- 1 YOUR LAW FIRM – JOHN BALES ATTORNEYS
- 2 COMMUNICATING WITH YOUR JOHN BALES ATTORNEYS TEAM-ATTORNEY/CLIENT PRIVILEGE AND WORK PRODUCT DOCTRINE
- 3 WAIVERS OF CONFLICTS OF INTEREST
- 4 DOS AND DON’TS
- 4.1 DOS
- 4.1.1 Do Stay In Communications With Us and Immediately Update Us on Any Changes in Your Contact Information.
- 4.1.2 Do Always Ask Us Questions If You Do Not Understand Some Aspect of Your Case.
- 4.1.3 Do Read All of Our Letters to You and Let Us Know If You Have Any Questions About Them.
- 4.1.4 Do Comply With Our Requests for Information, Documents, and Records and Timely Provide Them to Us.
- 4.1.5 Do Timely Appear at All Meetings, Depositions, Hearings, Etc. that are Scheduled with You.
- 4.1.6 Do Look at Your Case as a Judge and Jury will See It.
- 4.1.7 Do Tell Us Everything about Your Case Whether You Think it Helps or Hurts Your Case.
- 4.1.8 Do Tell the Truth.
- 4.2 DON’TS
- 4.2.1 Don’t State Facts that are Beyond Your Knowledge Without Clarifying with Us that You Think This May Be True.
- 4.2.2 Don’t Let the Opposing Attorney or the Circumstances Get You Angry Or Frustrated.
- 4.2.3 Don’t Try to Decide Before You Answer Whether a Truthful Answer Will Help or Hinder Your Case.
- 4.2.4 Don’t Discuss Your Case With Others Because the Attorney/Client Privilege May Not Apply.
- 4.1 DOS
- 5 PURSUING A TYPICAL NURSING HOME ABUSE AND NEGLECT LAWSUIT
- 6 DEPOSITION
- 7 MOTIONS THAT MAY BE FILED
- 8 SPECIAL CONSIDERATIONS FOR NURSING HOME ABUSE CLAIMS
- 9 TYPES OF CLAIMS
- 10 DAMAGES
- 11 ATTORNEYS FEES AND COSTS
- 12 STOPPING NURSING HOME ABUSE
- 13 IMPORTANT REMINDERS
- 14 MAKE SURE ALL OF YOUR QUESTIONS ARE ANSWERED
Your attorney team consists of attorneys, client managers, records managers, law clerks, and other support staff. John Bales Attorneys is “AV” rated, the highest rating given by the lawyer rating service Martindale Hubbell, and has many years of combined experience in representing injured parties. The use of advanced technology such as case management software, document imaging, and an in-house law library with computer-based legal research resources further enhances our ability to pursue your claim. Our case management software allows your entire team to manage your case.
Our firm is divided into two teams: Pretrial Team and Trial Team. Each of the two teams has several attorneys, and each attorney manages a team of support staff.
The Pretrial Team will typically handle cases from the time the case is accepted for representation through the pre-lawsuit negotiations with the at-fault party’s insurance company, including waiting until you have reached maximum medical improvement and the preparation and sending of a demand package. The above may include, but is not limited to, (1) accepting a case in which our firm will provide representation, (2) signing up new cases (with assistance of an Intake Manager), (3) communicating with the client about the facts of the incident, injuries and other damages, and the treatment client is receiving from health care professionals, (4) obtaining police reports and other investigative information including property damage and wage loss information, (5) obtaining witness statements from witnesses the client inform us of, (6) obtaining answers to client’s questions, (7) obtaining medical records from health care providers clients inform us they are treating with, (8) preparing and sending demands, and (9) negotiating a settlement, if possible.
The Trial Team will usually handle cases from the time the file is accepted for litigation. This may include, but is not be limited to, (1) preparing and filing a complaint with the court, (2) serving process, (3) requesting, responding, and scheduling discovery, and (4) scheduling and representing client at hearings, mediation, and trial. In essence, it is taking the case from filing of the lawsuit through trial.
Personal Injury Attorneys who practice on the Pretrial Team will prepare your case with the goal of negotiating a reasonable settlement without the necessity of filing a lawsuit. However, if the insurance company will not make a reasonable offer, under the circumstances, to settle your case while it is with the Pretrial Team, the Trial Team will be asked to evaluate whether the case is one that should be litigated or taken to trial. If the Trial Team believes that a lawsuit may be necessary to obtain a reasonable resolution and you agree to filing a law suit, the case will be transferred to Team Trial and will proceed under the direction of one of the firm’s litigation attorneys. In some instances, we may have other law firms participate in your representation. This will not increase the amount of the attorneys’ fees or costs. Of course, we will advise you if this should occur.
We believe this innovative team concept helps us to more efficiently pursue your claim. With the inclusion of a Pretrial team as well as a Trial team, we are able to better serve you by utilizing attorneys and team members that specialize in the different processes of the law. Please understand that as your case progresses, your team of attorneys and client managers may change to improve service to you and assist in the effective resolution of your case. We will keep you advised of any such changes in your team.
Please consider going to our website, www.JohnBales.com, or the booklet titled “Information About John Bales Attorneys”, which was included in your initial representation package to obtain additional information about us.
As you know, communications between you and us as your law firm are important and are protected by the Attorney/Client Privilege. These communications can be by telephone (home, mobile, and work), in person meetings, email (personal only), and/or mail to the address you provided to us. Accordingly, please immediately advise us in writing of any change to your telephone numbers (home, mobile, and work), email addresses (personal only), and/or your mailing address. Unless you notify us otherwise in writing, we will be using the provided addresses and telephone numbers for all communications with you as is appropriate.
Please keep in mind that the Attorney/Client Privilege only applies to communications between you and members of our firm, and you should not discuss your case with anyone or provide them with any of the documents you receive from our firm because such communications may then become discoverable. Additionally, you should not be receiving any communications from our office at your work email, only your personal email. There have been court decisions holding that emails sent to an office email address are not protected by the Attorney/Client Privilege.
