Guide To Florida Law

Transcript

Guide to Florida Law http://www.megalaw.com/ Process of a Lawsuit ........................................................................................................................1 The Florida Court System................................................................................................................8 Florida Personal Injury Law: General...........................................................................................13 Florida Personal Injury Law: Products Liability...........................................................................19 Florida Personal Injury Law: Medical & Professional Malpractice..............................................23 Florida Alternative Dispute Resolution .......................................................................................30 Florida Felony & Misdemeanor Criminal Defense .......................................................................35 Web Resources...............................................................................................................................46 Florida Process of a Lawsuit • Process of a Lawsuit o The Civil Process o The Criminal Process o The Trial Process Process of a Lawsuit The American legal system uses an adversary model to settle disputes. This model pits parties against one another in a contest to persuade an impartial third party (either a judge or jury) to accept their version of the dispute. Ideally, by comparing the two versions, a judge or jury is able to discern the truth and make a just decision. One of the fundamental distinctions in the American legal system is the difference between civil and criminal matters. Civil cases resolve private conflicts between people, business or government, often by determining money damages for some harm. Criminal cases entail the enforcement of law by government and may involve fines, incarceration, or (in states with the death penalty -- such as Florida) death. Despite their differences, civil and criminal lawsuits do share some of the same procedural rules. For example, both types of suits must conform to statutes of limitation. A statute of limitation is a law setting the period of time during which a lawsuit must be filed. The time period varies depending on the legal claim. If a case is not filed within the period set by law, the right to file that lawsuit is lost (see chart below). Both civil and criminal cases also have to meet certain jurisdictional requirements. Jurisdiction refers to rules governing which court has authority to hear a particular case. Guide to Florida Law Page 1 of 48 Florida's circuit courts, for example, hear civil disputes involving over $15,000 and all felony criminal prosecutions. Florida's county courts hear civil disputes involving less than $15,000 and misdemeanor criminal prosecutions. This is what is known as subject matter jurisdiction. Also, a court must have personal jurisdiction over the parties in the case. Parties must either reside in or have some kind of significant contact with the court's geographic region. Otherwise, people could be sued anywhere in the nation. What follows is a discussion of how a lawsuit moves through either the civil or criminal court system. The Civil Process The parties in a civil lawsuit are known as the plaintiff and defendant. The plaintiff brings the lawsuit against the defendant by having his or her attorney file a complaint with a court. The complaint states what the dispute is about, why the defendant is responsible, and asks the court to take a stated course of action, usually awarding money damages. Other forms of remedy can also be sought, such as an injunction, which bars a person from doing a specific act, either temporarily or on a permanent basis. The plaintiff also serves a copy of the complaint, together with a summons, on the defendant. A summons is an official court document notifying the defendant that he or she must answer the complaint in writing within a specified period of time. In Florida, that period is 20 days. If the defendant does not answer in time, the plaintiff wins by default. The defendant's written response to the complaint is known as the answer. The answer admits or denies allegations in the complaint. It also states any defenses to the complaint, such as if there is a lack of subject matter jurisdiction or the statute of limitations has already expired. The answer can also contain any counterclaims that the defendant would like to make against the plaintiff. The counterclaims, however, have to relate to the plaintiff's complaint. The defendant cannot counterclaim about entirely unrelated issues -that would be a different lawsuit. As any lawyer can tell you, an uncomplicated lawsuit is a rarity. Plaintiffs may sue additional defendants and bring them into the original lawsuit. Outside parties with a related claim sometimes wish to intervene. Defendants may make counterclaims against the plaintiff, sue other third parties and bring them into the original suit, or even sue other co-defendants. For situations in which there is a large class of plaintiffs with similar claims against one or more defendants, plaintiffs can seek to file a class action lawsuit. An example of a class action would be people all over the country who have been hurt by a product and who sue the manufacturer in one single action. The rationale behind such suits is that both plaintiffs and defendants benefit by having one large lawsuit rather than hundreds or thousands of individual ones. In preparation for trial, parties often gather information from one another and from other sources. This period of information gathering is known as discovery. Discovery can take a number of different forms. Parties can ask one another for copies of documents; they can submit interrogatories, which are written questions the other party must answer Guide to Florida Law Page 2 of 48 under oath; they can ask the other party to submit to a physical or mental examination and provide the examination results; or they can conduct depositions, which are sworn statements by witnesses conducted in question and answer form. The vast majority of cases settle before the parties reach the courthouse steps. Sometimes the cost and effort in preparing for trial will persuade parties to reevaluate their positions. Parties may negotiate their own settlement or use some means of alternative dispute resolution (ADR) to bridge their differences (see the Alternative Dispute Resolution chapter). Another way a lawsuit can be concluded before reaching trial is through a summary judgment. If, after the complaint and answer have been filed, it is clear that there is no dispute concerning the facts, only the parties' interpretation of the facts, then the judge will grant a motion of summary judgment and make a decision by applying the facts to the law. However, if there is a genuine dispute about the facts in the case and the parties are not interested in settling, they will proceed to trial. An outline of how a trial is conducted follows a discussion of the criminal process. The Criminal Process In the criminal process, either the state or federal government is seeking to detain and punish a person whom the government believes is guilty of committing a crime. The U.S. Constitution guarantees certain rights and protections to persons being prosecuted by the government. There is, for example, protection from unreasonable search and seizure; a right to counsel; a right to a jury trial; a right to a speedy trial; and a right to confront witnesses. How people are treated in the criminal process is largely a matter of constitutional law. What kinds of acts or omissions are considered crimes and how they are punished is largely governed by the state. (For a discussion of Florida criminal law see the Criminal Law: Felonies & Misdemeanors and Criminal Law: DUI chapters.) The criminal process begins when a person is arrested. The police can arrest someone if they have probable cause to believe that the person has or is in the process of committing a felony, or if a misdemeanor was committed in the presence of an officer. An example of a felony is burglary, rape, or murder. An example of a misdemeanor is shoplifting, willfully telling the police false information about a crime, or knowingly transmitting sexually dangerous diseases. The police can also arrest someone if they have a warrant. A warrant is a court order charging that there is probable cause to believe a person has committed a crime and should be brought into court. When making an arrest, the police are entitled to use all reasonable and necessary force to overcome any resistance. Regardless of your feelings about being arrested, it is best not to resist. Violently resisting arrest is a felony in Florida; resisting arrest without violence is a misdemeanor. Even if you are found not guilty of the crime for which you were arrested, you still can be charged with resisting arrest. Guide to Florida Law Page 3 of 48 As most people know from television, after someone has been arrested, he or she must be informed of his or her constitutional rights before being questioned by the police. The 1966 U.S. Supreme Court case, Miranda v. Arizona, requires that any arrested person be told (1) they have the right to remain silent; (2) anything they say can be used against them in court; (3) they have a right to an attorney; and (4) if they cannot afford an attorney, one will be provided without charge. If these Miranda warnings are not given, evidence of admissions or confessions made by the arrested person during police questioning cannot be used in court. A person has the right to an appearance before a judge within 24 hours of his or her arrest. At this initial appearance, the judge will inform the person of the charges against him or her and will determine whether pretrial release is permissible. Persons in custody for the alleged commission of a crime are usually entitled to pretrial release, unless they are accused with a capital offense (a crime punishable by death) or an offense punishable by life imprisonment and the proof of guilt is "evident or the presumption great." Depending upon the situation, the accused may be released on his or her own recognizance, may be placed in the custody of a designated person or organization agreeing to supervise the accused, or may have to execute a bail bond. In any case, the accused must agree to return to court for further proceedings. If the government believes the accused may flee or will place the community at risk, it can file a motion for pretrial detention. If the attorneys for the government believe that the arrest was justified and the available evidence supports the arrest, the government will charge the accused person with a crime. Charging can be done directly with a document known as an information or a grand jury can issue an indictment. A grand jury is a panel of citizens that determines whether there is sufficient evidence to charge a person with a crime. A grand jury does not determine guilt or innocence of a defendant; that task is given to a petit jury during the trial portion of the criminal process. Both an information and an indictment are formal charging instruments that specify the crime, the accused, and give a court jurisdiction to try the case. Capital felonies can only be charged by an indictment. The arraignment is the accused's formal response to the charges filed by the government. The accused may plead guilty, not guilty, or nolo contendere. A plea of nolo contendere means that, without admitting guilt, the accused will not contend the charges made by the government. Judges will not always permit a nolo contendere plea. If the accused enters a plea of guilty or nolo contendere, there is no need for a trial and the next step is sentencing. If the accused enters a plea of not guilty, the parties will proceed to trial. Along the way, the accused might file motions attempting to suppress the evidence against him or her on constitutional grounds. Evidence might have been seized without a proper warrant or a confession might have been obtained improperly. Also along the way to trial, and sometimes during trial, plea bargaining may occur. That is, the accused might agree to plead guilty to a lesser charge if the prosecution agrees to drop the more serious charge. In the interest of expediency and moving cases through the courts, plea bargaining is typically encouraged. Guide to Florida Law Page 4 of 48 The Trial Process Whether a case is civil or criminal, the basic process of a trial is similar. The decision maker in a trial can be either a judge or a jury. In civil cases, the parties may have a right to a jury, depending on the subject matter. Juries in civil cases are usually made up of six people, plus alternates. All defendants facing serious criminal charges have an absolute right to a jury. Criminal juries consist of six jurors, except for capital cases, which require twelve. The first step in a jury trial is jury selection, otherwise known as voir dire. During voir dire the attorneys, and occasionally the judge, ask questions of potential jurors in an attempt to gauge their capacity to be fair and impartial. Persons who may somehow be biased or whom the attorney believes will not be sympathetic to his or her case can be removed. This is known as a peremptory challenge. Each attorney has a limited number of peremptory challenges and cannot remove a prospective juror for reasons such as sex or race. After a jury is selected, the members are sworn in. Next come the opening statements. Each side tells the jurors their version of the case and what they intend to prove. The plaintiff in a civil case (the prosecution in a criminal case) gives its opening statement first. Following opening statements, the plaintiff or prosecution proceeds with the evidence of their case. One form of evidence is the testimony of witnesses. The plaintiff or prosecution will ask a witness to the witness stand and, after the witness is sworn in, will ask him or her some questions. This is known as direct examination. After the plaintiff or prosecution is finished, the defense is then permitted to ask the witness some questions. This is called cross-examination. After cross-examination, the plaintiff or prosecution may again question the witness. This is known as redirect examination. Evidence can also take other forms such as documents, charts, pictures, audio or video recordings. After the plaintiff or prosecution has finished presenting