THE FLORIDA LAW BLOG

Just Curious

Hello Blog Readers! 

Here's the scoop:  Charlie has been writing most of the blog posts lately and blog traffic is up which is fanatastic.

I'm curious, do you read this blog often?  Who are you? What would you like to see more of / less of on this blog?

I just returned from a lawyer conference and have lots of ideas for this blog but wanted to get some feedback before embarking. 

Please leave a comment with your thoughts and comments. Thanks!

Kathryn

 

Girl Power in Pinellas County, Florida

I attended the PACE Believing in Girls Lunch yesterday. Thank you to Shelli Askin at Sun Country Cleaners who invited me. I was blown away by what an awesome program PACE is. I was also inspired by the women and girls there and by the concept of "Girl Power" in general.

If you want to get involved with helping women and girls and/or networking with other women here in Pinellas County, here are ten links to awesome women and girls resources to help women and to connect with other women:

1. PINELLAS COUNTY PACE CENTER FOR GIRLS:  http://pacecenter.org/pinellas

2. CASA IN ST. PETERSBURG Community Action Stops Abuse:  http://www.casa-stpete.org

3. BUSINESS AND PROFESSIONAL WOMEN ST. PETERSBURG: http://www.bpwstpetepinellas.org/index.htm

4. PARC Turning Disabilities into Capabilities (not just for girls): http://www.parc-fl.org/

5. WOMEN ON A MISSION:  www.woamtec.com or contact Coni Notter at coni@IQPrintMedia.com for information about the Wendesday mid-Pinellas lunches.

6. LIB - LADIES IN BUSINESS: Contact Morgan Smith at morgancooksmith@yahoo.com for information on this monthly lunch meeting.

7. WIN - WOMEN IN NETWORKING:  http://www.wintampabay.com

8. Soroptimists International:  http://www.largosoroptimists.org/

9. Pinellas County Roller Girls!:  http://www.pinellascountyrollergirls.com/

10. My Hope Chest:  http://www.myhopechest.org/.

Go check out the links and find a way to connect with these organizations that are helping women and girls right here in Pinellas County, Florida.

Auto Accident In Florida? What to Bring to Your Free Consultation with an Attorney

 

Kathryn Fenderson Scott discusses what to bring with you to a free consultation with a personal injury attorney after an auto accident in Florida and other considerations in making the decision about hiring a lawyer.

Trying to Reach Me? Three Easy Ways for Clients to Contact Me.

It should be easy to get through to your lawyer.  But, I know that many times the number one complaint of clients of lawyers - any lawyer - is that its hard to get through to the lawyer.  This is a universal thing and we don't want it to be a problem at our firm. 

At Scott and Fenderson, we do our best to make it easy for our clients to reach the attorney.  We pride our firm on client service and we want our clients to feel like they can talk to us when they need to.  

Other than simply calling the office, here are 3 things we do to make it easier for our clients to reach us:

1.    EMAIL:  Office Gmail account:  scottandfenderson@gmail.com.   We give our clients our personal office gmail accounts so they don't get mixed up with the spam we get through AOL.  Charlie and I have been using AOL since the mid to late 90s and lately, the AOL accounts are nothing but spam.  I do look at my AOL inbox and try to scan it for real emails, but I usually delete 99% of the incoming emails and sometimes accidentally delete an email that I would have liked to have seen.  To remedy this, we give our clients our gmail accounts but don't put out gmail accounts out there for the entire world, therefore, we get much less spam and I find gmail much easier to navigate and weed out the spam so I can get to the real emails.  I rarely miss an email from a client on my gmail account and I can access it from my iphone so clients are able to contact me after hours and on weekends.  Today I put up a note on my fenderlaw@aol.comaccount which says that if you are a client or connected to me through work, please call the office for my gmail account.  Hopefully, this transition will improve the ability of clients to reach me via email.  If you are emailing us at the fenderlaw@aol.com account, chances are we missed it and its better to call or email me at the gmail account.