Sometimes family members of our client will call and want to discuss your case with us. We normally cannot do this if our client is 18 years or older until you are willing to sign a waiver and acknowledgement that we will send you that informs you that you will be waiving your attorney-client privilege as to any information we discuss with this family member. These family members sometimes get upset with us when we decline to respond to their requests for information. We request that you explain this to your family members and let us know if you want a copy of this waiver and acknowledgment, we are not at liberty to discuss your case with them and let us know if you want a copy of this waiver and acknowledgment.
Additionally, any documents we request that you prepare are protected by the Attorney/Client Privilege and Work Product Doctrine, and will be protected from discovery as long as you only provide it to members of our firm. Of course, documents such as your medical records that were prepared by others are not protected and are discoverable.
Being able to communicate with you about your case at any time is very important. If you have not already done so, please confirm the contact information specified below is accurate and complete. Additionally, continue to provide us with any updated and missing information so that we may always have current methods to contact you throughout the course of your case:
- Home Address.
- Home Phone Number.
- Cellular Telephone Number.
- Work Phone.
- Personal Email Address (Please do not provide us with a work or school email address because any communications sent to a work or school email address are likely not protected by Attorney/Client Privilege).
We attempt to save our clients costs by emailing letters and other documents to them instead of having our clients incur the cost of postage for mailing such documents. Accordingly, if you give us your personal email address, we will use that email address to communicate with you unless you advise otherwise in writing. If you have not yet provided us with an email address, which gives us the ability to email documents to you, please do so if it is appropriate.
In the event we cannot reach you, the emergency contact we have on file is the following:
Please also make sure that we have complete and accurate information for your emergency contact(s) that we may contact if we are unable to reach you using the above methods. The information we need includes, but is not limited to, the following:
- Emergency Contact(s) Name.
- Emergency Contact(s) relationship to you.
- Emergency Contact(s) Home Address.
- Emergency Contact(s) Home Phone Number.
- Emergency Contact(s) Cellular Telephone Number.
- Emergency Contact(s) Personal Email Address.
Although you need to confirm that you have provided us with contact information for your emergency contact(s), we plan only to ask them how to reach you and do not plan to discuss your case with them unless you give us permission to do so. Generally, we will contact an emergency contact if we are unable to reach you. Of course, if you would like for us to discuss the case with your emergency contact(s), you can contact us and we can discuss the risks and benefits of such communication including, but not limited to, the lack of attorney/client privilege for any discussions for which the emergency contact is involved.
If any of the contact information changes for you or any of your emergency contact(s), please let us know immediately. If you will be out of town for an extended period of time, we request that you inform us of this as well.
You will have a “point of contact” attorney and client manager. You will also have other team members that you can speak to when your point of contact attorney is not available. Although your attorney may not always be immediately available to answer your questions directly, you may be able to obtain an answer to most of your questions from another member of your team. Additionally, you can always ask to speak to the Staff Administrator, who is also dedicated to serving you.
For your convenience, we offer local telephone numbers for our clients to call our office at any time. To find the local telephone number in your area, ask a member of your team or go to our website, www.JohnBales.com and click on “Contact Us”.
At various times throughout your case, you may receive correspondence or other documents from us. Please review them carefully and comply with any request as soon as it is received. The faster we receive all necessary information, records, and documents, the faster your case will be in a position to attempt to resolve it. Again, it is your responsibility to ensure that we have the most current contact information for you, so please contact your team if your mailing address, telephone number, or personal email address change.
ELECTRONIC COPY OF DOCUMENTS
We may image and electronically file all documents (collectively, the “Imaged Documents”) and destroy the originals of the Imaged Documents, including all original signatures on those documents. In the agreement you signed with us, you authorized us to take this action, and understood that, as a result, neither the original documents, nor any of the original signatures on such documents, will remain available to you or us for any purpose including, but not limited to, for use in any legal proceeding arising out of or relating to the documents (“Proceeding”). You knowingly, willingly, and expressly: (1) waived all rights relating to, and (2) agreed, based on our reliance on, among other things, your agreement and authorization, that you are estopped from asserting any claim, defense, or objection, whether evidentiary or otherwise, arising out of or related to the imaging and destruction of original documents and all original signatures on such documents, including, without limitation, any claim, defense, or objection arising out of or related to our introducing and/or court accepting, into evidence in any Proceeding copies of Imaged Documents, including all imaged signatures, in place of original documents.
As addressed, in some cases we represent more than one person/entity from the same incident. If that is the case, we represent each and all persons/entities listed in the “Waiver and Authority to Represent and Contingency Fee Agreement”. In that agreement you agreed that each listed person/entity has asked us to represent them and have provided similar information relating to the above referenced incident. You are aware that a potential conflict of interest may exist and/or develop among those listed, others, and/or with us. After considering these matters and having the opportunity to discuss them with one of our attorneys, you waived any conflict of interest that may now or in the future exist. You further agreed that we may, in our sole discretion, withdraw from representing any of the persons/entities and represent another. You agreed and understand that any information provided to us will be shared with all listed persons/entities.
If you have any further questions about this, please write to us.
Maintaining a clear line of communication can ensure that both you and we are up to date on all aspects of your case. This includes any new information that becomes available to us that can directly affect you and alerting us in any changes to yourself. Please ensure that we are updated on any changes in your contact information so that we can better serve you.
Do Always Ask Us Questions If You Do Not Understand Some Aspect of Your Case.
process of resolving your case can sometimes seem overwhelming and laborious. If you are ever put into a situation where you do not understand something or are unsure how to proceed please do not hesitate to ask us any questions that you may have. Every member of your team has a role that revolves around attempting to make you comfortable and aware of aspects of your case and we are eager to answer your questions.
The letters and emails that we send to you are to provide you with information pertaining to your case. It is important that you read them thoroughly and completely. If you ever receive correspondence from us that you do not understand, we encourage you to ask questions to clarify any information presented in our correspondence with you.
By providing us with any requested information, documents, and records, we can provide you with quality care and service. Some types of documents and information that we may request includes but is not limited to medical records, driver’s licenses, authorizations, change of address, etc.