its case, it is the defendant's turn. This time, the defense can call witnesses for direct examination and the plaintiff or prosecution will conduct cross-examination. During both the plaintiff's or prosecution's case and the defense's case, attorneys will make objections about what questions can be asked of the witnesses and what evidence can be introduced into the record. There are very specific rules governing what evidence is admissible. After both sides have concluded presenting their cases, the attorneys give closing arguments. In closing, an attorney will attempt to summarize the evidence present and explain why his or her side should prevail. If a judge is deciding the case, he or she will thank everyone involved and render a decision within a certain period of time, usually 90 days. If a jury is deciding the case, the judge will instruct the jury as to what law must be applied to the evidence of the case. One area in which the civil and criminal trial processes differ is the standard of proof. In a civil trial, the plaintiff must generally prove his or her case by a "preponderance of the evidence." Another way to put this is "more likely than not." In a criminal trial, the Guide to Florida Law Page 5 of 48 prosecution must prove its case "beyond a reasonable doubt." The criminal standard is higher because in a criminal case, a person's liberty, perhaps even his or her life, may be at stake. Also, the parties in a civil case can decide beforehand whether the jury must be unanimous in its decision. In a criminal trial, the jury must be unanimous. If it is not, a hung jury is declared and the case may be tried again. Both parties in a civil trial and the defendant in a criminal trial have the right to appeal a decision if they believe some error was made. Prosecutors, however, cannot appeal a not guilty verdict. (A discussion of the federal and state appellate courts is contained in The Florida Court System chapter.) Time Limitations for Filing Lawsuits* Civil Type of Lawsuit An action on a contract, obligation, or liability founded on a written document An action to foreclose a mortgage An action founded on negligence An action relating to paternity An action founded on the design, planning, or construction of an improvement to real property An action for personal injury founded on design, manufacture, distribution, or sale of personal property (products liability) An action for trespass on real property An action for taking, detaining or injuring real property Must be Filed Within Five years from date cause of action arises Five years Four years Four years Four years Four years Four years Four years An action on a contract, obligation, or liability not founded on a Four years written instrument An action for assault, battery, false arrest, mailcious prosecution, or false imprisonment An action for professional malpractice An action for wrongful death An action for defamation An action for specific performance of a contract Four years Two years Two years Two years One year Guide to Florida Law Page 6 of 48 Criminal Type of Lawsuit Capital or life felony Felony of the first degree Felony of the second or third degree Misdemeanor of the first degree Misdemeanor of the second degree or a non-criminal violation Must be Filed Within No time limitation Four years from date crime is committed Three years Two years One year * There are numerous exceptions and qualifications to the information listed above. For information relevant to your particular cause of action, consult an attorney Source: Florida Statutes 95.11, 775.15 Guide to Florida Law Page 7 of 48 The Florida Court System • The Florida Court System o State and Federal Courts  State Courts  Federal Courts o The Florida Bar o Resources The Florida Court System For anyone considering legal action, an understanding of how our legal system works is essential. As you may remember from civics class, the U.S. system of government, on both the state and federal levels, is divided into three separate and competing branches: the legislative, executive, and judicial. The legislative branch creates the laws, the executive branch enforces the laws, and the judicial branch interprets the laws. State government maintains control of state and local affairs, while the federal government oversees those areas important to the national interest. State and Federal Courts Which court system hears your case depends upon three factors: the subject matter of the dispute, the amount of money in controversy, and the location of the parties. To get into federal court, a lawsuit must either involve some issue of federal law, raise a question of constitutional interpretation, or involve parties from different states and more than $50,000. If a lawsuit does not meet one of these criteria, it must be heard in state court. State Courts The Florida court system consists of the Florida Supreme Court, district courts of appeal, circuit courts, and county courts. As the name suggests, the Florida Supreme Court is the highest court in the state. Located in Tallahassee, the Florida Supreme Court is composed of seven justices. Five justices must be present in order to conduct business and at least four justices must agree on a decision in each case. The jurisdiction of the Florida Supreme Court is both mandatory and discretionary. The Florida Supreme Court must hear all judgments imposing the death penalty, district court decisions declaring a state statute or provision of the state constitution invalid, bond validation judgments, and actions of statewide agencies relating to public utilities. The Florida Supreme Court has discretion in hearing decisions of district courts of appeal that expressly declare a state statute valid; questions certified by the district courts of appeal as being of great public importance; or decisions where the district courts are in conflict Guide to Florida Law Page 8 of 48 with one another. The Florida Supreme Court may also issue advisory opinions at the governor's request concerning interpretion of the state constitution regarding the governor's powers and duties. To become a Florida Supreme Court justice, a person must reside in Florida and have been admitted to The Florida Bar for the preceding 10 years. When there is a vacancy on the court, the governor appoints the next justice from a list of three qualified persons prepared by the state Judicial Nominating Commission. Justices serve for six years, after which they can have their name put on the general election ballot if they wish to remain in office. The court hears oral arguments on the first Monday through Friday of each month, except in July and August. There are five district courts of appeal in Florida, each covering a geographic district. Judges sit in panels of three and decide appeals from circuit courts in most criminal and civil cases. They also have jurisdiction to decide appeals from county courts when a state statute or provision of the state constitution is held invalid, or for orders or judgments certified to be of great public importance. As a practical matter, the district courts of appeal are the final appellate review of litigated cases. Someone displeased with a district court's decision may seek review in the Florida Supreme Court or in the U.S. Supreme Court, but the overwhelming majority of such requests are denied. Most civil and criminal cases in Florida originate at the circuit court level. The circuit courts are courts of general jurisdiction, handling such matters as domestic relations, major criminal offenses, probate issues, civil cases involving amounts greater than $15,000, and appeals from county courts. The county courts, which occupy the lowest rung in the Florida court system, are sometimes referred to as "the peoples' courts," since a large portion of the county courts' work involves citizen disputes like traffic offenses, county and city ordinance violations, less serious criminal offenses and civil cases involving less than $15,000, such as landlord/tenant disputes. The small claims division of the county court permits members of the public to bring their own lawsuits without an attorney (provided the amount in dispute is less than $2,500). The clerk of the local county court can provide information on how to file a small claims lawsuit. The state of Florida pays the salaries of all judges and their secretaries. The state shares with the counties most of the remaining expenses. The facilities for the appellate courts are provided by the state and the counties provide facilities for the trial courts. Supreme Court • Located in Tallahassee • Each justice serves a 6-year term, but can remain in office if retained in a general election • • Justices are appointed by Governor Decisions of the Florida Supreme Court can be appealed to the U.S. Supreme Court Guide to Florida Law Page 9 of 48 • 7 justices where the validity of a federal law is in question • District Courts of Appeal • 5 districts: 1st District - Tallahasse - 15 judges 2nd District - Lakeland - 14 judges 3rd District - Miami - 11 judges 4th District - W. Palm Beach - 12 judges 5th District - Daytona Beach - 9 judges • • • Each judge serves a six year term, but can remain in office if retained in a general election Cases are reviewed by a 3-judge panel Judges are appointed by governor District courts of appeal hear appeal from circuit and county courts • • • • Circuit Courts • 20 judicial circuits • 442 judges, each judge serves a 6-year term • Judges are elected into office Judges sit individually Trial court Different number of judges in each circuit County Courts • At least 1 judge in each of Florida's 67 counties, 254 in total • Judges serve 4-year terms and are elected into office Trial court Judges sit individually • Federal Courts Like the state courts, the federal system consists of trial courts, appellate courts, and one Supreme Court. The U.S. Supreme Court is the highest court in the nation and is made up of nine justices appointed for life. The Supreme Court hears appeals from the federal courts of appeals and from the highest state courts. However, the Supreme Court's jurisdiction is largely discretionary. That is, it chooses which cases it wants to hear by granting a "writ of certiorari." Certiorari is Latin for "to be informed of." Typically, cases granted certiorari involve a disagreement among the federal appellate courts as to the interpretation of federal law or involve some issue important to the national interest. The chances of a case reaching the Supreme Court are small. Of the thousands of losing parties who petition the Court to review their cases, only about 100 are granted certiorari. Though less visible than the president or Congress, the U.S. Supreme Court is a powerful force in federal government. Because of its position as the final interpreter of the Constitution, the Supreme Court has the power to declare an act of Congress or the president invalid because it is inconsistent with the Constitution. This power is known as judicial review. When the Supreme Court declares an act of Congress or of the president unconstitutional, it can be overruled only by a subsequent decision of the Court or an amendment to the Constitution, which requires passage by a two-thirds majority of both Guide to Florida Law Page 10 of 48 houses of Congress and ratification by three-fourths of the states. Of the twenty-six amendments to the Constitution, seven have invalidated a U.S. Supreme Court decision. Below the Supreme Court are 13 U.S. courts of appeals, also known as circuit courts. The country is divided into 11 circuits (plus the Court of Appeals for the District of Columbia and the Federal Circuit Court of Appeals). Each circuit has a court of appeals which hears cases appealed from the federal district courts in that circuit. District courts are where federal trials are conducted. Every state has at least one district court, and highly populated states have more. Florida is located in the Eleventh Circuit, with Georgia and Alabama. The U.S. Court of Appeals for the Eleventh Circuit usually sits in Atlanta, but occasionally hears cases in Jacksonville, Miami, Mobile, and Montgomery. Florida also has three U.S. district courts, one in the northern, middle and southern districts. Also part of the federal system are a number of courts of specific jurisdiction. For example, there are federal tax courts and bankruptcy courts throughout the country and, in Washington, D.C., the U.S. Court of Appeals for the Federal Circuit hears appeals regarding patents, customs, and claims against the U.S. government. The Florida Bar Although not part of the federal or state government per se, The Florida Bar should be included in any discussion of the Florida legal system. The Florida Bar is an organization for, and made up by, licensed Florida attorneys. Unlike some states, The Florida Bar is mandatory, which means all licensed attorneys in Florida must become members. The Florida Bar provides a number of services for its membership and programs for the public. Among the public-oriented programs are the Law Related Education Program, which promotes basic legal education in Florida's primary and secondary schools, and the Legal Fee Arbitration Program, which helps attorneys and clients resolve disputes over fees. The Florida Bar also has a Call-A-Law service which provides consumers free access to a collection of recorded messages on such legal topics as divorce, wills, taxes, and landlord/tenant law. Becoming an attorney in Florida entails passing the Florida Bar examination, in addition to having a degree from an accredited law school and an undergraduate college degree. Presently, there are approximately 52,000 attorneys licensed to practice in Florida. Salaries for Florida attorneys vary according to a number of factors (e.g., area of practice, firm size, location, years of experience, etc.), but according to a recent Florida Bar survey, the median salary for a starting attorney in 1994 was $30,000. An attorney working 6-8 years had a median salary of $55,000; and a partner (with more than 8 years experience) had a median salary of $100,000. Resources Guide to Florida Law Page 11 of 48 For more information on The Florida Bar Exam or to receive an application packet, write to The Florida Board of Bar Examiners, 1300 East Park Avenue, Tallahassee, FL 323991750. For more information on any of the programs of The Florida Bar, write to The Florida Bar, 650 Apalachee Parkway, Tallahassee, FL 32399-2300 or call The Florida Bar's Public Information Office at (904) 