2.  CELL PHONE:  We give our clients our cell phone numbers so that they can reach us personally at any time.  I often do not answer my cell phone, but I can see that the client called and get back to them quickly.  Kathryn Fenderson Scott: 727-439-3694 / Charlie Scott 727-445-0439

3.  PHONE APPOINTMENTS:  To avoid playing phone tag with clients, we schedule "phone appointments" usually within 24 hours of the client's call so that there is a scheduled time for the attorney and the client to talk. 

On the flip side, here are three ways that will probably NOT result in getting through to the attorney:

1.  Facebook Message.

2. Email me at fenderlaw@aol.com.

3. Other random internet connection message.

If you are a client or would like to become a client of our firm, the best way to get through to the attorney is to call our office at 727-321-0099 and in a pinch, call our cell phones at 727-445-0439 (Charlie) or 727-439-3694 (Kathryn).  I sort of cringe to put those cell phone numbers out to the world on the blog, but if you are not yet a client of the firm, you probably wouldn't know it, so there they are. 

Ideally, the attorney would be sitting by the phone waiting for the client to call and ready to talk about their case at any time, but the reality is we aren't always available when a client calls; but we do want our clients to feel like they can talk to us whenever they need to.   We tell our clients that we are a team but they are the boss, so when the boss calls we want to take it.  We want to make our clients happy that they hired us and we want them to feel like its easy to get through to the attorney.

Ok, off to talk to another client.

Kathryn.

 

It's Tax Day - April 15 - Do you know if your Personal Injury Award is Taxable in Florida?

It’s TAX DAY! April 15^th! Do I Need to Pay Taxes on My Personal Injury Settlement in Florida??

The short answer is "No, most of the time, you do not have to pay taxes on a personal injury settlement; but double check with the person who prepares your taxes."

The long answer is: It depends.

If the settlement or recovery was just for the injuries and medical bills, then you do not have to pay income tax. But, if the settlement or recovery includes an amount for reimbursement of lost wages or ability to earn income, then the answer is probably yes on that portion of the recovery.

The purpose of tort law (personal injury law) is to make someone whole again after they are injured, most often, the remedy is monetary in the form of a lump sum settlement or a jury verdict. While I am not a tax lawyer, a principle in tax law is that money paid to make someone whole again is not considered income and therefore is not taxed. A personal injury settlement is theoretically returning the person to the place they were before the accident - and since the person can’t always be completely healed, money is awarded for non-economic damages such as pain and suffering and mental anguish as well as for reimbursement for past medical bills and payment for future medical bills. An award or settlement which compensates a personal injury victim for their medical bills and pain and suffering is not considered income since it is putting the person back to the place they would have been but for the accident.

The Internal Revenue Code (IRC)

addresses personal injury settlements and awards in IRC section 104(a)(2) which states that personal injury awards or settlements are excluded from a person’s taxable income so long as the award or settlement is for a physical injury that resulted from an accident.

IRS Bulletin 2009-42 states:

"This document contains proposed amendments to the Income Tax Regulations (26 CFR part 1) to reflect amendments made to section 104(a)(2) of the Internal Revenue Code (Code) by section 1605(a) and (b) of the Small Business Job Protection Act of 1996, Public Law 104-188, (110 Stat. 1838 (the 1996 Act)), and to delete the "tort or tort type rights" test under §1.104-1(c) of the Income Tax Regulations.

