Episode Transcript
Welcome to Not Another TV Lawyer. I'm Chris Shakib. I'm Jessica Hall. And this is a podcast sponsored by the law firm Terrell Hogan that's been in Jacksonville for greater than 50 years. And we are very passionate about helping people and personalizing our service to help them get the service they deserve.
I'm Chris Shaqib and I'm an attorney with the law firm Terrell Hogan. And with me is Jessica Hall, paralegal at Terrell Hogan. And we're here for another episode of the podcast, Not Another TV Lawyer. Uh, the topic of discussion today is litigation in auto accidents.
Uh, and litigation is what happens when pre suit demands are unsuccessful. Uh, and the case actually has to go into court. litigation. Um, so I have been handling auto accidents, you know, consistently since 1996. And so I'd say it's probably been thousands of them. Fortunately for the clients, auto accidents have the ability to resolve pre suit better than other types of cases, like medical malpractice, trip and falls, products liability claims, things like that.
They don't settle as easily as auto accidents. I'm not saying that auto accidents settle easily, but they have a higher probability. But, you know, lo and behold, there are times when even for a strong case, uh, if the damages are high enough, say, for instance, a trucking case where there's a commercial policy that, and the damages are catastrophic, uh, it's not likely to settle.
You know, if someone has been killed. And there's a high enough insurance policy to where they're going to try to limit how much they have to pay. Uh, then it's, it's likely to end up in, in litigation and litigation is something that, uh, You know, that, that's what I, that is the thing that I do for my clients.
Uh, but there are things that we have to talk about. Uh, and things we have to know and things we have to do. The starting point, to me, for any, when you've had an auto accident, is The statute of limitations, you know, um, for years, the statute of limitations for auto accidents, uh, in the state of Florida was four years, which meant that if someone was in an auto accident and they wanted to file a lawsuit, they had to file their lawsuit within four years of the date of the accident.
And if they didn't file their lawsuit within four years of the accident, That was the end of the case. You lost the right to do that. It's what we call a statute of limitations. In Florida, uh, in 2023, the legislature changed that. And it was the first time they changed that statute of limitations in, I don't, I know it had been at least 60, 70 years.
Uh, they changed it from four years to two years. And so suddenly, If you have an auto accident, and you're not, if you don't resolve your case pre suit, then The lawsuit has to be filed within two years of the date of the accident. And if it's not, the, there is no claim anymore. The person, the client, uh, the injured person loses the right to make that claim.
Now, when we were talking about pre suit demands, uh, you and I, uh, Jessica talked about the fact that we have a case management system called CLIO. Mm hmm. Do you, uh, Clio is, that's something we use especially for statute of limitations. Could you talk about how we do that? So, when you speak to a person and they become a client, you give me the statute of limitations for this particular case, I put it in Clio, and then, which is not sponsored, we just love this software, and we, so, it'll put in whatever this, I'll calendar the statute of limitations, and then we do, or what I specifically do, is I will do 30, 60, 90, 120 day reminders, so that, that gives us time to do something, or to follow up on something, or get something done, um, and then I do two week reminders, so I do two week, 30 days, 60 days, 90 days, and 120 days reminders, and so the case management software will automatically email you and I Every 30, every one of those time, time deadlines.
So that we can be like, oh, we need to do something with that, or we need to file suit, or what are we doing, or, so that's where that comes into play. But the starting point for having that, we can have the greatest system in the world, but it starts with knowing what the statute of limitations is. Right.
When I talk to clients, um, you know, the, whatever I'll do, I'll, I'll draft a memo about the conversation that I had with the client, whether it's in person or over the phone or by Zoom, uh, but the, the, the most, the first and foremost thing that we need to know is the date of the accident and the date of the statute of limitations so that we can use the system to give us those warnings.
Because again, in Florida now, any accident, Uh, that it, you know, that, that occurs if a lawsuit is not, if the case isn't settled with the insurance company, uh, or if a lawsuit is not filed within two years of the date of that accident, that crash, that's the end of it. There's nothing left to do. There is no claim.