561-5834. The Florida Bar Call-A-Law service can be reached at (904) 561-1200. To receive a brochure which includes a directory of the recorded messages, call the The Florida Bar. The Florida Supreme Court's Home Page address on the World Wide Web is http://.www.justice.courts.state.fl.us . Guide to Florida Law Page 12 of 48 Florida Personal Injury Law: General • Personal Injury Law: General o Theories of Tort Liability  Intentional Torts  Negligence  Comparative Negligence  Strict Liability o Issues Concerning Tort Cases Generally  Burden of Proof  Affirmative Defenses  Vicarious Liability  Joint and Several Liability  Wrongful Death Lawsuits  Government Immunity  Statute of Limitations Personal Injury Law: General Personal injury law is all about torts. Broadly defined, a tort is a harmful act (or failure to act) for which the law provides a remedy. There are many different kinds of torts. Physically injuring someone is a tort; so is damaging a person's property or character, or wrongly denying someone his or her liberty. The basic principle of tort law is that injured persons should be compensated by those responsible for their injuries. Thus, a victim of a tort has the right to sue the tortfeasor (the person committing the tort) for damages. Though often confused, torts and crimes are two separate legal entities. Torts are civil wrongs against an individual exposing the tortfeasor to liability. Crimes are wrongs against society or the state and are punishable by incarceration or fines. Some acts, however, can be both a tort and a crime. For example, someone who used force to cause bodily injury has committed a tort known as battery and is liable to the victim for damages. Battery is also a first degree misdemeanor under Florida law and punishable by up to one year in prison. Thus, a person could be prosecuted and convicted of battery, and later face a civil lawsuit brought by the victim. This chapter outlines general tort principles and theories of recovery. However, because personal injury law is wide and varied, with many different applications, this Guide has devoted three additional chapters to exploring areas of personal injury law relevant to consumers. See the Medical and Professional Malpractice , Personal Injury Law: Products Liability , and Personal Injury Law chapters as applied in the automobile, railroad, aviation, and maritime contexts. Theories of Tort Liability Guide to Florida Law Page 13 of 48 The law recognizes three general types of torts: intentional torts, negligent torts, and torts based on strict liability. Each of these torts is unique and has its own requirements for recovery. For example, if a person is injured by a commercial product, he or she may sue the manufacturer under a theory of negligence or strict liability. Suing for negligence requires that the plaintiff show that the defendant failed to use adequate care in making the product. Suing based on strict liability requires that the plaintiff show, among other things, that the product was "unreasonably dangerous." Which theory a plaintiff uses depends on the facts of his or her particular case. (For more information on products liability see the Personal Injury Law: Products Liability chapter.) Intentional Torts As the name implies, intentional torts are those torts for which the defendant intends the consequences of an act. Battery is an example of an intentional tort; so is assault (threatening someone with physical violence), false imprisonment or other invalid uses of legal authority, invasion of privacy (e.g., unauthorized use of a person's name or picture for commercial purposes), and trespass. Defamation is also considered an intentional tort, either in print, on television or radio (libel), or in spoken form (slander). To proceed in a lawsuit for damages caused by an intentional tort, a plaintiff must show that the defendant committed the tort, intended the consequences or knew with substantial certainty what consequences would result, and that the defendant's act was a substantial factor in the resulting harm or injury. In some cases, however, there are defenses to intentional torts which excuse the defendant from liability. For example, someone may commit battery in self-defense. Under Florida law, a person is justified in using force to defend him or herself, so long as the force is reasonably necessary. Similarly, the truth of a statement may be a complete defense to a defamation action. Unlike negligence, a plaintiff suing for an intentional tort is not usually required to show actual damages in order to proceed with a lawsuit. In the case of defamation, for example, the resulting emotional distress and mental anguish are considered sufficient damages to justify a lawsuit (however, the damage award may be nominal without proof of a quantifiable injury). Plaintiffs who do suffer quantifiable injury are entitled to compensatory damages (damages which compensate the plaintiff for injury to person or property) and may receive punitive damages (damages aimed at punishing the defendant and deterring future similar action) if the tort was willfully committed or particularly malicious. Negligence The majority of personal injury lawsuits in Florida are brought under a theory of negligence. Negligence has to do with how careful a person was when he or she caused an injury, and how careful, according to the law, he or she should have been. There are four requirements to proving negligence. A plaintiff must show (1) the defendant had a duty to conform to a certain standard of conduct to protect others from unreasonable risk; Guide to Florida Law Page 14 of 48 (2) the defendant breached that duty; (3) the defendant's breach was the proximate cause of the plaintiff's injury; and (4) the plaintiff suffered an injury. In general, the law imposes a duty on everyone to behave at least as carefully as a reasonable, ordinary, prudent person in a similar situation. This is known as the reasonable person standard. A defendant's actions must fall short of the reasonable person standard in order for the defendant to be found negligent. If a court determines that the defendant acted reasonably, even though his or her actions caused injury to another, the defendant is not negligent and not liable for damages. Children are typically held to a lower standard than adults; and professionals, such as doctors, are held to a higher standard. Under Florida law, doctors and other health professionals must meet a standard of care based on what is recognized as acceptable and appropriate by reasonably prudent health care providers in similar circumstances. (See the Medical and Professional Malpractice chapter for more information on medical and professional malpractice.) Proximate cause is the legal term given to describe an act which causes a plaintiff's injury or, more accurately, causes the injury for purposes of assigning liability. Sometimes a defendant's act may be so remotely related to the plaintiff's injury as not to be considered a proximate cause. For example, in a famous 1928 New York case, a railroad employee helped a passenger onto a moving train by pushing him from behind. In the process, a package the passenger was carrying, wrapped in newspaper and containing fireworks, was dislodged, fell, and exploded. The force of the explosion knocked down some scales at the far end of the train platform, a considerable distance away, injuring the plaintiff. The plaintiff sued the railroad company for damages. The court ruled that since the railroad employee could not foresee the complicated and unlikely sequence of events that led to the plaintiff's injury, the employee's action was not the proximate cause of the plaintiff's injury. In other words, although the railroad employee's action "caused" the plaintiff's injury in a technical sense, the line of causation was too remote to hold the railroad company liable. Damages must be shown in a negligence lawsuit, otherwise the lawsuit will be dismissed. Plaintiffs who successfully prove the defendant's negligence are entitled to compensatory and punitive damages. However, recent Florida legislation has limited the recovery of punitive damages in negligence actions (limitations also apply to strict liability, products liability, professional negligence, and breach of warranty). For example, a punitive damage award of more than three times the compensatory damages is considered excessive and subject to reduction. Additionally, 35 percent of every punitive damage award goes to the state of Florida. The remaining 65 percent goes to the plaintiff. The outcome of lawsuits alleging negligence can be difficult to predict because the reasonable person standard is vague, imprecise, and apt to be interpreted differently by different people. Applying the reasonable person standard to a particular set of facts can be a very subjective process. Finding an attorney with experience presenting negligence cases and expertise in arguing the reasonable person standard to a judge or jury are the keys to a successful lawsuit. Guide to Florida Law Page 15 of 48 Comparative Negligence Often, accidents are not black and white events. That is, a plaintiff is usually not 100 percent fault-free and a defendant 100 percent negligent. In 1973, Florida adopted the doctrine of comparative negligence which enables a jury to more accurately apportion liability in a negligence lawsuit. Comparative negligence permits a jury to compare the negligence of the plaintiff with the negligence of the defendant and decide damages accordingly. If the jury finds the plaintiff 10 percent negligent in a car accident, and the defendant 90 percent negligent, the defendant has to pay only 90 percent of any damage award. Strict Liability If a plaintiff sues under the theory of strict liability, he or she contends that the defendant is liable regardless of fault. The issue of how careful a defendant was or should have been is irrelevant. If the defendant's activity was the proximate cause of the plaintiff's injury, the defendant is liable. Strict liability applies only in a limited number of areas. For example, owners of wild or dangerous animals are strictly liable for any injuries their animals may cause (owners of domestic animals -- dogs and cats -- are liable only if negligent). Also, anyone engaged in ultrahazardous or abnormally dangerous activities is strictly liable for injuries. Examples would include demolishing buildings, crop dusting, manufacturing explosives, blasting, and fumigating. Finally, and most important for consumers, manufacturers may be strictly liable for injuries caused by their products. (See the Personal Injury Law: Products Liability chapter for more information.) To prove a case based on strict liability, four elements must be established. A plaintiff must show (1) the defendant had an absolute duty to make the activity or product safe; (2) the defendant breached that duty; (3) the breach of the duty was the proximate cause of the plaintiff's injury; and (4) the plaintiff suffered an injury. Because the issue of fault is not relevant to a strict liability case, the most crucial element of the above four is that of causation. Issues Concerning Tort Cases Generally Burden of Proof As discussed in the Process of a Lawsuit chapter, a plaintiff has to prove his or her case "by a preponderance of the evidence." In other words, a plaintiff must show that a majority of the evidence establishes that the defendant committed a tort (under whichever theory of liability). This is different from the burden of proof in a criminal case. In a criminal case, the prosecution must prove the defendant's guilt "beyond a reasonable doubt" -- a much higher standard. When a tort is also a crime, the results from the civil and criminal cases do not have to be consistent; in fact, the outcomes are frequently Guide to Florida Law Page 16 of 48 contradictory. Because the criminal burden of proof is higher, a defendant may be found innocent of committing a crime, but liable for tort damages. Affirmative Defenses A defendant who makes an affirmative defense does not deny the evidence against him or her, but argues that the plaintiff is also culpable and, for that reason, any judgment against the defendant should be reduced or dismissed entirely. In the tort context, two examples of an affirmative defense are comparative negligence (see above) and assumption of risk. The doctrine of assumption of risk states simply that in situations where the plaintiff was aware of the potential for injury and proceeded nonetheless, the defendant's liability should be reduced, if not erased altogether. Vicarious Liability Vicarious liability describes those instances wherein one person is held liable for the tortious acts of another, even though the first person was not involved in the act, did nothing to encourage the act, and may even have attempted to prevent it. For example, under Florida law, a person who consents to the use of his or her car by another is liable for any negligent damage the second person may do with the car. The most common form of vicarious liability occurs in the area of employment. An employer is liable for any tortious acts committed by an employee acting within the scope of employment. But exactly what actions are "within the scope of employment" is a tricky issue. If an employee is driving his or her own automobile to work and hits a pedestrian, is that within the scope of employment? Probably not. What if the employee is driving a company car he or she routinely takes home? This is a better case for establishing vicarious liability. What if a telephone repairperson making a house call during working hours causes an accident while driving a company van? A court will almost certainly find the employee to be acting within the scope of employment. Another area in which vicarious liability is applied is in the case of bar owners or anyone providing alcohol. Under Florida law, anyone serving alcohol to a minor or to a known addicted drinker may be liable for intoxication-related damages caused by that person. Joint and Several Liability In cases where two or more defendants (whether acting in concert or not) are responsible for a plaintiff's injury, and it is unclear which defendant is responsible for which portion of the injury, the defendants can be found jointly and severally liable for damages. In other words, a plaintiff has the right to collect the damage award from the defendants as a whole or individually, depending on the plaintiff's preference. An example might be a situation in