As amended, section 104(a)(2) excludes from gross income the amount of any damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness. These proposed regulations conform the regulations to these statutory amendments and clarify the changes for taxpayers and practitioners. Section 1605(a) of the 1996 Act amended section 104(a)(2) to provide expressly that punitive damages do not qualify for the income exclusion. The amendment was a response to divergent court opinions, some holding that punitive damages are received "on account of" a personal injury. See H.R. Conf. Rept. 104-737 (1996) at 301. The amendment is consistent with O’Gilvie v. United States, 519 U.S. 79 (1996), holding that punitive damages are not compensation for personal injuries and do not satisfy the "on account of" test under section 104(a)(2). Section 1605(a) also amended section 104(a)(2) to provide that the income exclusion generally is limited to amounts received on account of personal "physical" injuries or "physical" sickness. Section 1605(b) of the 1996 Act further amended section 104(a) to provide that, for purposes of section 104(a)(2), even though emotional distress is not considered a physical injury or a physical sickness, damages not in excess of the amount paid for "medical care" (described in section 213(d)(1)(A) or (B)) for emotional distress are excluded from income. The proposed regulations reflect these statutory amendments. The proposed regulations also provide that a taxpayer may exclude damages received for emotional distress "attributable" to a physical injury or physical sickness. See H.R. Conf. Rept. 104-737 (1996) at 301.

The Tort Type Rights Test

: The proposed regulations also eliminate the requirement that "personal injuries or sickness" be "based upon tort or tort type rights." That requirement in §1.104-1(c) was intended to ensure that only damages compensating for torts and similar personal injuries qualify for exclusion under section 104(a)(2). In United States v. Burke, 504 U.S. 229 (1992), the Supreme Court interpreted the tort type rights test as limiting the section 104(a)(2) exclusion to damages for personal injuries for which the full range of tort-type remedies is available. The Court held that section 104(a)(2) did not apply to an award of back pay under the pre-1991 version of Title VII of the 1964 Civil Rights Act because the damages awarded under the statute provided only a narrow remedy and thus did not compensate for a tort type injury. The Burke interpretation precluded section 104(a)(2) treatment for similar personal injuries redressed by "no-fault" statutes that do not provide traditional tort-type remedies. Many critics thought the Burke remedies test was too restrictive. Later legislative and judicial developments eliminated the need to base the section 104(a)(2) exclusion on tort and remedies concepts. First, Commissioner v. Schleier, 515 U.S. 323 (1995), interpreted the statutory "on account of" test as excluding only damages directly linked to "personal" injuries or sickness. Second, the 1996 Act restricts the exclusion to damages for "personal physical" injuries or "physical sickness." Accordingly, under the proposed regulations, damages for physical injuries may qualify for the section 104(a)(2) exclusion even though the injury giving rise to the damages is not defined as a tort under state or common law. Nor does the section 104(a)(2) exclusion depend on the scope of remedies available under state or common law. In effect, the regulations reverse the result in Burke by allowing the exclusion for damages awarded under no-fault statutes."

 

One more question: If I have a claim for future lost income or loss of earning capacity, how are the damages calculated?

This matters because it determines how much of your income is considered in calculating an appropriate settlement or in the calculation of the jury’s award. Future lost wages or income and future loss of earning capacity damages are calculated by figuring out how much you would have been able to make in the future if you hadn’t been injured in the accident. Then there are calculations to reduce that amount to present day value, usually in a trial situation, there is an economist who crunches all of these numbers and makes charts and reports. But to make those reports, the economist needs to know whether to use before (gross income) or after tax future income. Obviously the numbers will be higher if the before tax income is used.

In Florida, if you want to convince the economist, the jury, the claims adjuster, the judge - or whoever you are trying to persuade to use gross income instead of after tax income, here is a brief history on the case law in Florida dealing with this issue. For a greater explanation of these cases, please see S. Moxon’s article Untangling Taxes from Personal Injury Damages - http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/c0d731e03de9828d852574580042ae7a/82991b884d88fe7c852575c5004c3c80!OpenDocument&Highlight=0,disability ) :

1. Poirier v. Shireman, 129 So. 2d 439 (Fla. 2d DCA 1961), the court held that the trial court could instruct the jury that its award would not be taxable and it approved the following instruction: "You are instructed that any award made to plaintiff as damages in this case, if any award is made, is not subject to federal or state income taxes, and you should not consider such taxes in fixing the amount of any award made plaintiff, if any you make."

2. Stager v. Florida East Coast Railway, 163 So. 2d 15 (Fla. 3d DCA 1964), the 3^rd DCA followed Poirier by holding that it was ok to give the same instruction to use non taxed income to calculate damages.