And that's the thing that, you know, statute of limitations running or that that's the nightmare that, you know. A lot of people have the nightmare about when they suddenly are in class. In school, and they, I didn't know we had a test today. I didn't study for the test then. I have that dream, but as a lawyer, uh, the bad dream I have is, oh, we forgot about this statute of limitations in a case.
These are the things that keep me awake at night. So, aside from the reminders that we have from CLEO, we also have case review meetings make sure that we're not missing Anything so I think that helps as well.
Yeah, I mean that because You can have all the best, uh, things going on. Great relationships with treaters. Uh, you can have a case management system that's good. But if you, if we miss the statute of limitations, there's nothing left, other than to call our legal malpractice insurance, uh, company and put them on notice that There's gonna be a claim.
that we would be sued. Mm hmm. Um, but, so, you know, that's That's the starting point, but, but obviously that's, that's just a minimum. I mean, that, to not committing malpractice, uh, is not the same thing as being good at litigating auto accidents. The, the second thing that I've seen, uh, in my career handling cases like this is that, um, the, if the client's.
Don't stay on top of the treatment recommendations from their doctors who they're going to it makes it difficult Especially if there's gaps in treatment the gaps in treatment You know a lot of times gaps in treatment where they're going to treatment and then for whatever reason the the client It stops going and, you know, there's no records, the records don't reflect any further treatment.
It's not that the client didn't need the treatment, but for whatever reason the client wasn't doing that. That, a lot of times, can be what ends up with the case not settling pre suit and a lawsuit having to be filed. And it's very hard to get around that impression that the lawsuits not, that the case is not serious because there's this big gap in treatment.
Now, we, when we were talking about pre suit demands, We talked about how you stay on top of the clients, uh, to make sure that they continue to do what their doctors are telling them they need to do. Um, and, uh, you said that Cledo, or our case management, system is one of the ways you stay on top of that.
But again, in talking about the pre suit demands, staying in touch with our clients and constant communication, uh, that's that's the, I think that's how we avoid the gaps in treatment, or we try. We try, that's how we, like, cause ultimately it is up to the client and all that we can do is Provide them with advice and recommendations about, hey, this is what's going to happen if this isn't done and if you're still in pain and you still need the treatment, you still need, you need to contact your doctor and you need to follow their recommendations and, um, this having a great relationship with the providers comes in handy on that aspect too, because a lot of the providers that our clients have, especially people that we, that we, um, are familiar with, they will contact me and say, hey, Joe Smith hasn't been back in my office in like two months.
What's going on with Joe? And I'll be like, okay, let me, you know, let me figure this out and call the client again and see what's happening. And it may be something as simple as some sort of life circumstances happened and, and something has impeded their way to go to the doctor. Or they may be like, Oh, I'm still in pain and everything is happening.
And I still hurt. And I'm like, okay, well, you need to go back to your doctor and follow back up with that. And I mean, so it may just be something as simple as like, Oh, you know, they have a lot going on in their life. But. If the, so that's, we're having a good relationship with the providers helps as well because the providers will be like, Hey, I haven't, I haven't seen them in like 30 days.
Okay. Let me, and then if it's before my 30 day follow up, I'll still call the client and be like, Hey, you know, what's going on? What's going on? Where's your treatment? And it may be something as simple as, Oh, I've had a sick family member. I've been sick myself. Something has happened. Okay, well, as soon as you feel better, you need to get back into your doctor.
So that's how we handle that. It used to be that when we had a four year statute of limitations in Florida, if someone had a really significant injury, uh, they were paralyzed, uh, or if, um, you know, they were going to need some type of surgery, we would Wait until the surgery was done, uh, you know, and sometimes that can take a while to get arranged or, if you're talking about a neurosurgeon.
The neurosurgeon will send the patient to pain management first to, to see whether, you know, they, they want surgery, like if it's a spinal surgery that, that they want to make sure that, that they've tried everything before they recommend the surgery. It's kind of a last resort. Mm hmm. And you, you, you know that, uh.
I do. From personal experience. I do. Um, I, I, you're actually about to go have another surgery. Yes. And you're, you know, that, the date you were injured was several years ago. Was, yes. Obviously more than two years ago. Yes. And so, uh, if your case had been a more recent case, uh, It would have, the statute would have been problematic.