which two cars collide with a third, causing the plaintiff multiple injuries, and it is not known which collision caused which injury. Where it is clear which defendant caused which portion of the plaintiff's injury, each defendant will be liable only for that portion of the injury he or she caused. Guide to Florida Law Page 17 of 48 Wrongful Death Lawsuits If a person dies from a defendant's tortious action, the decedent's survivors and estate may bring a lawsuit for wrongful death. Survivors include the decedent's spouse, children, and parents. Each survivor may recover for loss of the decedent's support or services. Additionally, the surviving spouse, minor children, and all children if there is no surviving spouse, may recover for loss of the decedent's companionship and protection. They may also recover for pain and suffering. The estate can recover for lost earning from the date of injury until the date of death, and funeral and medical expenses if paid by the estate. Government Immunity There was a time when citizens could not sue the government for torts committed by government employees. This immunity has been largely waived by the federal and state governments, including Florida. The Florida state government is now liable for the torts of its employers to the same extent as private employers. However, there are limits. For example, there is no duty of care concerning how the state exercises its discretionary power to enforce the law. A person cannot sue the fire department for failing to put out a fire in his or her house, nor the police department for failing to stop the theft of his or her car. Only if a plaintiff can show that the government owed him or her a special duty, above that owed to the public at large, will he or she prevail in a tort suit against the government. Statute of Limitations Remember that there are limits to the time period in which a lawsuit can be filed. For example, a lawsuit based on negligence must be filed within four years from the time the cause of action arose. If a person fails to file a lawsuit within the time period prescribed by the statute of limitations, the person loses the right to file that lawsuit. (See the Process of a Lawsuit chapter for more information on statutes of limitation.) Guide to Florida Law Page 18 of 48 Florida Personal Injury Law: Products Liability • Personal Injury Law: Products Liability o Product Liability Lawsuits Based on Strict Liability  Defective Products  Proximate Cause  Damages o Product Liability Lawsuits Based on Negligence o Products Liability Lawsuits Based on Breach of Warranty o Products Liability Generally Personal Injury Law: Products Liability If a person is injured by a product, he or she has the right to sue the product's maker for damages. And, depending on the particular situation, he or she may also be able to sue the assembler, wholesaler, retailer, or anyone else involved in the product's production and distribution. Even used car dealers who sell rebuilt or reconditioned automobiles can be products liability defendants. (For purposes of this chapter, the term "manufacturer" is used to describe all potential defendants.) A plaintiff injured by a product may bring a lawsuit under any of three theories of recovery: the tort theories of strict liability and negligence (see the Personal Injury Law: General chapter), and the contract theory of breach of warranty (see the Contract Law chapter). Each of these theories has its advantages and disadvantages, and an attorney may use one rather than another to increase the likelihood of recovery, or indeed, may use all three. But the most important of these theories by far, and the one which has most affected America's commercial landscape, is strict liability. Products Liability Lawsuits Based on Strict Liability As discussed in the Personal Injury Law: General chapter, strict liability, unlike negligence, is liability without fault. Even if a defendant's actions are entirely reasonable, strict liability requires the defendant to pay damages if he or she caused the plaintiff's injury. Historically, strict liability was only applied when a wild animal or an ultrahazardous activity caused an injury. But in 1963, strict liability was first used in a defective product context and since then, has become the principal theory of recovery in product liability cases. Among the reasons for applying strict liability to defective product cases is that manufacturers (often large corporations) are in a better position to incur the costs of the injuries caused by their products than the individuals who are injured. Moreover, by requiring a manufacturer to pay damages for any injury caused by its product, regardless of fault, the law is encouraging manufacturers to produce safe and dependable products. Guide to Florida Law Page 19 of 48 Defective Products Manufacturers are strictly liable only for defective products which cause injuries. Therefore, a threshold requirement for an injured plaintiff is to show a product to be defective. Exactly what constitutes a defect remains imprecise, but courts agree that there are three separate types of defects: manufacturing defects, design defects, and defects in warning. Manufacturing defects occur when a product is not manufactured according to its design: a screw is forgotten, a protective cover is improperly fastened; somewhere a mistake is made, and the product is still sent into the stream of commerce. A product with a design defect may be properly manufactured, but the design itself is dangerous. Manufacturers have a duty to safely design products for their intended use and for misuse, if such misuse is foreseeable. For example, a kitchen cleaning agent must be designed to safely clean countertops and stovetops, but since it is foreseeable that a child might drink the product, a manufacturer may have to design the product to be safe when drunk or with a child-proof cap. A defect in warning concerns a manufacturer's failure to adequately instruct or warn a consumer about a product's dangers. According to the law, a consumer has the right to be properly apprised of any risk in using the product. Only then can he or she make an informed decision as to whether, or in what manner, to use a product. This duty to warn includes products already sold. If a manufacturer discovers a product's potential hazards after the product has been introduced into the market, the manufacturer must warn those early consumers. The manufacturer may even have to recall the product, as has happened in the automobile and processed food industries. Product dangers which are "open and obvious" do not require warnings. But what constitutes "open and obvious" is not strictly defined. Something that is obvious to one person may be unforeseeable to another. Consequently, some manufacturers will warn consumers about even remote risks so as to defend against potential lawsuits. Proximate Cause In addition to proving that a product is defective, a plaintiff must also show that the product caused his or her injury. While this may not be a difficult task in many situations, it can be in others. For example, proving that a particular drug caused a plaintiff's injury entails a great deal of medical evidence. It may also entail battling arguments made by the defendant that the injury was caused by other reasons unrelated to the drug. And because medicine remains an inexact science, the answer to the question of causation is sometimes never satisfactorily determined. Damages If a plaintiff is successful, he or she can recover compensatory damages for personal injury or injury to property. A plaintiff can also receive punitive damages if the Guide to Florida Law Page 20 of 48 manufacturer's actions were willful or particularly malicious. Recent legislation, however, has limited punitive damages in the products liability area. A punitive damage award of more than three times the compensatory damages is considered excessive and subject to reduction. Also, 35 percent of every punitive damage award goes to the state of Florida. The remaining 65 percent goes to the plaintiff. It is important to note that the doctrine of comparative negligence (see the Personal Injury Law: General chapter) applies to products liability cases. If a plaintiff fails to exercise ordinary care in using the product which caused his or her injury, the amount of recovery can be reduced. Products Liability Lawsuits Based on Negligence Suing a manufacturer for negligence can be more difficult than a strict liability lawsuit since there is an extra step involved. A plaintiff arguing negligence must show that the product that caused the injury was defective and that the defendant was at fault (see the Personal Injury Law: General chapter for a discussion of the elements necessary to prove negligence). A strict liability case, as noted above, requires only proof that the product that caused the injury was defective. One reason that a plaintiff may want to bring a negligence action in lieu of or in addition to a strict liability action is that he or she may have considerable evidence of the defendant's fault. A jury persuaded of a defendant's fault may be more apt to award higher damages, perhaps even punitive damages. Products Liability Lawsuits Based on Breach of Warranty Whenever a person purchases a product, a contract has been formed. Sometimes that contract will include express warranties; it will almost always include implied warranties. An express warranty arises when a manufacturer makes some affirmation or promise about a product which is relied upon by the buyer. The terms of an express warranty are whatever is agreed to by the parties. An implied warranty is a warranty which is implied by Florida law on the sale of goods. Under Florida's implied warranty, all goods (broadly defined as tangible things which are moveable) sold must be generally fit for their intended purpose. If a product is not generally fit for its intended purpose or if it does not meet the terms of its express warranty and a person is injured by the product, that person may sue the manufacturer for breach of warranty. Unlike negligence, breach of warranty lawsuits do not involve proof of fault. Instead, a plaintiff must show evidence of a product's failure to meet the terms of either its express or implied warranty (this evidence will be similar to the "defective product" evidence necessary in a strict liability or negligence case). One characteristic unique to breach of warranty lawsuits is the possibility of recovery for economic loss. Whereas strict liability and negligence product liability lawsuits can recover compensatory and punitive damages Guide to Florida Law Page 21 of 48 related to the plaintiff's injury, they cannot recover the costs of repairing or replacing the defective product. A plaintiff in a breach of warranty lawsuit may recover such costs, in addition to compensatory or punitive damages. Products Liability Generally The principal purpose of products liability litigation is to compensate persons injured by defective products or products in breach of warranty. But products liability litigation also serves an important public policy interest. It serves as a means for society to collectively decide how safe manufacturers ought to make products that consumers use everyday. The application of strict liability in product liability cases demonstrates American society's changing attitudes concerning product-related injury. For the most part, manufacturer's are now under a duty to prevent injury. They are required to use better materials, include more safety features, and provide more warnings of a product's possible dangers. This is a far cry from the law of products liability half a century ago. What attitudes Americans will have toward product safety in the future remains to be seen, but one hopes that the trend toward safer products will continue. Guide to Florida Law Page 22 of 48 Florida Personal Injury Law: Medical & Professional Malpractice • Personal Injury Law: Medical & Professional Malpractice o Medical Malpractice  Duty of Care  Breach of Duty  Proximate Cause  Damages  Affirmative Defenses  Florida's Procedure for Filing a Medical Malpractice Claim o Legal Malpractice  Duty of Care  Breach of Duty  Proximate Cause  Damages o Accountant Malpractice o Engineer and Architect Malpractice Personal Injury Law: Medical & Professional Malpractice Professional malpractice occurs whenever a professional improperly or unethically performs his or her duties either intentionally or out of carelessness. Plaintiffs suing for professional malpractice must prove that the professional was negligent and breached his or her duty of care, resulting in the plaintiff's injury. This chapter examines some of the issues involved in malpractice lawsuits against doctors, lawyers, engineers, architects, and accountants. Malpractice, though, is not the only way in which a professional can incur liability for job-related improper conduct. A professional may breach a contract or commit an intentional tort against a patient or client. Although such conduct might give rise to a claim against the professional, it is not considered within the rubric of professional malpractice. Medical Malpractice Medical malpractice comprises the majority of professional malpractice lawsuits brought in this country. This is not to say that medical professionals are more prone to committing malpractice, but that they are the target of more malpractice lawsuits -- which is not surprising given the gravity of the situations faced everyday by the medical profession. The number of lawsuits against other professionals, however, is increasing and many of the concepts used in those lawsuits are adapted from the medical malpractice context. Thus, an understanding of medical malpractice is a good introduction to professional Guide to Florida Law Page 23 of 48 malpractice generally. It should be pointed out that the term medical malpractice does not apply only to doctors. Other health care professionals, such as psychologists, nurses, dentists, and physical therapists, can also be sued for improper or unethical professional conduct. As in any malpractice lawsuit, a plaintiff suing for medical malpractice must show the four elements necessary to prove negligence: duty of care, breach of duty, injury, and proximate cause (see the Personal Injury Law: General chapter for more discussion on negligence). A person accused of malpractice can defend him- or herself by showing that one of these elements is missing and/or by establishing an