If you have been schedule to appear at a meeting, deposition, or hearing it is imperative to your case that you arrive timely and prepared. If for some reason you are unable to appear, do let us know as soon as possible so we can try and secure other arrangements.
A good “rule of thumb” is (1) always respond to requests as you would want a person to respond to you and (2) to look at your case as a judge and jury will look at it. When you discuss your case with us, think about how that judge and jury will observe your behavior, listen to the questions and answers, and decide the case on the basis of whom they believed and whom they liked more. A helpful perspective is to assume that the judge and jury are of diverse race, religion, and status in life. Assume that some would naturally like you and some would naturally dislike you. Obviously, this setting suggests caution and careful selection of words.
We need to know everything about your case. It is more than likely that the insurance company will investigate and discover information about you. If we are in the know for every positive and negative aspect of your case, we will be better prepared for when and if the opposing counsel attempts to use some knowledge against you. Therefore, we must know this information as well.
Of course, this does not need to be stated. Everyone understands this. This paragraph is not included because of doubt about your credibility or honesty. On the contrary, we have faith in your integrity. However, in our opinion, every lawyer is obligated by the Rules of Professional Conduct to specifically inform his clients to testify honestly.
The truth, whether in the deposition or on the witness stand at trial, or speaking with us will never really hurt a litigant as much as a fabrication. A lawyer may be able to successfully “defend or explain” the truth, but there is no defending or explaining why a witness lied or concealed the truth. In the eyes of the judge or jury, untruth devastates the credibility of a witness and hurts immeasurably. Florida law also has provisions directly on point. For example, section 57.105, Florida Statutes addresses the use of sanctions for unsupported claims or defenses. Also, pursuant to section 817.234, Florida Statutes, any person who, with the intent to injure, defraud, or deceive any insurer or insured, prepares, presents, or causes to be presented a proof of loss or estimate of cost or repair of damaged property in support of a claim under an insurance policy knowing that the proof of loss or estimate of claim or repairs contains any false, incomplete, or misleading information concerning any fact or thing material to the claim commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.803, or s. 775.084, Florida Statutes.
You may be asked a question that you feel you should know the answer to, but aren’t sure. Sometimes you may be tempted to guess at or estimate the answer to avoid admitting lack of knowledge. If you do not know an answer to a question, even though you think you may appear uninformed or evasive, let us know that you do not and then inform us of what the answer may be.
This will affect your ability to objectively see your case and to help us better prepare your case.
Always answer truthfully. You should not change your answer because of the effect you believe the answer will have on the case.
Remember, the insurance company, opposing attorney, and the opposing party are not your “friend” for purposes of this case. Do not let their friendly manner cause you to drop your guard.
Ch. 400 of the Florida Statutes governs nursing home abuse and neglect lawsuits. This section will outline the typical procedure for pursuing an elder abuse case against a nursing home, including expert review, the mandatory nursing home pre-suit period, pre-suit mediation, litigation and trial.
After hiring our firm, your nursing home abuse attorney will send a records request to the nursing home, pursuant to section 400.145, Florida Statutes. Once your attorney has collected the appropriate records, the attorney may retain an expert to review the records to decide whether your claim should be pursued. Your nursing home abuse attorney will pay for the medical records and the expert review, and you will not be required to pay any upfront costs or fees. This initial, investigatory period usually takes one month to four months to complete. Of course, the length of time depends on the individual issues of the case and the amount of medical records needed to review. It is important to remember that your suit must be filed within the statute of limitations period, so this time extensive process needs to be initiated as soon as possible. Your role in this investigative process falls in ensuring that we have the most up to date and current contact information so that in the event that we need to discuss an aspect of your case with you, you can be readily available.
Once your nursing home abuse attorney determines that your case has merit, they will send a Notice of Intent to Initiate Litigation to the at-fault nursing home, and any other prospective defendants, pursuant to section 400.0233, Florida Statues. The Notice of Intent begins the mandatory pre suit period and must be done before actually filing the lawsuit. Once the notice is mailed to a prospective defendant, no suit may be filed for a period of 75 days.
During this period, the defendants will conduct an evaluation of the claim. At this time, you may be asked to give an unsworn statement to the prospective defendant’s attorney about the events surrounding your case. This statement is only used for evaluation purposes and cannot be used against you if litigation goes forward. Your attorney will prepare you for this testimony and will accompany you while you testify, which usually takes place at the attorney’s offices.
Additionally, you will attend a pre-suit mediation within 30 days after the claimant’s receipt of the defendant’s response to the claim. This mediation gives the nursing home a chance to make an offer to settle the case and forgo litigation. At the end of the 75 day pre-suit period, the prospective defendant will either 1) reject the claim or 2) make a settlement offer. If the nursing home rejects the claim, refuses to settle, or you reject the nursing home’s offer to settle, the case will proceed to the litigation stage.
It is ultimately your decision on whether to file suit, if the Trial Team is of the opinion that the case should go to litigation. Your nursing home abuse attorney will discuss with you the potential benefits and risks associated with proceeding to trial. Once suit is filed, it can take several years or more to obtain a trial date. During that time, you will be required to participate in the litigation process and make yourself available for the related discovery process, including depositions, compulsory medical examinations and live testimony at trial. Obviously, no one can assure you of what a jury might decide when the jury is presented with having to make a decision that involves addressing the issues in your case. The jury’s decision can substantially impact whether or not you may realize any net recovery after payment of all the fees, costs, provider balances and liens, as well as determining whether the defendants might have a right to pursue you to recover some portion of their fees and expenses.
If both you and your attorney agree that your case should be transferred to the litigation team, you will be assigned a trial attorney and trial client manager. This team will then begin preparing your formal complaint and associated court documents. Once the complaint has been filed, there are certain court-imposed timeframes associated with your case. Your trial attorney will discuss this timeline with you and keep you informed of the litigation process.