You wouldn't have, I mean, there, so the, the, with surgical cases, we don't have the benefit of letting the case develop pre, pre suit. Uh, we, we, We have to file the lawsuit no matter how complicated the treatment is, and the treatment can still be ongoing, but we, we have to file these lawsuits, um, to stay on top of it.
And so, the, we filed the lawsuit, uh, and, you know, that, that keeps us. from having the client lose their right to make a claim. Uh, but once the lawsuit's filed, then a whole new set of things comes up. Uh, and the starting point is what we call discovery. discovery is, um, how the Parties and litigation find out about the case we find out what about, you know, the things we want to know about the defendant driver and the defendant's car and the defendant's insurance company or if it's a trucking company, the trucking company, uh, or all the different things that could come into that.
But there are ways that we do that. Um, but yeah. What I have found as being really important, uh, is, is that when we file our lawsuit, the complaint to initiate the lawsuit, we want to include our discovery, our written questions, what we call interrogatories. We want those to be included with the lawsuit when it's served on the defendant.
Uh, our requests for production, our requests for documents or data, uh, things that they have to produce, uh, under the rules of Civil procedure, if we make these requests, they have a certain amount of time to provide us answers to the questions and interrogatories, responses to the request for documents or data.
If it's a, what we call a request for admissions, they have to admit or deny certain factual things. Uh, and, and those types of things, if we can put it with the lawsuit, we have a, a little bit of an advantage over the defense because as soon as it's served, At least under the Florida Rules of Civil Procedure.
The clock starts ticking. And they have 45 days to provide us responses to those interrogatories, the written questions, or the request for documents or data. Uh, and that, that makes a huge difference, I think, in staying ahead of things. Mm hmm. Um, and, uh, and so that that's one of the things that's important, uh, to me is that when we file lawsuits, you know, obviously we, we never miss a statute of limitations, but then we don't just file a lawsuit.
We file a lawsuit with all the discoveries. So that's baked into the cake at the moment it's filed. There's already going to be obligations from the defense. Um, how do you do that? I know, I say we do this. You're the one who does the actual work of drafting those. Uh, how do you get those out so quickly?
Um, well, I have a master set, and then when it's time to do a complaint with Discovery, such as interrogatories and requests for production, And request for admission. Then I modify my master set to fit our case at hand. And then proof it, make sure nothing's missing. And then we get everything submitted after we file our complaint.
Or when we, maybe at the same time that we file our complaint. Sometimes it may be like a day or two after. But as soon as our complaint is filed, we upload our discovery. Once the clerk has signed the summons so that we can get people served, I immediately get a process server, get it out for service. I set reminders for all of these things because Even though we have protected the statute of limitations, we now have a certain time frame to get the defendant served, so we have to stay on top of that as well.
And, and people may not know what served means. It, it seems silly in this day and age that we have a system that is a little bit archaic. Mm hmm. You can't just send an email saying you're being sued. Right. You, service means there is somebody designated by the state of Florida as a process server or a member of law enforcement like a sheriff's department that will take the documents and the summons.
A physical copy. A physical copy. They take a physical copy. They go to the person or the business's location and they hand them our lawsuit and say, Here. Here in the summons says that they, by, by law, the summons says they have 20 days to provide a response to the complaint and So they physically hand it to someone and then they give us something that's called a return of service that shows that whoever Company or person was served, the date and time they were served, and a description of the individual who was served.
They get that back to me. Sometimes they file it with the court themselves. Most of the time I have to file it. I file it with the court so that everybody knows, Hey, this person has received a copy of this lawsuit. The clock is ticking. Tick tock. And provide notice to everybody that everybody has received these documents and received a copy of this lawsuit and y'all need to get busy.
And, you know, it, it's this kind of archaic process where you actually have to use physical paper and, but it's, if we don't do that, if we file the lawsuit, the complaint starting the lawsuit, Um, but we don't serve it on the people we're suing. Then it doesn't go anywhere. It doesn't go anywhere, and if a certain amount of time goes by, and the defense figures it out, they can move to dismiss the case.
And it's dismissed, and if the statute of limitations has run. It can't be refiled, so that, so this archaic service of process, uh, requirement, as silly as it may sound nowadays with all the digital things that we do, we have to do that, uh, But then there's also discovery. We were talking about the interrogatories.