affirmative defense. An affirmative defense is a legal argument that admits the existence of the required elements, but maintains that the plaintiff is also culpable. Duty of Care Once a doctor or health care professional agrees to diagnose or treat a patient, he or she has assumed a duty of care toward that patient. What this means is that the health care professional must treat the patient with at least the same level of care as a reasonably competent health care professional. But what about persons who are not patients? For example, does a doctor have a legal duty to help a stranger choking in a restaurant? The answer is no. At present, the law does not place an affirmative duty on anyone, including health care professionals, to render assistance to others in most situations. Of course, a doctor can help if he or she wants to, but there is no legal obligation. Generally, a health care professional does not have a duty to someone who is not a patient. However, a psychotherapist may have a duty to warn a person if a patient has made specific threats against that person and the patient has the ability to carry out those threats. In such instances, Florida law permits a psychotherapist to breach his or her duty of confidentiality and warn the person threatened by the patient. Breach of Duty Unlike ordinary negligence cases, proving that a health care professional breached his or her duty of care involves showing what a reasonably competent health care professional would have done in a similar situation. Unfortunately, most judges or jurors do not have a clue as to what is acceptable medical practice. As a result, medical malpractice lawsuits often become battles between medical experts testifying as to whether the defendant breached his or her duty of care. In general, a reasonably competent health care professional is one who stays abreast of the relevant treatment literature and uses methods commonly accepted in the profession. A professional who disregards well-established medical standards or attempts to perform procedures beyond his or her capabilities is exposing him- or herself to a possible malpractice lawsuit. Yet health care professionals often differ on the best course of action in a particular situation. Medicine, like law, is an inexact science. What one professional Guide to Florida Law Page 24 of 48 questions as dubious, another may find quite competent. For this reason, proving breach of duty may be a plaintiff's most difficult task in a malpractice lawsuit. Proximate Cause Proximate cause is defined legally as a cause which, in a natural and continuous sequence, unbroken by any intervening event, produces injury, and without which, the injury would not have occurred. A simpler way of thinking about proximate cause is that it is an act which caused the plaintiff's injury for purposes of assigning liability. Courts may not find a defendant liable if there is not a clear line of causation between the defendant's act and the plaintiff's injury. In some cases, a defendant may have caused a plaintiff's injury in a technical sense, but the chain of events leading up to the injury was so convoluted and improbable, that the defendant would have had no reason to be aware of any possible risk. In cases where no reasonable person could have foreseen injury to the plaintiff, courts will probably not hold the defendant liable. It is important to note that causing an injury is not necessarily medical malpractice. A health care professional may have acted in the same manner as any reasonably competent health care professional; and while the professional might have caused the injury, if he or she did not breach the duty of care to the plaintiff, he or she should not be held liable. Damages Persons who successfully sue for medical malpractice are entitled to receive compensatory damages which may include damages for pain and suffering or lost wages. Plaintiffs may also be entitled to punitive damages if the malpractice was willful or particularly malicious. Affirmative Defenses As described above, a defendant asserting an affirmative defense admits the existence of negligence, but argues that there are other factors which excuse the defendant's conduct. One affirmative defense used in malpractice cases is that of conflicting legal duty. For example, a doctor who releases information about a patient's medical condition normally violates the patient's right to confidentiality and commits malpractice. However, in limited situations, a doctor is legally required to inform others of a patient's medical condition. If a patient suffers from a gunshot wound, the doctor treating him or her must inform the police. Also, a doctor must inform the Florida Department of Health and Rehabilitative Services of anyone with a serious disease of public significance. A doctor treating a minor who appears to be a victim of child abuse must report the condition to the appropriate authorities. Consent is perhaps the most frequently asserted affirmative defense in medical malpractice cases. Consent means that the health care professional informed the plaintiff of all risks associated with a particular procedure, the plaintiff consented, and the professional did not go beyond the procedures to which the plaintiff agreed. Doctors and Guide to Florida Law Page 25 of 48 hospitals have tried to protect themselves from malpractice suits by having patients sign consent forms before patients receive treatment. These forms typically include warnings that medicine is an imperfect art and that patients must assume all risks for any surgical procedures. But a person does not give up all of his or her rights by signing a consent form -- particularly if a doctor does not fully inform him or her about the procedures, goes beyond the agreed to procedures, or fails to abide by well-established medical procedures. A patient may also sue a doctor or a hospital if a person other than the one named on the consent form performed the surgery. Florida's Procedure for Filing a Medical Malpractice Claim Due to the high cost of defending against medical malpractice claims and the corresponding increase in the cost of malpractice insurance, the state of Florida requires that persons intent on filing a medical malpractice lawsuit abide by the following pre-suit procedure: 1. At least 90 days before filing suit, a prospective plaintiff must notify each prospective defendant by certified mail. Prior to this notification, a prospective plaintiff must have investigated the grounds for the lawsuit and obtained a written opinion from a medical expert verifying the claim. 2. During the 90-day period prior to filing the suit, the prospective defendant's insurer must evaluate the prospective plaintiff's claim and deliver either a rejection of the claim, an offer to settle, or an offer to admit liability and seek arbitration damages. After completion of the pre-suit investigations, the parties can elect to pursue the traditional litigation process or have damages determined by voluntary binding arbitration. Choosing to arbitrate precludes any other remedy and involves certain limitations on damages, but may be a more expedient method of resolving the dispute. Legal Malpractice Lawyers are becoming an increasingly popular target for malpractice suits. Although there is no precise definition of legal malpractice, generally speaking, a lawyer commits malpractice when he or she fails to provide quality legal services to a client. Filing a lawsuit against an attorney for malpractice is different from filing a complaint about an attorney with The Florida Bar. A lawsuit entails proving the attorney committed negligence and entitles a successful plaintiff to damages. A complaint filed with The Florida Bar is processed through the Bar's lawyer grievance system and, if valid, may subject the attorney to disciplinary action. Any loss a person suffers as a result of an attorney's actions is not recoverable through the lawyer grievance system. (For more information about the lawyer grievance system, see the How to Hire an Attorney chapter.) As in any malpractice lawsuit, a plaintiff suing for legal malpractice must show the four elements necessary to prove negligence: duty of care, breach of duty, injury, and Guide to Florida Law Page 26 of 48 proximate cause. Understanding how Florida courts interpret these four elements in the legal malpractice context is essential to a successful lawsuit. Duty of Care In general, an attorney owes a duty of care to a person once that person hires the attorney and becomes a client. However, sometimes there can be confusion as to whether or not an attorney has been hired. Many consumers mistakenly believe that consulting an attorney is the same as retaining or hiring an attorney. It is not. After an initial consultation, consumers are strongly encouraged to clarify with the attorney whether or not the attorney has been retained. The duty that a lawyer owes a client has two components -- competency and fiduciary. The lawyer must exercise the same legal skill as a reasonably competent attorney. No lawyer is expected to know the law so well that he or she can give perfect answers to every legal question, but lawyers are expected to know how to research issues and to recognize the limits of their knowledge. As a fiduciary of a client, an attorney is obligated to treat all information relating to a client's representation as confidential and to zealously represent the client's interests, including the disclosure of any conflicts of interest that might impair the attorney's ability to represent the client. One Florida court described the duty an attorney owes a clients as follows: "Implicit in every attorney/client contract under Florida law is a covenant by the attorney that he will conduct himself according to customary professional standards . . . . The attorney is under a duty to represent his client with the utmost degree of honesty, forthrightness, loyalty, and fidelity, and must resign if at any time in the course of litigation his interest in the suit becomes adverse or hostile to this client." Interestingly, some courts are expanding an attorney's duty of care to persons who are not clients. For example, under Florida law, beneficiaries to a will can bring a lawsuit against an attorney who improperly prepared or executed a client's will, resulting in the will being held invalid. Also, depositors in a failed savings and loan may sue attorneys who advised the savings and loan. Breach of Duty A lawyer is in breach of his or her duty of care if the lawyer fails to provide reasonably competent representation or violates his or her fiduciary obligations. While proving that an attorney had a conflict of interest or otherwise violated his or her fiduciary obligations may be straightforward, proving an attorney failed to provide reasonably competent representation is more difficult. Lawyers can disagree on whether a particular course of action is reasonably competent. And, it may be unclear whether an alternative course of action would have provided a different result. However, there are some behaviors that clearly go beyond the bounds of competent representation. An attorney who simply forgets a filing deadline and permits the statute of limitations to expire, thereby destroying a client's cause of action, is an obvious candidate for malpractice. Guide to Florida Law Page 27 of 48 Proximate Cause Causation is easy to prove if an attorney misses a deadline or gives clearly erroneous advice. But proving causation can be more difficult in cases where an attorney pursues a particular strategy that ends up injuring the client. In suing the attorney, the client (now plaintiff) must show that his or her injury is sufficiently related to the attorney's breach of duty as to be the proximate cause. This may entail showing what would have occurred had the attorney chosen a different course of action. But the variables attendant to proving "what might have been" are numerous, and a defendant-attorney may argue the injury would have occurred regardless. Keep in mind that suffering an injury as a result of an attorney's representation is not the same as malpractice. The attorney may have acted in the same manner as any reasonably competent attorney, and while the attorney might have caused the injury, if he or she did not breach the duty of care, he or she should not be held liable. Damages Successful plaintiffs are entitled to compensatory and possibly punitive damages (assuming the malpractice was willful or particularly malicious). Accountant Malpractice Like health care professionals and attorneys, accountants can be sued for malpractice. If an accountant fails to provide services at a level expected of a reasonably competent accountant and a client suffers injury as a result, the accountant may be liable for damages. Accountant malpractice lawsuits differ in a number of ways from medical or legal malpractice lawsuits. One of the more important differences is the role played by the rules of conduct for the accounting and auditing professions. These rules, known as Generally Accepted Accounting Principles (GAAP) and Generally Accepted Auditing Standards (GAAS), are frequently referred to in accountant malpractice lawsuits. While adherence to these rules is not an absolute defense to liability, it will be difficult for a plaintiff to prove an accountant who acted within the guidelines of these rules committed negligence. Another difference is that many accountant malpractice lawsuits are based on violations of federal and state statutes relating to the sale of securities. Financial statements generated by accountants are frequently used in connection with securities offerings and are often submitted with annual reports or other periodic filings companies must make in compliance with Security Exchange Commission requirements. If the financial statements are erroneous and lead to a negative on the securities markets, investors may try to recoup their losses by asserting claims against the accountants who prepared those financial statements. The statutes most commonly used to bring such claims are the Securities Act of 1933, the Securities Act of 1934, and the Racketeer Influenced and Guide to Florida Law Page 28 of 48 Corrupt Organizations Act (RICO). A detailed discussion of these acts is beyond the scope of this chapter, but an attorney experienced in accountant malpractice lawsuits can advise potential plaintiffs of the duties accountants have under these laws. Engineer and Architect Malpractice Engineers and architects