3. Atlantic Coast Line Railroad v. Braz, 182 So. 2d 491, 495 (Fla. 3d DCA 1966), 196 So. 2d 109 (Fla. 1967), the 3^rd DCA held that it was also ok not to give the instruction and was silent on how the jury should calculate damages for lost income.

4. St. John’s River Terminal Co. v. Vaden 190 So. 2d 40 (Fla. 1st DCA 1966): the 1^st DCA held that gross income should be used to determine how much to award for lost earning capacity and said "the award of damages should be based upon the plaintiff’s gross earnings or earning capacity and should not be reduced because of any income tax saving which may result to the plaintiff because of the fact that the damages will be exempt from income tax."

5. Good Samaritan Hospital Association, Inc. v. Saylor, 495 So. 2d 782, 783 (Fla. 4th DCA 1986), the 4^th DCA followed St. John’s River Terminal Co., quoting the 1^st DCA’s opinion above with approval.

6. Leaseco, Inc. v. Bartlett, 257 So. 2d 629 (Fla. 4th DCA 1971), applied and approved St. Johns River Terminal Co.’s gross income calculation for personal injury damages and it established a principle of law that personal injury damages awarded for lost earning capacity shall be calculated on the basis of gross income rather than after-tax

income.7. Basel v. McFarland & Sons, Inc., 815 So. 2d 687 (Fla. 5th DCA 2002): The 5^th DCA skirted around the issue of pre or post tax calculation of future lost income, but ultimately didn’t say anything definitive about whether the jury’s award should be based on gross earnings or after-tax earnings.

Bottom line? It’s a little blurry, but, overall, the courts seem to say that the trial courts have discretion about whether to tell the jury to base future income on pre or post income tax earnings, but they generally hold in favor of having the jury base the injured party’s award on gross income (before taxes) which means the award would be high than post-tax future income.

What about my PIP benefits for lost wages - are they paid or post income tax?

The Florida PIP statute, F.S. §627.736 states that the lost wages benefits payable under a PIP policy include disability benefits, which cover "60% of any loss of gross income and loss of earning capacity per individual from inability to work proximately caused by injury sustained by the injured person . . . ." PIP pays 60% for wages and 80% for medical bills because the 60% payment of wages takes into account the tax savings of about 20% resulting from the fact that disability benefits are not taxable; ie an injured person would have had to pay income tax on wages if they were working and hadn’t had the accident, but since they are getting their lost wages from PIP after an accident, the amount of the payment is reduced to reflect that they didn’t have to pay taxes on the money. Sort of like 6 of one / half dozen of another - same difference. But the important take-away in the Florida Statutes? "The Florida Statutes confirm that the general rule in Florida is that damages for lost earnings and lost earning capacity are calculated on the basis of gross income." (Moxon) .

If you have been in an accident in Florida, consult with a lawyer. Most personal injury attorneys will provide a free consultation and will answer simple questions for you free of charge. If you have been awarded a personal injury settlement or verdict and you are filling out your fax forms - the award is probably not taxable - but its best to check with a personal injury attorney and an accountant on this issue.

Happy April 15^th Everyone.

 

Ask Kathryn: What is a "Dec Sheet"? & "How do I get the insurance information on the guy who hit me?"

Ask Kathryn:

 Question: "What is a "Dec Sheet" in relation to my auto accident claim in Florida?"

Answer: A "Dec Sheet" is a "Declarations Page" which is a document created by an insurance carrier to summarize the nature of the insurance policy, the names of the insurer and insured, and the type of coverage in that particular policy.

A Dec Sheet is usually one or two pages where as the actual policy is anywhere from 50-100 pages long. The policy describes in great details the agreement between the insurer and insured, it defines the terms involved in the agreement, explains the types of coverages available and the exclusions to coverage, it also explains the procedures to follow when making a claim.

Question: "How do I get the insurance information on the guy who hit me?"