We, we try to do that at the same, so we're doing all of these things. There's a lot of moving parts when, when a lawsuit is filed. We're drafting the complaint. Uh, we're The summons, the, the summons to serve, to have the people served. And then, uh, you know, I'm, we, we want the discovery. And the discovery, the interrogatories in particular, the written questions.
Uh, Florida has standards. interrogatories for auto accidents, and they actually, the rules say we're required to use them to the extent that they're applicable. And, you know, when I first started doing auto accidents, I would kind of ignore, I wouldn't use those all the time, and over the years I've learned that It makes life easier if you use the standard format.
There, there's a whole lot of knowledge that goes into what those standard interrogatories are. There are committees of lawyers that have been practicing for years that came up with those standard interrogatories. So, I I will almost always use the standard interrogatories in an auto case, but I, you know, I, if there's something specific, we'll, you or I will try to add something additional.
There's a limit to how many interrogatories we can request, send them, 30, uh, in, in state court, uh, 25 in federal court. But, um, you know, these are the things that we try to do upfront. What about discovery from the defense? We file suit and The next thing that, that can happen, you know, we've done our interrogatories request for production.
Well, they file their answer, and what's the next thing that we always see? Uh, they send us their own sets of discovery that are also time sensitive and require responses from our clients and documents and various data. And, and that's one of the, those things that clients don't fully understand how important that that is.
And it's not the kind of thing that, you know, your lawyer can just do, or his, he or her staff can do on their own. Um, these written questions will get interrogatories, written questions from the defense wanting to find out a lot of information. There are standard interrogatories that the defense can send.
Um, And the, what kinds of things are they asking? Um, they will ask for 10 years of medical history. They will ask for any health insurance that you may have had in the past 10 years. They will ask for your last 10 years of addresses, which I personally, personally find to be difficult because I was a military spouse for a long time and it's hard to remember all of those addresses.
But, um, I think that's one of the most difficult questions is the 10 years of address history, the 10 years of medical history. Um, sometimes some of the questions I've seen will be like, who's been your pharmacist for the past 10 years? That can be a difficult question too if they've moved and had different pharmacies.
And these, I mean, these are not questions that we can answer without their help. We have a lot of questions on the interrogatories that require more interaction with our clients and more detailed interaction. Right. I mean, answering interrogatories, uh, can be difficult and it's not something that the law office can do independent of the client.
It takes a lot of input and back and forth. And one of the questions that asks will be asked if you've ever had been, if you've ever been charged with a crime. And this is where things get a little hazy with things sometimes because people may be ashamed of something that happened in their past. But this is not the time to lie to your attorney.
We don't like surprises. This is, like, if you've been in trouble. It's best to tell me because I'm gonna find out and, like, if we know about it up front. We can know how to proceed moving forward, but we I don't like surprises and that element like if I ask somebody these questions They're like, oh, no, I've never been arrested and then I like find out they have 12 court pages later.
I have questions Well interrogatories You know, they're not just Um, there's something important about them, uh, which is they have to be under oath. They're truthful. You have to be telling the truth. You know, they, more often they're notarized. There's a, a notarization stamp out. Some people will use the declaration, which is, it doesn't require a notary.
But both are, when the client signs the interrogatories, the client is saying, These are true to the best of my knowledge and belief. Under penalty of perjury. Right. And so, uh, It's really important that, that we as this, you know, the attorney, the paralegal, that our staff spend time with the clients about those answers to make sure they're accurate.
Because if something is false or, or incorrect, it will come up at trial. Or deposition. Yeah, they can bring it up in deposition, but, or even worse, they can sandbag you and spring it on you in trial. Right. and it's devastating. Um, Mr. Smith, you said you've never been charged with a crime, but here, lo and behold, there's, you've been convicted of three felonies.
Murder, and, or Well, they, yeah. They won't, they can't say what the crime is. They can ask if, if, if it's a. Whether you've been convicted of a felony, and how many times, or a crime involving dishonesty, and how many times. At one point in my career, when I was a paralegal in another state, I had a discovery meeting with a client.