can also be sued for failing to meet a specified duty. If a structure proves to be unsafe, the engineers responsible for building it or the architect who designed it can be held liable. Also, if an engineer or architect reviews a structure for a prospective buyer and carelessly misstates the structure's soundness or durability, he or she can be held liable. However, unlike medical and legal malpractice lawsuits, the theory of recovery in a lawsuit against an engineer or architect will likely be contract-based as opposed to tortbased. That is, the duty owed to a property owner derives not from the common law notion of negligence, but from any contracts between the property owner and the engineer or architect. It is, therefore, important for a person to have an attorney review such contracts before signing. An attorney should also review any modifications to a contract before they are finalized. Often, seemingly innocuous language can substantially change a person's responsibilities. Guide to Florida Law Page 29 of 48 Florida Alternative Dispute Resolution • Alternative Dispute Resolution o What Is ADR? o ADR Options  Mediation  Arbitration  Mediation-Arbitration  Neutral Fact-Finding  Mini-Trial o Finding an ADR Provider o Costs o Variety of ADR Choices o Resources Alternative Dispute Resolution For years people have complained about the cost, delay, and acrimony of litigation. Even if you win, going to court can be an expensive and emotionally draining experience. As a result, alternatives to the traditional litigation process have been growing in popularity around the country. These alternatives, known collectively as alternative dispute resolution (ADR), can be used to resolve all types of disputes, from simple neighborhood disagreements to complex, multi-party corporate conflicts involving large sums of money. What Is ADR? Stated simply, ADR is the process of resolving disputes without using the court system. The most widely used methods are mediation (where a neutral third person helps facilitate an agreement between the parties) and arbitration (where a neutral third person hears both sides of a dispute, then issues a decision). But, there are actually dozens of different procedures, each with its own unique structure, giving parties an abundance of ways to approach their particular problem. The allure of ADR is that it promotes faster and less costly settlements. Disputes that might last months or years in litigation, may, if the parties cooperate, be settled in a matter of days or weeks through ADR. Faster settlements mean lower costs and less emotional wear and tear on the parties. ADR has other benefits as well, for example, flexibility. Being able to pick and choose among ADR procedures permits parties to tailor the dispute resolution process to fit their Guide to Florida Law Page 30 of 48 needs. If the parties believe they can work out the dispute themselves, mediation is the best answer. If they need a third person to make a decision, arbitration is the proper course. Parties using ADR select a neutral third person with whom they feel comfortable and who has the background and experience necessary to understand the dispute, rather than getting whichever judge is available. The parties also decide on scheduling and procedural matters, such as how much discovery should be conducted. ADR's flexibility often leads to a more satisfying result. Statistics show that parties having used ADR and played a role in crafting the resolution process or the resolution itself are more apt to abide by the resulting decision or settlement. Moreover, ADR permits parties to resolve their dispute without destroying their relationship, whether personal or professional. Trials tend to turn disputes into contests with winners and losers. ADR, particularly mediation, is less opponent-oriented and allows parties to preserve and build upon their previous relationship. Another benefit of ADR is confidentiality. Litigation places a dispute in the public domain, often disclosing proprietary or personal information. With ADR, the entire matter is private unless the parties agree otherwise. Florida has incorporated a number of ADR programs into its court system. Under current Florida law, judges in civil lawsuits have the power to require that parties at least try to resolve their dispute outside the courtroom either through mediation or non-binding arbitration. Florida has instituted a certification process for mediators requiring that they meet specified education standards and complete a training program. There is no certification process for arbitrators as yet, but the state has suggested that arbitrators be members of The Florida Bar and have completed a training program. While parties are encouraged to choose a mediator or arbitrator with experience and knowledge, it is not necessary that he or she be certified by the state. A final point that should be made is that ADR may not be right for every situation. If the parties or their lawyers are especially acrimonious, non-binding ADR, particularly mediation, is probably not the forum for resolution. Neither is ADR appropriate if one or both parties need a judicial precedent as guidance for future conduct. Parties looking for well-established rules of procedure and evidence, wider discovery allowances, and the possibility of appeal may also prefer to go to trial. ADR Options The following is an overview of some of the more well-known ADR methods. Unlike litigation, where "one size fits all," ADR permits parties to choose among an increasing number of established procedures or design one of their own. Mediation Guide to Florida Law Page 31 of 48 Mediation is the most informal method of alternative dispute resolution. It involves an impartial third person (mediator) or a panel of mediators helping parties negotiate a settlement. Often, each side will meet in private with the mediator and then in a joint session with the other side. Resolution of the dispute is solely up to the parties since the mediator does not have any power. The mediator's task is to help the parties reach their own resolution. Mediation differs from litigation and arbitration because it seeks a solution that satisfies all parties. In litigation and arbitration, a judge or arbitrator hears evidence relating to a particular conflict and then decides who wins and who loses based upon applicable laws. Not so with mediation. Also, courts and arbitrators are limited by law as to what remedies they can provide. Mediation is limited only by the nature of the problem and the parties' own creativity. Sometimes parties go through mediation without reaching an agreement. In this case, parties may want to pursue arbitration or some other form of ADR, or they may want to go to court. One of the advantages of mediation is that it is entirely voluntary. Parties are not forced to agree to anything. If parties do not reach an agreement, the process of mediation often defines the issues more clearly and gives the parties a sense of the other side's perspective. Arbitration Like litigation, arbitration allows both parties to present their cases to a neutral third person or a panel of third persons who are experts in a particular area. The arbitrator or arbitration panel makes a decision regarding the dispute after conducting a hearing, which may include oral arguments and the presentation of evidence through witnesses and exhibits. Depending on the parties' choice, the decision can be binding or non-binding. The advantage of a binding decision is that once the decision is issued, the dispute is over, without any further costs. However, a binding arbitration decision can rarely be appealed and the parties are stuck with the decision whether they like it or not. A non-binding decision does not lock the parties into anything and can be helpful when the parties are looking for a basis from which to negotiate further. Arbitration is best used in cases involving factual conflicts. Many people feel more comfortable having their dispute settled by an expert who is uniquely capable in a particular area, rather than by a judge who is accustomed to handling a wide variety of cases and may not be well-versed in the area at issue. Mediation-Arbitration Mediation-arbitration combines mediation and arbitration. In this arrangement, the parties Guide to Florida Law Page 32 of 48 agree in advance that if they are unable to resolve their dispute using mediation, they will arbitrate and receive an advisory or binding judgment on all or part of the issues which remain in dispute. In these instances, the mediator will typically switch roles and, as arbitrator, provide the judgment. The mediation-arbitration process has some advantages over using mediation or arbitration alone. There is greater incentive for parties to cooperate in the mediation stage of the process because they know that if they are unable to come to an agreement voluntarily, they may have a solution imposed upon them in the arbitration stage. Similarly, mediating a dispute before arbitration affords the parties the opportunity to craft their own resolution on all or some of the issues, rather than have an independent third person decide the case for them. Neutral Fact-Finding Neutral fact-finding is an informal process in which an agreed-upon neutral third person is asked to investigate a dispute, usually one involving complex or technical issues. The neutral person analyzes the facts and renders his or her findings in a non-binding report or recommendation. This process can be especially useful in handling allegations of sex or race discrimination within a company. Often, such cases provoke strong emotions and internal division. If both parties are employees of the same company, there may be conflicts of interest that could interfere with a supervisor's or manager's ability to conduct a fair and impartial investigation. To avoid the appearance of unfairness, a company may turn to an outside neutral third person in hopes of reaching a settlement which all employees will respect. Mini-Trial In a mini-trial, each party makes a short presentation to a panel of experts. This panel usually consists of one or more neutral persons and a representative from each party. After hearing the arguments and evidence, the panel confers and issues a non-binding decision, providing the parties with an objective appraisal of their respective cases. Summary Jury Trial In a summary jury trial, the parties present their arguments and evidence to a mock jury consisting of six or more individuals. After conferring, the jury returns a non-binding verdict. This verdict provides the parties a basis for predicting what a jury might do in a real trial. The parties can question the mock jurors about their verdict and learn how they reached their decision. Finding an ADR Provider Several steps should be taken when choosing an ADR provider. Parties should ask potential mediators or arbitrators about their experience, training, and substantive knowledge about the issues in dispute. Success depends upon both parties feeling comfortable with the provider. If any of the parties feels that the provider has shown bias, Guide to Florida Law Page 33 of 48 has a conflict of interest, or lacks the skills or experience necessary to hear the dispute, that concern should be voiced and another ADR provider should be chosen. Costs ADR provides a variety of dispute resolution choices between pursuing litigation and private settlement between the parties. Depending on which ADR method is used, the process can be more adversarial, with the parties presenting arguments and an independent third person making the final decision, or more collaborative, with the parties themselves crafting the result. Variety of ADR Choices ADR provides a variety of dispute resolution choices between pursuing litigation and private settlement between the parties. Depending on which ADR method is used, the process can be more adversarial, with the parties presenting arguments and an independent third person making the final decision, or more collaborative, with the parties themselves crafting the result. Resources The Florida Dispute Resolution Center in Tallahassee was established in 1986 by the Florida Supreme Court and Florida State University College of Law as a statewide center for education, training, and research in ADR. For a list of certified mediators in your area or more information, call (904) 921-2910. The American Arbitration Association is the most established provider of ADR services nationwide. They have offices in Miami (305) 358-7777 and Orlando (407) 648-1185. Guide to Florida Law Page 34 of 48 Florida Felony & Misdemeanor Criminal Defense • Felony & Misdemeanor Criminal Defense (Florida)  Why Punish Criminals?  