voluntary Binding Arbitration
Effect of Refusal To Arbitrate
A claimant refusing to arbitration and electing to proceed to trial may recover net economic damages and up to 350K in noneconomic damages.
For a defendant refusing arbitration and proceeding to trial, noneconomic damages are subject to caps an the claimant may recover attorneys fees and costs up to 25% of the award. However, the claimants ward is reduced by any damages received from arbitrating co-defendants.