And I said, Ms. Such and Such, have you ever been arrested? Oh, no, honey. No, I've never been arrested. And then come to find out, unfortunately, she did prison time for murder. And was like, I don't like surprises in this context. Well, and they're devastating. Right. Any time, you know, the client says something affirmatively in response to an interrogatory, which is under oath, uh, and it, it's false, um, Credibility comes into play.
Well, it, it just, it looks terrible because juries, For cases that go to trial, juries, regular people, who, six people in the state of Florida, are the ones who are going to decide the case, not a judge. The judge decides the law, but the facts of the case are decided by the jury. And across the board, it doesn't matter what your political leanings are, whether you're conservative or liberal or the one thing jurors, will not excuse is what they perceive to be a lie.
Absolutely. And, and so that is the most damaging thing that can, that can ever happen. So, interrogatories will ask about prior injuries. Mm hmm. And if that's not accurate Uh, and they can point that out. It, it, it's devastating in front of a jury. I've had cases, um, where the client was not forthcoming with me.
And, you know, had an injury, and I'm thinking about a knee injury in particular. A work related knee injury, and then there was this auto accident where there was a significant knee injury. But the defense, Uh, you know, I had interrogatories asking about prior knee injuries, and the client said, no, no priors.
And then, uh, there was a deposition, you know, saying, No, no prior knee injuries. And then the defense found records to support a prior knee injury. They filed a motion for what's called involuntary dismissal. And in that case, it was granted, where the whole case is thrown out because they say that the client was lying.
And that can happen. A judge has the authority to do it. And so telling the truth and being completely forthcoming is important. What I ask clients to do when they're answering interrogatories is they tell us everything and I'll look at what they've written, uh, you know, as far as their answers. And as the attorney, my job is to go through and make sure they're, they're answering them as they're required to.
Giving more information than was asked. You know, we don't, we're going to only answer the questions that are asked. Uh, doing it completely though and not playing games with that. And, and making sure it's accurate. And anything that doesn't have to be answered or, you know, I, that's my job. But I want the client when she or he is answering, providing written responses for us to go through.
I want that to be everything, and let me and you be the filter. Normally, you'll do the first draft of the answers, and then I go through it and do another draft, so that we make sure that it's, that it's correct. And clear and concise. But that, you know, whether it's true or not is something that we can't know.
I mean, we can do our own search of criminal records. Right. But ultimately, the client needs to be forthcoming. Yes. And so, uh, you know, that's One of the risks of discovery, uh, you know, and then, you know, if interrogatory responses are inaccurate, it can, it can be devastating. Um, and then, uh, so that's written discovery.
There's another part of the discovery process, which is called depositions and depositions are all right, the, the insurance company's lawyers. will have gotten your written responses, your interrogatory responses back. They'll get your, the document requests back. They'll get your medical records, your employment records, and things like that.
Uh, and then once they have that, they're going to very, fight very hard to want to, The client, the injured party's deposition first before anybody else. A deposition is a time where the opposing counsel, the lawyer for the insurance company, can have the client come live to a place, or nowadays very often this happens by Zoom, But, and so it can be the client is appearing by Zoom, the lawyers are appearing by Zoom, but there'll be a court reporter present, uh, and there'll be the opposing counsel, the lawyer for the insurance company, who is going to ask questions, and before the questions are asked, Uh, the client is, uh, sworn in to tell the truth.
They're under oath that they have to tell the truth. And so, in addition to what's in the written answers to, to questions, the interrogatories, they'll have a chance to ask more questions and, what I do when a deposition is scheduled. Uh, well, what is it I do as soon as the defense schedules a deposition of our client?
What's the first thing I tell you I need, we need to do? We need to schedule an in depth preparation session with the client, and that can be several hours. Yes, I, you know, a deposition is where they can ask you questions, and it's different from trial. But it's very important and a lot of times they'll video the deposition.
They'll always have a court reporter doing a transcript of the deposition. But for me, it's malpractice for a client to ever show up for a deposition. And not be prepared. And not have spent several hours with me. Now sometimes that's over the phone. Sometimes it's by Zoom. My preference is to do it in person.