Elements of a Crime  Mental Capacity  Classification of Crimes o Types of Crimes  Assault  Battery  Carjacking  Homicide  Incest  Kidnapping  Robbery  Sexual Battery  Stalking  Theft o Justification for the Commission of Crimes o Juveniles and the Law o DUI o Definition o Process of a DUI Case o Penalties  Implied Consent and the Right to Refuse Testing  Trial  Standard of Proof and Possible Defenses  Appeal  1995 DUI Citations in Florida  The DUI citations breakdown for Florida is as follows: o Victim Services, Restitution and Compensation  Victim Services  Restitution  Compensation o Resources Felony & Misdemeanor Criminal Defense (Florida) Criminal law entails establishing boundaries between acceptable and unacceptable behavior in a civilized society. A crime is an act or omission that society, through the laws of its government, has deemed to be morally or politically harmful, not only to the victim of a crime but to society as a whole. For this reason, prosecutors in a criminal case are said to represent "the people" (e.g., The People of the State of California v. Orenthal James Simpson). If a person is convicted of a crime, he or she may be fined, imprisoned, or in some states such as Florida, executed. Federal and state governments have authority to create and Guide to Florida Law Page 35 of 48 enforce criminal law, though the scope of federal criminal jurisdiction is more limited than a state's jurisdiction. The federal government can only define and punish crimes committed in federally owned or controlled areas such as the District of Columbia and national parks, or regarding matters expressly stated in or prohibited by the United States Constitution or the United States Code, such as postal matters, interstate commerce, securities or federal elections. A state, on the other hand, has broad criminal jurisdiction over all internal issues relating to the health, safety, welfare and morals of its citizens. Why Punish Criminals? There are many reasons persons committing criminal acts are punished; one reason is retribution. A society outraged by a person's harmful acts often feels the need for revenge, and punishing the criminal tends to satisfy that need. Another reason is deterrence. Sending someone to jail or requiring him or her to pay a fine may deter not only that person from committing a future crime, but other persons as well. Deterrence is an argument often used in support of the death penalty. A third reason for punishment is incapacitation. For the time a criminal is in jail, he or she is off public streets and unable to commit further crimes. Public education is a fourth reason for punishment. The publicity surrounding the trial, conviction and punishment of a criminal educates the public about what is appropriate behavior and the consequences of violating the law. The final reason is rehabilitation. Criminals who are imprisoned have an opportunity to reevaluate their actions and reshape their values so that when they return to society they are able to function within the boundaries of the law. Elements of a Crime Every crime is statutorily defined by a list of elements. If a prosecutor persuades a jury (or a judge), beyond a reasonable doubt, that each of the elements of a crime has been met, the accused must be found guilty. If the elements have not been met or if reasonable doubts remain, the accused must be found not guilty. The elements of a crime typically include (1) a physical act (or omission), (2) the intent to commit the act, and (3) causation, i.e., the act and the intent causing or resulting in a violation of the law. Mental Capacity To be found guilty of a criminal offense, a person must have the mental capacity to form criminal intent. Florida law, however, presumes that no child under the age of seven has the mental capacity to form criminal intent. When a child is between the ages of seven and fourteen, the law presumes that the child still lacks the mental capacity necessary to form criminal intent, but that presumption can be overcome by evidence. At fourteen, a child is presumed to have the mental faculties necessary to form criminal intent. Insanity is another instance in which a person lacks the mental capacity to form criminal intent. Florida follows the M'Naghten Rule, which states that a defendant is entitled to an Guide to Florida Law Page 36 of 48 acquittal if, at the time of the crime, he or she lacked the ability to know the act was wrong or understand the consequences of his or her actions. The M'Naghten Rule can also be applied to other forms of mental disability such as senility, delusion, schizophrenia, and, in limited situations, intoxication. Classification of Crimes Florida has two criminal classifications: felony and misdemeanor. A felony is generally defined as any crime punishable by death or more than one year in prison. A misdemeanor is any crime punishable by imprisonment for less than one year. Florida also has a classification known as a noncriminal violation, which is an offense punishable by fine, forfeiture or civil remedy. Felonies and misdemeanors are further divided into different degrees. The following list shows the maximum imprisonment and fines for felonies and misdemeanors. *Capital Felony: death or life imprisonment with no parole *Life Felony: 40 years to life; $15,000 *Felony in the First Degree: 30 years; $10,000 *Felony in the Second Degree: 15 years; $10,000 *Felony in the Third Degree: 5 years; $5,000 *Misdemeanor in the First Degree: 1 year; $1,000 *Misdemeanor in the Second Degree: 60 days; $500 Types of Crimes Assault An assault is the intentional and unlawful threat, by word or act, of violence against a victim in which the defendant has the ability to carry out the threat and the victim has a well-founded fear that violence is imminent. Assault is a second degree misdemeanor. Aggravated assault is assault with a deadly weapon in which the defendant did not have an intent to kill but did have an intent to commit a felony. Aggravated assault is a third degree felony. Battery Battery is the intentional touching or striking of a victim against his or her will causing the victim harm. Battery is a first degree misdemeanor. Aggravated battery results when the defendant intentionally or knowingly causes the victim great bodily harm, permanently disables or disfigures the victim, uses a deadly weapon or knew (or should have known) the victim was pregnant. Aggravated battery is a second degree felony. Carjacking Carjacking is the forcible or violent taking of a motor vehicle from a person or the owner Guide to Florida Law Page 37 of 48 with the intent of either permanently or temporarily depriving the person or owner of the motor vehicle. Carjacking is a first degree felony. Homicide Homicide is the unjustified killing of a human being. Homicide can be classified as murder or manslaughter. Under Florida law, there are three degrees of murder. Murder in the first degree is the premeditated killing or the death of a person during the commission of one of the following enumerated felonies: drug trafficking, arson, sexual battery, robbery, burglary, escape (from detention, arrest, trial or punishment), aggravated child abuse, aircraft piracy, bombing, fatal drug distribution, carjacking or home invasion robbery. A person can be convicted of first degree murder even though he or she did not actually kill anyone, did not plan to kill anyone, or was not present at the crime scene but was involved in the commission of an enumerated felony that resulted in a person's death. Murder in the first degree is a capital felony. Murder in the second degree is an unjustified killing perpetrated by "an act imminently dangerous to another and evincing a depraved mind regardless of human life" or the killing of a person during the commission of an enumerated felony in which the defendant was not the killer but was involved in committing the felony. Murder in the second degree is a first degree felony. Murder in the third degree occurs when a person kills during the commission of a nonenumerated felony. Murder in the third degree is a second degree felony. Manslaughter is the unlawful killing of a person that does not rise to the definitional level of a murder. Manslaughter is a second degree felony. Incest Anyone who marries or has sexual intercourse with a person to whom he or she is related by lineal consanguinity (child, parent, grandparent) or with a brother, sister, uncle, aunt, nephew or niece is guilty of incest. Incest is a third degree felony. Kidnapping Kidnapping is the forcible and secret abducting, confining or imprisoning of a victim against his or her will with intent to (1) collect a ransom, (2) commit or facilitate the commission of a felony, (3) inflict bodily harm or terrorize the victim, or (4) interfere with any governmental or political function. Kidnapping is a first degree felony. Anyone who kidnaps a child under the age of 13 and commits aggravated child abuse, sexual battery or a lewd act in the presence of the child commits a life felony. Robbery Robbery is the forcible, violent or threatening taking of property from another with intent to either permanently or temporarily deprive the person or owner of the property. Robbery is a second degree felony. If in the course of a robbery the defendant carries a firearm or other deadly weapon, the robbery is a first degree felony. Home invasion Guide to Florida Law Page 38 of 48 robbery occurs when the defendant enters a victim's home and robs the occupants in their dwelling. Home invasion robbery is a first degree felony. Sexual Battery Sexual battery is used to describe both forcible rape and statutory rape (sexual relations with a minor). This includes oral, anal or vaginal penetration by, or union with, the sex organ of another, or the anal or vaginal penetration by any other object. Depending on the circumstances, sexual battery can be a capital felony, life felony or a first or second degree felony. Anyone soliciting another to engage in an act that would constitute sexual battery is guilty of a third degree felony. Stalking Any person who willfully, maliciously and repeatedly follows or harasses another person is committing the crime of stalking, a first degree misdemeanor. Aggravated stalking occurs when a stalker makes "a credible threat with the intent to place a person in reasonable fear of death or bodily injury." Aggravated stalking is a third degree felony. Theft Florida has combined the crimes of larceny, embezzlement, false pretenses and receiving stolen property into the category of theft. A person commits theft when he or she knowingly obtains or uses the property of another with intent to either temporarily or permanently deprive the other person of the property. Theft of property valued at $100,000 or more is grand theft in the first degree and a first degree felony. Theft of property valued at $20,000-100,000 is grand theft in the second degree and a second degree felony. Theft of property valued at $300-20,000 is grand theft in the third degree and a third degree felony. Theft of any other property is petit theft and a second degree misdemeanor. (The category of larceny, the taking of property without consent and with intent to steal, is still used for reporting purposes.) Justification for the Commission of Crimes In some situations, the law will view the commission of a crime as justifiable. The best example of a justifiable crime is one committed in self-defense. As a general rule, persons are permitted to use a reasonable amount of nondeadly force to protect themselves from an unlawful attacker. A person may also use a reasonable amount of nondeadly force in defense of others (particularly family members) or in his or her home. Florida law permits the use of deadly force in self-defense only if a person reasonably believes that such force is necessary to prevent imminent death or great bodily injury. Depending on the circumstances, coercion and mistake are two other instances for which committing a crime may be justified or the penalty mitigated to some extent. Guide to Florida Law Page 39 of 48 Juveniles and the Law Persons under eighteen are considered juveniles under Florida law. The juvenile court system is part of the circuit court and its purpose is to rehabilitate, not just punish, juveniles in trouble with the law. If a juvenile is arrested, a law enforcement officer must attempt to notify the child's parent, guardian or legal custodian. Juveniles have the right to consult an attorney before making any statement to the police. A child can be taken to the county jail and held for up to six hours to be fingerprinted and photographed if a reasonable belief exists that he or she has committed a crime. If a juvenile is charged with a crime, he or she has the right to be represented by an attorney at all stages of any juvenile court proceeding. If a judge determines the parents are financially capable, the judge may order the parents to provide an attorney. Otherwise, the judge will appoint a public defender to represent the child. It should be noted that there is no constitutional right to be tried as a juvenile. There are provisions in Florida law permitting the state attorney to transfer certain charges or certain children to the adult criminal courts. If a juvenile court finds that a child is responsible for a crime, the child is said to be delinquent. Unlike criminals, a delinquent child cannot be sentenced to prison. Instead, the juvenile court may order: *The child be placed on juvenile probation (permitting the child to live at home while imposing certain limitations on his or her freedom) *The child be committed to a licensed childcare agency *The child be committed to the Department of Juvenile Justice *The child's driving license be revoked or suspended *The child or the child's parents make restitution *The child to participate in a community work project Juvenile records are kept confidential and separate from other court records. Access is limited to the child, his or her attorney, the child's parents, the Department of Juvenile Justice, law enforcement and some school personnel. Juvenile records are not accessible to the general public. However, juvenile court proceedings are open to the general public and the press is free to publish any information gathered at these proceedings. DUI Driving Under the Influence (DUI) ranks fourth behind larceny, narcotics and assault as Florida's most common crime. Definition DUI can be committed in two ways. The first is driving or being in actual physical control of a vehicle while under the influence of alcohol or certain prohibited substances to the extent that a person's normal faculties are impaired. The second does not involve impairment of normal faculties, but requires a person driving or in actual physical control of a car to have a blood alcohol level of 0.08 percent or above. Actual physical control is Guide to Florida Law Page 40 of 48 not clearly defined under Florida law, but courts seem to interpret the phrase to mean that the person was near the driver's seat and, if he or she wanted to, could have driven. For example, if an intoxicated person is seated behind the wheel or lying on the seat near the wheel of a stationary vehicle with the keys in the ignition or nearby, he or she can be charged with DUI. It should also be noted that Florida's DUI laws apply to any kind of vehicle, including bicycles and farm equipment. Process of a DUI Case After stopping a vehicle, a law enforcement officer will either order the driver to exit the car or approach the car while the driver remains inside. Under Florida law, a driver is required, if asked, to produce a vehicle registration document, proof of insurance and a driver's license to the officer. A driver has no legal obligation to answer any questions asked by the officer, including those related to sobriety, destination or point of departure. The officer may ask the driver to exit the car and, with reasonable suspicion, perform roadside tests. The National Highway Traffic Safety Administration has devised three tests believed to indicate impairment: an eye test, a walk-and-turn test and a stand-onone-leg test. Some officers may use variations of these tests. The driver, however, is under no legal obligation to perform the tests (though evidence of a driver's refusal