A complaint will be drafted and filed with the Clerk of Court. We will then attempt to have the complaint served upon the defendant(s). The defendant(s) will have twenty (20) days after service to respond to the complaint. Commonly, at that time, you will be asked by the defendant(s) to respond to written interrogatories (questions), requests to produce certain documents and records, and possibly attend a medical evaluation by a doctor of the defendant(s)’ attorney’s choice. Thereafter, your deposition may be taken by the defense attorney. We may also take depositions and other discovery from the opposing side. After your deposition, a mediation conference may be scheduled in an effort to resolve your case before proceeding to trial. Mediation is a procedure where an independent person meets with all parties and attempts to get the parties to settle the case.
Please evaluate the pros and cons of taking a suit to trial while considering settlement offers. Your case cannot be successful without your assistance, so you must be an active participant, which will require you to participate when requested. Aside from being costly, risky and time consuming, litigation is also stressful. This is especially important to consider if you or your loved one are elderly.
Litigation will require a substantial increase in the amount of attorneys’ time and costs needed to litigate your case in court. Consequently, pursuant to the Authority to Represent and Contingency Fee Agreement that you signed, our attorneys’ fees will increase to 40% of any and all recoveries that occur after a lawsuit is commenced on your behalf. This fee calculation is computed before costs are subtracted from the total amount recovered.
While you may be entitled to proceed with litigation and have your day in court, we must advise you that can be a very expensive day. Even if we convince a judge there is sufficient evidence you sustained a permanent injury to allow a jury to make the final decision on that issue, and the jury rules in your favor, you still face significant costs. Insurance companies realize this fact and recognize that there are certain fixed expenses that are incurred just to properly present your case to a judge or jury. The costs can be significant in pursuing a claim through a jury trial.
Those costs are in addition to the attorney fees which also increase from a third to forty percent. By way of an example, a physician who may have charged $100.00 or so per visit to provide you with treatment may charge $400.00 or more to meet with an attorney for fifteen or twenty minutes to discuss their thoughts regarding your injuries and further care requirement.
The same physician may then charge $2,000.00 or more to attend the deposition. In addition, some physicians charge $4,000.00 to $5,000.00 or more to take time from their practice to testify on your behalf at trial. Those kinds of costs can be multiplied by the number of physicians and experts involved in presenting your claim to the jury. The point is that the overall costs incurred to proceed with a jury trial can potentially approach or even exceed the eventual net recovery to the injured plaintiff, if any. It is not unusual for costs alone to approach the range of the defendant’s current settlement offer. Fortunately, if you prevail, the judge may award you some percentage of the costs you incurred in presenting your claim. However, just as often the judge may only award a portion of those expenses, the remainder would then be paid from the final award. Of course, if the costs exceed the award, you will not put any money in your pocket.
Once the mandatory pre-suit period is completed or waived without resolution, your nursing home abuse attorney will file the lawsuit against the nursing home, and any other prospective defendants. You may notice that there are multiple defendants listed besides the nursing home, this is so the lawsuit will reach any money that has been “hidden” by the nursing home in shell corporations, management companies and associated entities. Additionally, you may bring claims individually against negligent facility employees.
A complaint will be drafted and filed with the Clerk of Court. We will then attempt to have the complaint served upon the at-fault party(ies), which can take thirty (30) days or more depending upon the speed of the process serving company hired for the purpose of service. Once served, the at-fault party will have twenty (20) days to respond to the complaint by filing an answer.
After the answer has been filed, your nursing home abuse attorney, and the defendant’s attorney, will begin the process of discovery. This may include you (1) responding to (a) written interrogatories (questions), (b) requests to produce certain documents and records, and (c) requests to admit to certain facts and (2) give a deposition. This discovery period can last anywhere from six to eighteen months. As each case is driven by medical records that greatly vary amongst individuals, it is impossible to predict how quickly your case will progress.
During this process, the defendant may learn facts that weaken your claim or call into question your credibility based on any negative past conduct and witness testimony. The defendant may be able use this against you at trial to cause the jury to find in favor of the defendant and/or the insurance company or substantially reduce any judgment entered by the jury. The following discusses some of the discovery tools that may be used in your case.
Interrogatories are questions that you are required to provide your sworn responses to that can be used against you at trial, including for the purpose of impeaching your credibility. If interrogatories are served on you, it is important that you answer each interrogatory unless the response calls for information that is irrelevant or protected by privilege. We will help you determine what responses request irrelevant or privileged information so that we make the proper objection to them.
You should carefully read the questions and write down all the information you have including dates, witnesses, addresses, facts, and similar information that responds to each interrogatory. You should be especially specific as to responding to the injuries, treatment, and prior accidents related questions.
We understand that you may have provided some of this information to us in the past. However, it is important that you answer every question completely and to the best of your ability, whether or not you provided such to us before, so the response is comprehensive and up-to-date. Please understand that your responses are an important part of pursuing your claim. If not thorough, your responses may be used by the opposing party to indicate that you have not been totally truthful and are hiding information, which may restrict your ability to recover in your case.
Usually, the responses to interrogatories must be served on opposing counsel within thirty (30) days from the date they were served on us. To give us time to review and finalize your draft answers, you must send them to our office at least fourteen (14) days before the thirty (30) day requirement so that we have time to prepare the final copy and have you sign them.
Requests for Production require that you provide certain documents to the defendant that may help or hurt your case. If requests for production are served on you, you should respond to each request unless it asks for irrelevant or privileged documents. We will help you determine what responses request irrelevant or privileged information so that we make the proper objection to them.
Upon receipt of requests for production, you need to immediately review them carefully and write down your response next to each one, whether you have or do not have such documents. We understand that you may have provided some of this information and documentation to us in the past. However, it is important that you respond to every one of these requests to the best of your ability, whether or not you provided such to us before, so the response is complete and up-to-date.
If you have the requested documents in your possession, custody, or control, you will need to make us a copy of them and provide us with that copy. You will also need to provide us with a copy of each document requested. Please only provide us with a copy as you should always keep originals. If you do not have the documents in your possession and think you know who has possession, custody, or control of them, please write this down as well.