Where I can see them and they can see me. I find that that's the best. It's not always possible. But I have learned over the years that you have to prep the client for several hours. Um, and prepping is not telling the client what to say. It's giving them an idea of what to expect and letting them know the things that they have to do.
Uh, you know, and what I always tell clients is listen to the question. Pay very close attention to the question. If you didn't hear the question, say, could you repeat the question, I didn't hear that. If you didn't understand the question, say, I didn't understand what you're saying. Could you rephrase that?
And then once you hear and understand the question, answer the question as straightforward as possible. No, don't try to beat around the bush or, uh, you know, you, you have to be direct. You have to answer the question truthfully and completely, but then. The next thing I say is only answer the question that was asked.
Do not offer anything more than that. Because it is not us, up to us to anticipate all the information that, that the defense needs to know. And they have to know what to ask and we'll answer the questions truthfully. So in summary. When a lawsuit is filed, there are many steps that take place before a trial, before a client is actually in front of a jury.
Um, there's discovery, there's deposition, there's many other things that take place along the way. So, it's a very lengthy process. It's a very expensive process. And it is important that the clients be forthcoming with us as possible so that we can help them to the best of our ability. Well, and staying in touch with us and communicating is important.
And what I try to do when we're going to file a lawsuit is tell the client You know, this, this, this could take anywhere from 8 to 10 months at, at the shortest. Mm hmm. And years at the longest. To several years. I, I have some cases, this is not normal for auto accidents, but I have some cases that have been in litigation for multiple years.
Yeah. Uh, but those tend to be more products liability or, uh. More complex litigation type cases. But, and auto accidents, you know, normally it won't take more than two to three years, although it can take a longer time depending on how severe the injuries are, if it's a wrongful death or catastrophic injuries.
But what I tell clients is that they They need to understand that this is going to be work. That they're going to have to put work into prep for depositions. They're going to have to stay on top of their treatment. They have to be honest. They have to tell us everything that's going on. They have to be aware that at some point, There may be an investigator following them around with a video camera, videoing everything that they do.
And if they're saying, oh, I can't walk on my own without a cane and they're videoed. Bungee jumping off the back of a boat or something. Or, or skipping down the road. It can be devastating to the case because it makes them look like a liar. What I tell the clients is you have to be in this This could be a long time, and patience is one of the things you have to experience in litigation, because once it's in litigation, I don't control anything.
I don't control it like I would. Ultimately, the judge controls how things go, and, uh, Clients need to stay in touch with us. We need to stay in touch with the clients. And we have to stay on top of things. Now, and if we do all of those things, and prep the client for, uh, the client's deposition, prep the client for mediation, a chance where the parties are required to get together and try to settle, you know, the chances of resolving the case short of trial are much greater.
But, uh, Not a guarantee. It's not a guarantee and then ultimately we may go to trial and trial is a whole different level of thing. I, I think that we'll save for a different podcast, uh, a discussion about trial because trial, whether it's an auto accident, medical negligence, products liability, um, the trial has similar.
Pitfalls and, uh, and problems, but that in and of itself is a whole different ball of wax beyond just being in litigation. Because the majority of cases that are filed and end up in lawsuits still will settle short of a trial. I mean, I'd say 90 something percent. 90, somewhere in the 90s percent of cases settle without a jury trial, uh, beforehand.
But litigation, you know, just to get to where it either settles at mediation or goes to trial, still takes a lot of back and forth between the client and, and the law office. And if, if that doesn't continue, if good communications don't continue, then the chances of success are not very good. So if you have a question about a lawsuit, or if you believe that you may have a case, please give our law firm a call, Terrell Hogan, 904 632 2424.
Thanks again for listening to Not Another TV Lawyer. We hope that you will tune in to the next episode. Not Another TV Lawyer is sponsored by my law firm, Terrell Hogan Law. Terrell Hogan represents people in a lot of different areas of injury type law, as well as business claims throughout the state of Florida.
We represent people in auto accidents, trip and falls, people who have been exposed to asbestos and developed conditions related to that. Victims of medical negligence, victims of defective products, including medical devices and pharmaceuticals. Please feel free to look us up at www. terrelhogan. com. We look forward to hearing and being with you soon.