can be used in court). If, in the officer's opinion, there is probable cause to believe a person is guilty of DUI, he or she will be arrested. Penalties Even if a person is not convicted of DUI, the penalties can be severe. Under Florida law, anyone stopped by a law enforcement officer and given a breath test indicating a blood alcohol level of more than 0.08 percent or anyone who refuses to take a breath, blood or urine test faces, after thirty days of the arrest, an immediate administrative suspension of his or her driver's license for six to eighteen months. A first offender must then wait thirty to ninety days after the effective date of his or her license suspension in order to be eligible for a "business purpose only license." A person may challenge the suspension, but should it not be reversed, the offender must complete an educational program to regain his or her license after the suspension period expires. The increased cost for automobile insurance due to an alcohol-related suspension is often substantial. A DUI conviction brings additional penalties. A first-time offender faces a fine of $250500, imprisonment of up to six months, suspension of his or her driver's license (even if the license was already administratively suspended by the arresting police officer), fees and costs (usually around $1,000), the impoundment of his or her vehicle for ten days, probation for up to one year, a minimum of fifty hours of community service and a permanent criminal misdemeanor conviction on his or her record. Moreover, the cost of his or her automobile insurance will likely triple over the next three years and the offender will have to face the social consequences of being a known DUI offender. The penalties for subsequent DUI convictions are enhanced significantly. For example, a second conviction within five years of the first conviction can mean a fine of $500-1,000, Guide to Florida Law Page 41 of 48 up to nine months in jail with a mandatory minimum of ten days in jail, impoundment of the offender's vehicle for thirty days (if the second conviction is within three years of first conviction), driver's license suspension of at least five years and fees and costs of about $1,500not including the cost of insurance, which will be extremely high. A fourth DUI conviction is a felony, regardless of the time period, and the offender's license is permanently revoked. If there is any property damage, personal injury or death involved in a DUI incident, a person faces up to fifteen years in prison, depending on the circumstances. Implied Consent and the Right to Refuse Testing Florida law provides that any driver operating a motor vehicle within the state who is lawfully arrested for DUI must consent to a chemical or physical test for the purpose of detecting alcohol or any other prohibited substance. The test may take the form of breath, blood or urine analysis. If a person refuses to take a test, his or her license will be administratively suspended for one year. If a person takes a test and is determined to have driven or been in control of a vehicle with a blood alcohol level of more than 0.08 percent, his or her license will be administratively suspended for six to eighteen months, depending on the circumstances. Remember that an administrative suspension of a driver's license is separate from, and often in addition to, the penalties of a DUI conviction. Trial A DUI trial can be as complex as any criminal case. Defense and prosecuting attorneys frequently argue over constitutional issues such as unreasonable search and seizure, probable cause for arrest, double jeopardy and a defendant's right to a speedy trial. Scientific experts in the fields of serology, physics and chemistry are often asked to testify. One to several dozen witnesses may be asked to take the witness stand and the trial itself may last four to five days. Given the seriousness of the crime and the severity of the punishment under Florida law, it is important for attorneys on both sides to be adequately prepared to argue their cases. Standard of Proof and Possible Defenses Under the United States system of justice, all defendants are innocent until proven guilty. To prove a defendant guilty of DUI, the prosecution must persuade a jury (or a judge) that the defendant committed the crime "beyond a reasonable doubt." This standard of proof is higher than that required in a civil trial. To find someone guilty beyond a reasonable doubt is to believe that, in light of the evidence presented, there are no doubts of the defendant's guilt based on reason. There may be fanciful or unlikely doubts, but no reasonable doubts. A defendant's attorney will closely scrutinize all elements of the case against his or her Guide to Florida Law Page 42 of 48 client but will pay particular attention to the procedures the police followed in arresting and testing the defendant. If, for example, the prosecution fails to prove the police had probable cause to stop and arrest the defendant, the case will fail even if the defendant was indeed driving drunk. Police are constitutionally prohibited from indiscriminately stopping or arresting people. Another argument a defense attorney might make is that while the defendant may have had a blood alcohol level of more than 0.08 percent at the time of the test, when he or she was stopped, his or her blood alcohol level was still within legal bounds. The level of alcohol in a person's bloodstream does not immediately increase upon drinking alcohol. The absorption of alcohol into the bloodstream takes time and is based on a variety of factors (e.g., a person's weight, metabolism, amount of food in the stomach). If the police arrested the defendant before he or she was legally drunk, the defendant may be acquitted. Appeal If a defendant is convicted of DUI, he or she is still entitled to an appeal. Appeals from a guilty plea concern only the correctness of the sentence, not the innocence or guilt of the defendant. Appeals from a conviction relate to whether the defendant's right to trial was violated in any substantial way. 1995 DUI Citations in Florida In 1995, more than 60,000 persons were given DUI citations in Floridathe equivalent of about 166 persons per day. (9,000 more citations than in 1994.) Although Florida has taken steps to reduce the number of intoxicated persons on the highwaysFlorida laws are among the most severe in the countrythere were still 24,873 alcohol-related accidents in 1995 and 1,073 alcohol-related traffic deaths in 1995 (up from 987 in 1994 and from 944 in 1993). The DUI citations breakdown for Florida is as follows: Florida Total: 60,467By Selected County: Brevard (includes Titusville, Palm Bay)2,303 Broward (includes Ft. Lauderdale)5,026 Collier (includes Naples, Everglades City)987 Dade (includes Miami, Coral Gables)9,670 Duval (includes Jacksonville, Atlantic Beach)3,676 Escambia (includes Pensacola)1,284 Hillsborough (includes Tampa)4,120 Lee (includes Ft. Myers)1,727 Leon (includes Tallahassee)575 Marion (includes Ocala)814 Guide to Florida Law Page 43 of 48 Orange (includes Orlando)3,685 Palm Beach (includes Boca Raton)2,811 Pinellas (includes St. Petersburg)4,104 Polk (includes Lakeland)1,036 Sarasota (includes Sarasota)1,343 Volusia (includes Daytona Beach)1,521 Victim Services, Restitution and Compensation Victim Services Florida law enforcement personnel are required to provide victims with information regarding available victim service programs, including: *The right to request restitution (see below) *Crisis intervention services, support and bereavement counseling and community-based victim treatment counseling *The role of the victim in the criminal justice process, the legal rights of the victim and the stages of the criminal justice process *The availability of protection for the victim *The availability of victim compensation (see below). Restitution Under Florida law, an offender may be required to make restitution in addition to any criminal sentence. Restitution for bodily injury, lost income and funeral expenses can be court ordered for the victim or the estate and next of kin of the victim if the victim died as a result of the criminal offense. Compensation In recognition of the many innocent persons who suffer personal injury or death as a result of adult or juvenile crime, Florida passed the Florida Crimes Compensation Act, which provides government financial compensation to eligible victims. To be eligible to receive compensation, a person must be a victim, an intervenor (someone who aids another and suffers bodily injury or death as a result of trying to prevent a crime, lawfully apprehending a suspected criminal or helping a victim of crime), a surviving spouse, parent, child or other dependent. The amount of an award is based on the actual needs of the person requesting assistance. The maximum compensation award permitted is $10,000, including all costs or losses. Emergency awards are also available. A claim for a financial award must be filed no later than one year after the crime occurred or after the death of the victim or intervenor. Guide to Florida Law Page 44 of 48 However, if the Attorney General's Office determines there is good cause, the deadline may be extended to two years after the crime or death. Resources For more information on victims' compensation, write to the Office of the Attorney General, Victims' Compensation, PL-01, The Capitol, Tallahassee, FL 32399-1050 or call (904) 488-0848. The Attorney General's Office also maintains a toll-free hotline for crime victims at (800) 226-6667. The Florida Bar publishes If You Are Arrested in Florida and also Juvenile Arrest. To obtain either of these pamphlets, call The Florida Bar at (904) 561-5834. More information concerning drunk driving can be obtained by writing to Mothers Against Drunk Driving (MADD) of Florida, 114 West Fifth Avenue, Tallahassee, FL 32303 or by calling (904) 681-0061 or the Victims' Hotline at (800) 772-6233. The Florida Department of Highway Safety and Motor Vehicles also has information relating to drunk driving that can be obtained by writing to the Florida Department of Highway Safety and Motor Vehicles, Office of Management & Planning Services, Room A430, Neil Kirkman Building, Tallahassee, FL 32399 or by calling (904) 488-3666. Reviewed and edited by Leading Florida Attorney E. C. Deeno Kitchen at the law firm of Kitchen Judkins Simpson & High. This chapter was adapted, in part, from a paper prepared by Richard J. Essen at the law firm of Essen, Essen, Susaneck, Canet & Lipson, P.A. Guide to Florida Law Page 45 of 48 Web Resources Florida State of Florida CONSTITUTION • • Constitution Executive Judicial Legislative Legal Guides General Sources Florida Constitution (Florida Legislature) Florida's Constitutions: The Documentary History (Florida Constitution Revision Commission) includes the Constitutions of 1838, 1861, 1865, 1868, 1885, and 1968, with amendments EXECUTIVE • • • • • • • Florida Administrative Code (Florida Department of State) Florida Administrative Weekly (Florida Department of State) Attorney General Opinions 1972Florida Governor Florida Attorney General Florida Division of Elections Florida Secretary of State [return to top] JUDICIARY • • • • • • • • • • • • Florida Supreme Court Opinions (University of Florida College of Law) June 1987Florida Supreme Court Opinions (FindLaw) September 1995Florida Supreme Court Opinions and Briefs (Florida State University College of Law) October 1999Florida's District Courts (Florida Courts) U.S. District Court, Middle District Court of Florida U.S. District Court, Northern District of Florida U.S. District Court, Southern District of Florida U.S. Court of Appeals, 11th Circuit Opinions (U.S. Courts) November 1994U.S. Court of Appeals, 11th Circuit Opinions (Emory Law School) November 1994U.S. Court of Appeals, 11th Circuit Opinions (FindLaw) December 1994Florida Courts Gavel to Gavel (Florida State University and WFSU-TV) oral arguments onlin Guide to Florida Law Page 46 of 48 • Florida Supreme Court Law Library and Catalog [return to top] LEGISLATURE • • • • • • • • • Florida Statutes (Florida Legislature) Digest of General Laws (Florida Legislature) Florida State Legislature - composed of the Senate and House of Representatives Florida Bills (Florida Legislature) 1997- (also available from the Senate and House sites) Florida Senate Publications (Florida Senate) Florida House Publications (Florida Senate) About the Legislature (Florida Legislature) Florida Legislature, Office of Program Policy Analysis and Government Accountability includes FGAR, the Florida Government Accountability Report Kid's Page (Florida Legislature) [return to top] LEGAL GUIDES AND MISCELLANEOUS • • • • • • • • • • E-Transaction Law Resources: Florida (Baker & McKenzie) Florida Bar Association includes Find a Lawyer and Ethics Opinions Florida Constitution Revision Commission Law Schools: o Florida Coastal School of Law - Library and Catalog o Florida State University College of Law - Library and Catalog o Nova Southeastern University Shepard Broad Law Center - Library and Catalog o St. Thomas University School of Law - Library and Catalog o Stetson University College of Law - Library and Catalog o University of Florida Levin College of Law - Library and Catalog o University of Miami School of Law - Library and Catalog LLSDC Legislative Source Book: Florida Research Guides: o Bibiographies (Nova Southeastern University Law Library) o Florida Legislative History Research (University of Miami Law Library) o Legal Research Guides (Nova Southeastern University Law Library) o Research Guides (University of Miami Law Library) Self Help Center (Florida State Courts) South Florida Association of Law Libraries Southeastern Chapter of the American Association of Law Libraries WWW DIRECTORIES / PORTALS: o Guide: U.S. States & Territories: Legal Links (Law Library of Page 47 of 48 Guide to Florida Law o o o o o o o [return to top] Congress) AllLaw.com Florida Resources Cornell Legal Information Institute: Florida FindLaw: Florida Georgetown University Law Library: Florida Google Florida Law LexisOne: Florida Yahoo Florida Law GENERAL SOURCES • • • • • • • Florida - official site Florida Division of Libraries and Information Services - Catalog - Ask a Librarian Florida Libraries (LIBCAT) Florida State and Local Government (Library of Congress) Google Florida State and Local Government on the Net: Florida (State Local Gov) Yahoo Florida Library of Congress Ask a Librarian ( June 16, 2007 ) Guide to Florida Law Page 48 of 48