Usually, the responses to requests for production must be served on opposing counsel within thirty (30) days from the date they were served on us. To give us time to review and finalize your draft answers, you must send them to our office at least fourteen (14) days before the thirty (30) day requirement so that we have time to prepare the final copy and have you sign them.
Request for Admissions require you to admit or deny whether certain facts are true in your case. Any fact that you admit as true is deemed not to be in dispute in your case, and we are unable to argue that fact is not true at trial. If requests for admission are served on you, you should respond to each request unless it asks for irrelevant or privileged information. We will help you determine what responses request irrelevant or privileged information so that you make the proper objection to them. Any request that you fail to provide an answer to, will be deemed admitted and cannot be in dispute at trial.
Upon requests for admissions being served on you, you will need to immediately review the requests carefully and draft a response to each request by stating admitted or denied, or unable to respond and the reason that you are unable to respond. We understand that you may have provided some of this information to us in the past. However, it is important that you respond to every request to the best of your ability, whether or not you provided such to us before, so the response is complete and up-to-date. You must admit, deny, or state unable to respond with a legally acceptable reason for being unable to respond. Please understand that any request for admission as to a fact that is not responded to will be deemed admitted and can restrict your ability to recover in your case.
Usually, the responses to requests for admissions must be served on opposing counsel within thirty (30) days from the date they were served on us. To give us time to review and finalize your draft answers, you must send them to our office at least fourteen (14) days before the thirty (30) day requirement so that we have time to prepare the final copy and have you sign them.
A deposition is your oral testimony taken under oath by a court reporter in response to questions by other attorneys, and in some cases, by an attorney representing you. The testimony is transcribed after the deposition is concluded and is available for use by either side for summary judgment or trial. A judge or jury is not present during the deposition; only the lawyers, the witness, the court reporter, and a representative of each party usually attend. In all likelihood, the proceedings will be held in one of the attorneys’ offices or in a court reporter’s office.
If a deposition is scheduled in your case, we will provide to you the Deposition Preparation Booklet, containing information that many clients have found helpful to prepare them for their deposition. The booklet discusses many topics relating to deposition including the following: (a) purpose of a deposition, (b) what to wear, and (c) suggestions relating to your testimony. If your deposition is within several weeks and you have not yet received the Deposition Preparation Booklet, please write to us immediately and we will send you a copy for your review.
Motions are written requests to the court to make a ruling on an issue. There are many motions that can be filed with the court. A few are addressed below:
A motion for summary judgment is requesting that the judge rule on an issue as a matter of law. This motion can be made for all or any part of a claim. Prevailing on summary judgment in Florida is difficult because if there is any disputed material fact, the court may deny the motion. Accordingly, it is rare for a plaintiff in litigation to file one. On the other hand, defendants will use it as a tool to try to narrow the issues. However, in a few cases, such motion may at least be an effective way to bring a certain issue to the court’s attention, depending on how the case develops.
Usually for us to file a motion for summary judgment, we will need for you to complete an affidavit that provides the necessary facts for the motion. Please understand, if you are signing an affidavit for a motion for summary judgment in your favor, the affidavit is your sworn testimony. It is similar to giving testimony at a deposition and can be presented during your deposition and at trial. Again, you must make sure it is completely accurate and truthful. Of course, if you have any questions or comments about the necessary facts, do not hesitate to let us know. The affidavit must be accurate, complete, and meet your approval, before you consider signing it in the presence of a Notary Public.
Once you approve of the motion and affidavit, we will file it with the court and set it for hearing. Unfortunately, it may take a substantial amount of time to get a hearing time before the court. Your attendance at the hearing may not be necessary. We will advise you of the results after the motion is heard if you do not need to attend.
The defendant can also file a motion for summary judgment. If the defendant prevails and the court grants the motion, the issues addressed in the motion have been decided in the defendant’s favor. This can cause the entire claim against the defendant to be resolved in favor of the defendant. However, if the court grants the motion pertaining to only part of the claim, your case will continue so that the remaining issues will be resolved through a final judgment.
Accordingly, you need to read in detail any motion for summary judgment we send you, including any affidavits. We need for you to inform us of whether the facts provided therein are accurate and complete.
A party may file a Motion to Compel discovery and for sanctions, including attorneys’ fees and costs, when the other party does not timely respond to a discovery request. For example, the above addresses certain type of discovery and the amount of time a party is normally given to respond. Accordingly, failure of a party to respond to these types of discovery in a timely manner may result in a Motion to Compel discovery or sanctions.
Accordingly, it is important that you timely address all of your responses with us and execute them as is necessary so that we serve the responses in the time required.
Florida law has a statute that ostensibly is to help reduce the costs associated with frivolous lawsuits and defenses. The difficult aspect of this law is defining what is frivolous. The current definition is that a claim or defense may be considered frivolous when the party making the claim or defense knew, or should have known, that it was (a) not supported by the material facts necessary to establish the claim or defense; or (b) would not be supported by the application of then existing law to those material facts. In such a case, the prevailing party may file a motion for recovery of attorneys’ fees and costs pursuant to section 57.105, Florida Statutes.
However, monetary sanctions may not be awarded if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success. Further, sanctions may not be awarded against the losing party’s attorney if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts.
A party may file a motion for attorneys’ fees and costs pursuant to section 57.105, Florida Statutes against another party to a lawsuit after certain requirements are met. These requirements include that the party making the motion for sanctions under this statute served on the opposing party but did not initially file with or present to the court the motion. This party may file and serve the motion with the court twenty one (21) days after service of the motion, if the opposing party does not withdraw or appropriately correct the challenged paper, claim, defense, contention, allegation, or denial within this time period.
Upon the motion of a party, the court may award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s nursing home abuse attorney on any claim or defense at any time during a civil proceeding or action in which the court finds as provided above.
Therefore, it is very important that you provide us with all the facts concerning you and your case, whether they support or harm your case, so that we can avoid exposure to a section 57.105 motion.