If you are in an accident and wish to obtain copies of the dec sheets for both yourself and the other driver, you or your attorney may write to the insurance carriers involved to ask for copies of the "dec sheets" pursuant to Florida Statute §627.4137.

"Florida Statute § 627.4137 Disclosure of certain information required.— (1) Each insurer which does or may provide liability insurance coverage to pay all or a portion of any claim which might be made shall provide, within 30 days of the written request of the claimant, a statement, under oath, of a corporate officer or the insurer’s claims manager or superintendent setting forth the following information with regard to each known policy of insurance, including excess or umbrella insurance: (a) The name of the insurer. (b) The name of each insured. (c) The limits of the liability coverage. (d) A statement of any policy or coverage defense which such insurer reasonably believes is available to such insurer at the time of filing such statement. (e) A copy of the policy. In addition, the insured, or her or his insurance agent, upon written request of the claimant or the claimant’s attorney, shall disclose the name and coverage of each known insurer to the claimant and shall forward such request for information as required by this subsection to all affected insurers. The insurer shall then supply the information required in this subsection to the claimant within 30 days of receipt of such request. (2)

The statement required by subsection (1) shall be amended immediately upon discovery of facts calling for an amendment to such statement."

In our office, one of the first things we do, after a new auto accident client hires us, is to send what we call the "627" letter to both insurance carriers: the insurance carrier for our client and the insurance carrier for the other driver. If there more than 2 vehicles involved in the accident we often times send the 627 letters to those driver's carriers as well.

DEC SHEET REQUEST TO AT FAULT PARTY’S INSURANCE CARRIER: Our 627.4137 "Dec Sheet" request letter to the Tortfeasor/At Fault Party’s insurance carrier looks like this:

_____________________________________________________________________

{Letterhead}

{name of insurance carrier}

ATTN: Auto Liability Claims

{address of insurance carrier}

{date}

Sent by Fax: & Regular Mail

{Note: We do keep a copy of the fax receipt to show that the insurance carrier actually received our request. You may wish to send it certified mail, and in some cases we do, but it is not necessary.}

Re:

Request for Insurance Disclosure

Our Client: Name of Client

Your Insured: Name of At Fault Driver or Vehicle Owner

Date of Loss: Date of Accident

Claim Number: {claim number - If you do not have a claim number you can put the policy number here.}

Dear Insurance Claims:

You are on notice that this office is representing {name of client} concerning injuries and damages sustained as a result of an accident which occurred on {date of accident}. An accident report is enclosed if one is available to us. All contact and communication must be through this office. Pursuant to the requirements of Florida Statutes Section 627.4137 regarding disclosure of insurance information, I am requesting the required statement under oath of a corporate officer, the insurer's claims manager or superintendent setting forth the following information with regard to each known policy of insurance, including excess or umbrella insurance:

(a) The name of each insurer.

(b) The name of each insured.

(c) The limits of liability coverage.

(d) A statement of any policy or coverage defense which such insurer reasonably believes is available to such insurer at the time of filing such statement.

(e) A copy of the policy.

Under the terms of the above statute you have 30 days

to provide the above information or be liable for attorneys fees and costs required to be expended to acquire such information. If available, please also send copies of the following: Accident Report, Property Damage Estimate, Recorded Statements, Property Damage Photos. If a statement from our client has been taken, please forward a copy of the statement to our office. Please note that subsection (2) of the aforementioned statute requires you to amend the information you provide pursuant to this request immediately upon discovery of facts calling for an amendment to said statement. Please have your insured provide an affidavit stating that he/she was not in the course and scope of their employment at the time of the accident and that there is no other insurance coverage covering the insured's automobile and/or driver at the time of the accident.

Thank you for your cooperation in obtaining the above required information. If you have any questions, please feel free to contact me.