After the parties have had time to perform discovery, the Court will order a formal mediation, even if you participated in the pre-suit mediation. This mediation will be much like the pre-suit mediation. Mediation is a confidential, informal conference where the parties to a dispute meet with a neutral, impartial person called a mediator, in an effort to reach a mutually acceptable agreement. A judge or jury is not present during a Mediation; only the lawyers, the parties, and the mediator. The mediator controls the Mediation, but does not have authority to make a binding decision or force the parties to accept a settlement with which they are not satisfied. The mediator helps the parties voluntarily reach a settlement of the dispute. He or she is not to be biased in favor of either party, but may bring up positive and negative issues in an attempt to have all parties understand the entire case.
If mediation is scheduled in your case, we will provide to you the Mediation Preparation Booklet that many clients have found helpful to prepare them for their deposition. The booklet discusses many topics relating to mediation including the purpose of mediation and what to wear. If your mediation is within several weeks and you have not yet received the Mediation Preparation Booklet, please write to us immediately and we will forward you a copy for your review.
The purpose of a jury trial is to review facts of your claim, including your lost wages. If a trial is scheduled in your case, we will provide to you the Trial Preparation Booklet that many clients have found to be helpful in preparing them for their trial. The booklet discusses several topics relating to trial including the typical trial process and what to wear. If your trial is within several weeks and you have not yet received the Trial Preparation Booklet, please write to us immediately and we will forward you a copy for your review.
Often, if we prevail at trial on your case, the Defendant will appeal the judgment and/or file post-judgment motions to have the judgment overturned or modified. You should also be aware that if the amount of the judgment exceeds the insurance coverage, the Defendant may be insolvent by the time a judgment is entered to pay any additional amount. Therefore, even if we obtain a judgment on your behalf, we may not be able to collect any funds from the Defendant based on the judgment.
Under the Authority to Represent and Contingency Fee Agreement you signed, our representation of you does not include the pursuing or filing of any appellate proceedings or post-judgment relief or action by us concerning your case. You and we must reach a separate written agreement before any such appeal or action will be responded to or filed by us on your behalf.
Additionally, responding to appeals and post-judgment motions takes a substantial amount of work by your nursing home abuse attorney and adds to the costs you must pay from any recovery. Accordingly, your agreement with us states that the attorneys’ fees are increased by an additional 5% of any recovery if we agree in writing to represent you in appellate proceedings or post-judgment relief.
Although this booklet will refer to nursing homes as the common abusive and negligent entity, it is important to remember that abuse and neglect can occur at a variety of facilities that care for the elderly. Abuse and neglect can occur at assisted living facilities, adult day cares, or skilled nursing facilities.
In the majority of cases, senior citizens are the victims of nursing home abuse. Seniors are a particularly vulnerable class and are often not fully advised of their rights. Residents may not even realize they are being abused by their nursing home. Under section 400.022, Florida Statutes, nursing home residents are entitled to a basic set of rights that promotes safety, privacy, and autonomy. Nursing homes are supposed to make public a statement of these resident rights. Many nursing home lawsuits result due to a violation of these rights by the nursing home or its staff. It is important that you are aware of these rights, if you are a nursing home resident or a family member, in order to take appropriate legal action and to protect yourself or your loved one. These rights include, but are not limited to:
- The right to independent personal decision.
- The right to private and uncensored communication.
- The right to participate in social, religious, and community activities.
- The right to manage his or her own financial affairs.
- The right to be adequately informed of his or her medical condition and proposed treatment.
- The right to refuse medication or treatment.
- The right to receive adequate healthcare and protective and support services.
- The right to have privacy in treatment.
If you or your loved one suspects that any of these rights, or others, were violated by the nursing home, please advise your nursing home abuse attorney so we can better pursue your case.
Under section 429.296, Florida Statutes, there is a statute of limitations for nursing home abuse lawsuits in Florida. This means that your suit must be filed within the statute of limitations period, or you will be barred from bringing a claim. The statute states that victims of nursing home abuse have a standard time window of two years to file a lawsuit. In some cases, this time period may be extended; namely in cases where there was intentional misrepresentation of fact or fraudulent concealment that prevented the victim, or their family, from discovering the abuse. In such cases, the statute of limitations is typically increased to four years, but in no case can a claim be filed more than six years after the incident occurred.
Therefore, it is important that if you suspect nursing home abuse that you consult with a nursing home abuse attorney as soon as possible to preserve your claim within the statute of limitations period. The statute of limitations will begin running at one of three scenarios: 1) When the harmful incident occurred, 2) When the victim or the victim’s representatives learned that an existing injury was caused by a specific incident or 3) When the victim or the victim’s family should have discovered the incident with due diligence. Do recall, nursing home claims require the potentially lengthy pre-suit period before you can file a lawsuit, therefore it is important to begin your pursuing your case as soon as possible.
Typically, there are three types of nursing home abuse claims. The first, when the victim is still living, is a claim for injuries. The second, when the victim is deceased but ultimately died from other causes, is a survival claim. The final, when the victim’s family or estate brings suit due to the wrongful death of the victim, is a wrongful death claim.
If you or your loved one has shown signs of injuries due to potential nursing home abuse or neglect, the most important thing is to remove the resident from the facility as soon as possible. Make sure you or your loved one are safe and receiving proper care. If you are capable, you may bring action on your own behalf. If you are seeking help for your loved one, a guardian who is in charge of making legal decisions on behalf of the elder can pursue a claim.
If your loved one was injured due to nursing home abuse, but later died of unrelated causes, you may be eligible to bring a survival claim. This claim survives the victim’s death. It does not claim that the victim died due to the nursing home abuse, but that she suffered an injury from this abuse and died, due to unrelated causes, before she was able to pursue a claim. You cannot claim wrongful death damages, however you can claim survival damages from the time the victim was injured by the nursing home abuse until the time of her death.
If your loved one was in a nursing home at the time of their death, and you suspect that nursing home abuse caused the death of your loved one, you may bring a wrongful death claim on behalf of the family.
In order to pursue a lawsuit, the plaintiff must establish that (1) the defendant owed a duty to the resident, (2) the defendant breached the duty to the resident (3) the breach of the duty is a legal cause of loss, injury, death or damage to the resident; and (4) the resident sustained loss, injury, death or damage as a result of the breach.
In order to determine whether the survivors can make a claim for wrongful death, your nursing home abuse attorney will investigate the decedent’s death certificate, which might indicate that the victim did not die a natural death. Additionally, your attorney may hire a medical expert to examine the case and offer their opinion on the causation of death which may be more accurate and complete than just relying on the death certificate. The abuse or neglect caused by the nursing home does not have to be the sole cause of death; however, it has to be a substantial, contributing cause.
In survival claims and wrongful death claims, the surviving spouse, minor children, adult children (if there is no surviving spouse) and the parents of the decedent (if they are still alive and there are no other qualified survivors) are eligible to receive compensation for these types of claims. Additionally, the decedent’s estate may make a claim.
The injuries resulting from nursing home abuse and neglect create significant economic impact on the elderly and their loved ones. These costs include, but are not limited to, medical bills, lost wages, and lost future earnings. Additionally, you or the surviving family members may bring claims against the nursing home for further damages. Your lawsuit will seek to recover these costs in the form of damages.
Florida law allows medical bills to be claimed as damages, even if they were paid by a third party such as an insurance company, Medicare or Medicaid. These expenses may not be the largest damages sought in a nursing home abuse lawsuit, but they provide a baseline to calculate more intangible damages, such as pain and suffering. Often, damages for pain and suffering amount to three times the amount of the medical bills.
A victim of nursing home abuse or neglect can make a claim for lost wages or lost future earnings. While the majority of nursing home residents are retired, many people enter nursing homes and assisted living facilities for rehabilitative services. For example, a person recovering from surgery may enter an assisted living facility for a short term period with the intention of returning to their job when they have healed. However, while at the facility they were injured due to the facility’s abuse or neglect and now they cannot return to work. This victim would have a claim for their lost wages, as well as lost future earnings if they are no longer able to work due to these injuries.
Lost wages are the potential earnings that the injured or deceased party would have made if they were not injured by the nursing home. These lost wages would be based on the missed wages in the past and missed earnings proved by 1099’s, W-2’s and tax returns. If you are no longer able to work due to injuries suffered as a result of the nursing home’s abuse, then you can pursue a claim for lost future earnings.
Wrongful death damages can be claimed by the surviving family members or by the estate.
Surviving family can claim the following:
- Mental Pain and Suffering (for the loss of their spouse or parent)
- Lost Companionship, Instruction, and Guidance
- Medical or Funeral Expenses (If Paid By a Survivor)
- Lost Support and Services
- Loss of Decedent’s Protection and Guardianship
The estate may recover damages for:
- Loss of Net Accumulations
- Decedent’s Lost Earnings
- Decedent’s Medical and Funeral Expenses
PAIN AND SUFFERING
A victim can make a claim for pain and suffering. Quantifying the amount of pain and suffering damages is difficult, as there is no standard or guideline. Instead, the jury will, based on the evidence, determine the appropriate amount of damages for pain and suffering. Your nursing home abuse attorney may suggest a baseline for the jury to consider, such as valuing the amount of pain and suffering damages as four times the amount of the medical bills. However, the jury does not have to follow this baseline, therefore it is impossible to accurately estimate what a jury may award. There is no cap and, depending on the facts of your case, this amount of damages can vary greatly.
Additionally, surviving family members can make a claim for their own pain and suffering caused by the death of their loved one. Pain and suffering is the largest set of damages claimed by the surviving family members. Pain and suffering are intangible, meaning there are no guidelines to how much you are awarded for this claim and every case is different. Instead, if your case goes to trial, the jury will, based on the evidence, evaluate the damages you suffered as a result of your loss. There is no cap on pain and suffering damages, thus this amount can be very high depending on the decedent’s age and the type of relationship the survivors had with the decedent.
Damages can be claimed if the victim is left disabled as a result of the nursing home abuse. For example, if a victim suffers a fall and can no longer walk, they are disabled. A claim for damages can be made for this resulting physical disability.
Damages can be claimed if the victim is left disfigured as a result of the nursing home abuse. For example, if a victim suffers from pressure ulcers, the victim will likely be disfigured in the affected areas. A claim for damages can be made for this resulting disfigurement.
A jury can compare the quality of life a victim enjoyed prior to their injury compared to their current quality of life. If the jury finds the victim’s quality of life diminished, they can award damages. To demonstrate this, you should provide the name of witnesses that knew you well both before and after the incident. These “before and after” witnesses will testify how the victim’s life changed for the worst after the incident. An example of a “before and after” witness could be a close friend, family member, or coworker.
In many cases, the victim is not just abused physically. Often, distress, anxiety and fright are connected to the physical injury, especially given the nursing home’s apparent authority over the resident. For example, a caretaker might have been intentionally abusive towards the victim. This would cause significant mental anguish for the victim and the jury can award damages based on this claim and should be taken with the same amount of severity as a physical disfigurement or disability.
Net accumulations are determined by the jury and evaluate how much the decedent would have left to his estate if they had not died due to nursing home abuse or neglect. Net accumulations are evaluated based on the monthly income of the decedent (from work, pension or social security benefits) and their life expectancy. Then the jury subtracts from this amount what the decedent would have likely paid on personal and support expenses for the rest of their life. That determines approximately what the defendant would have left to their estate if they had not prematurely died due to the abuse or neglect of the nursing home.
Punitive damages are used to punish defendants for their behavior if it is intentional or grossly negligent. These damages are designed to hold the defendant corporations responsible for their bad behavior and hopefully will prevent the nursing home from abusing future residents and to remember that their victims are people who are far more important than their profits.
Punitive damages are rarely awarded in nursing home abuse cases; however, they may be available to you in order to send a message to the defendants that you cannot abuse the elderly. However, the threshold for punitive damages is higher than other damages. You must demonstrate that the nursing home’s conduct was intentional, reckless or grossly negligent, which is a higher standard than mere negligence.
Your nursing home abuse attorney will pursue a punitive damages claim by going before the Court and making a reasonable showing, through supporting evidence and testimony. Please be aware that, depending on the facts of your case and the jury’s findings, there may be a cap on punitive damages and a limit to what you may receive.
During the pre-litigation and the litigation stage, your nursing home abuse attorney likely made a Proposal for Settlement in an attempt to settle your case and avoid trial. If the jury verdict beat the Proposal for Settlement that you offered, and the nursing home rejected, then you may be entitled to recover attorneys’ fees. In order to beat the Proposal for Settlement, your jury verdict must be at least 25% more than the Proposal for Settlement. For example, if your nursing home abuse attorney filed a Proposal for Settlement of $100,000 and the nursing home rejected it, and your later jury verdict returned $125,001, you have beat the Proposal for Settlement. Thus, the nursing home may be responsible for paying your attorneys’ fees.
Additionally, if you prevail at trial, you may be entitled to recover court costs from the losing party. These costs include, but are not limited to, court filing fees, court report costs and medical record bills. If you win, your nursing home abuse attorney will attend a hearing to enter judgment against the nursing home and the court costs will be levied against the nursing home.
STOPPING NURSING HOME ABUSE
The elderly are a particularly vulnerable class of people and deserve special attention and care. Especially in Florida, where seniors make up a significant portion of the population, elder abuse is prolific and needs to be stopped. Public attention needs to be brought to cases of nursing home abuse in order to demonstrate the horrific treatment of seniors and to alert other nursing homes that they will also be subject to costly lawsuits if they don’t respect and properly care for the elderly.
It is important that you do your part in helping to save other victims like yourself or your loved one. Please report any suspected nursing home abuse to the Florida Abuse Hotline, provided by the Florida Department of Elder Affairs. First, if a resident is still in the care of the abusive nursing home, they are in immediate danger and steps need to be taken to remove the resident from the home. The Florida Abuse Hotline can help you secure the resident’s safety.
Second, calling the hotline will provide a record of the nursing home’s abuse that the Florida Department of Elder Affairs, in conjunction with Adult Protective Services, the Aging Network, and the Department of Children and Families, can use to ensure that there are not further victims of this nursing home’s abuse. Although you or your family member have already been injured, you can help protect other vulnerable seniors.
Of course, without your help we cannot properly prepare and present the case to the at-fault party and insurance company. Accordingly, please allow us to again remind you of the following relating to your case:
PLEASE REMEMBER: It is very important that you do not discuss any part of your case with anyone except a member of our firm. This includes not discussing the case on Facebook, Google+, LinkedIn, YouTube, Twitter, MySpace, Instagram, any blog, any chat room, or any other similar social media website/application. Information and pictures posted on these websites may be discovered by the opposing party in your case and used against you. Marking these pages as private may not protect you from the information and pictures being used against you. Please advise us of any Facebook or other social media account you may have. Further, we strongly encourage you to archive your Facebook or any other social media account and stop using it during the entire time your case is pending. However, you should not destroy or delete your social media website/application or destroy any information or pictures that are currently on it. Any such destruction may be considered spoliation of evidence, which may cause the court to enter sanctions against you. You can consider reopening your website/social media account/application after your case is completed.
We recommend that you keep a diary of all of your medical treatment including what the doctor may tell you or what tests may be ordered. Additionally, it is also essential to write down how this incident has affected your life such as your ability to continue to do your work, daily activities, chores around your home, leisure or recreational activities, and/or caring for your children or other family members. Write down and tell us about what you used to do for fun by yourself or with family and friends that you are no longer able to do, or because of your injuries, is simply no longer fun to do. Do to the fact that we have asked you to keep this diary, it will be protected by the attorney/client privilege. Accordingly, we request that you write at the top of each page of the diary the following: “PROTECTED BY ATTORNEY/CLIENT PRIVILEGE”.
Please send us a monthly update of this diary so that we can use it in informing the insurance company of how this incident has affected your life.
As discussed, the insurance company may have hired a private investigator to follow you and take video of your actions. We do not know if the insurance company will do this, but we want you to be aware that they may. You should at all times be aware that your conduct will have an effect on the case. If the investigator obtains pictures or videos that can be interpreted as you doing tasks that you say you cannot do, this will be raised by the insurance company to support its position.
Again, please also remember to immediately inform us of any new doctor that may be involved in the care and treatment. Additionally, you should let us know if there are (1) diagnoses of any new injuries, conditions, disabilities, or illnesses or (2) have a substantial change in the medical condition. We need to know of any doctor’s opinion that you think helps or harms the case so we can fully evaluate it when considering the claim. You should ask the doctors for a copy of the records relating to the treatment or diagnoses, and send us a copy. Additionally, you should immediately inform us of any additional information and documentation that you may obtain whether it supports or does not support your claim. The opposing party will most likely discover it and we should be prepared to address all issues. This information and documentation is important in yours and our efforts to be successful in the case.
For your convenience and information, we encourage you to go to our website at www.JohnBales.com. As mentioned above, a biography of our firm and lawyers is enclosed for your consideration. The biography specifies many of the areas of law we practice and information about our nursing home abuse attorneys. We have also attached to your folder a magnetized business card that you may place on your refrigerator for quick reference. The magnet has our toll free telephone number and website address. Please let us know if you would like additional magnets for family or friends.
Additionally, we have developed for your use the John Bales Attorneys Accident & Injury Toolkit app that is available on iPhones and Android phones. You can download the iPhone app in the “App Store” and the Android app in “Google Play.” The app includes a quick reference to our phone number and 911; a map locator of the nearest hospital to your current location; an accident tips checklist; a check list for capturing information about an accident; a case consulting section; an expense log; a flashlight on your phone; and a place to store a photo of your insurance card.
Of course, we encourage you to advise others of this app and hope that it will be helpful in the unfortunate circumstances when someone is hurt in an accident.
Again, please allow me to emphasize that we want all of your questions to be answered. Accordingly, we encourage you to always contact us if you want to discuss any aspect of your claim.