Very truly yours,

{name of attorney},

Attorney at Law

Encl. Accident Report (if available);

cc: client

____________________________________________________________________

DEC SHEET REQUEST TO OUR CLIENT’S {YOUR OWN} INSURANCE CARRIER: Our 627.4137 "Dec Sheet" request letter to our client’s insurance carrier looks like this:

-----------------------------------------------------------------------------------------------------------------

{Letterhead}

{date}

{name of insurance carrier}

Attn: PIP/UM Claims Department

{address of insurance carrier}

Sent by Fax: & Regular Mail {Note: We do keep a copy of the fax receipt to show that the insurance carrier actually received our request. You may wish to send it certified mail, and in some cases we do, but it is not necessary.}

Re:

Request for Insurance Disclosure & Copy of the UM Selection Form

Our Client: {name of client}

Your Insured: {name of insured - this is usually our client but not always}

Date of Loss: {date of accident}

Claim Number: {claim number or policy number if we don’t have the claim number yet}

Dear PIP Claims Adjuster:

You are on notice that this office is representing {name of client} for injuries received on {date of accident} in a motor vehicle collision. All contact and communication must be through this office. Pursuant to the requirements of Florida Statutes Section 627.4137 regarding disclosure of insurance information, I am requesting the required statement under oath of a corporate officer, the insurer's claims manager or superintendent setting forth the following information with regard to each known policy of insurance, including excess or umbrella insurance:

(a) The name of the insurer.

(b) The name of each insured.

(c) The limits of liability coverage.

(d) A statement of any policy or coverage defense which such insurer reasonably believes is available to such insurer at the time of filing such statement.

(e) A copy of the policy, including any Uninsured Motorist rejection / selection, if any.

 

Under the terms of the above statute you have 30 days to provide the above information or be liable for attorneys fees and costs required to be expended to acquire such information. If available, please also send copies of the following: Accident Report, Application for No Fault Benefits, Property Damage Estimate, Recorded Statements, Property Damage Photos, PIP Payment Ledger. Thank you for your cooperation in obtaining the above required information. If you have any questions, please feel free to contact me.

Very truly yours,

{Name of Attorney},

Attorney at Law

Encl.: Accident Report (if available);

cc: {client}

__________

________________________________________________________________

So remember this if you’ve been in an auto accident in Florida:

1. After the accident, you or your attorney should write to the insurance carriers to get the Dec Sheets of your auto insurance policy and that of the at fault driver.

2. The Dec Sheets will tell you what type of coverages are available.

3. The insurance carriers in Florida have to provide a dec sheet according to Florida Statute §627.4137.

Do you have more questions? Please leave a comment or send an email to me at

KathrynatScottandFenderson@gmail.com. Be sure to put "Scott & Fenderson Ask Kathryn" in the subject line of your email.

 

For more information or a free consultation on your legal issue contact Scott and Fenderson PLLC, your injury law and family law attorneys, at 727-321-0099. http://www.scottandfenderson.com

 

Kathryn Fenderson Scott on Ustream

I am starting a show on Ustream called "Fenderlaw", here's the introductory video in which I tell a little about my background and my concept for this show:
 

If you have been injured in an Auto Accident and you're on Facebook, Twitter or MySpace: WARNING - The Insurance Companies Are Watching You!

If you have been in an auto accident and have made a claim, chances are pretty good that the insurance companies and their investigators, claims adjusters, and lawyers have been looking at your profiles on Facebook, Twitter, and/or My Space; and really anywhere else you've been online.

Questions about a person's online persona have become standard during examinations under oath (EUO), depositions and other phases of the discovery process.  Not only do they ask about whether you are online, but whether you use a fake name and whether there are any photos of you online.

While my focus is personal injury (auto accidents and slip/trip and fall cases), other areas of law are subject to this kind of investigation as well: family law, criminal law, employment law, and probably every other area of law you can think up.

What you are posting can be used against you, here's how:  A personal injury victim puts pictures of themselves up (doing anything) after an accident; the defense will argue that this proves the person wasn't injured; a DUI offender has photos of his/herself at a party or bar; a family law litigant has a photo of him/herself with the "other" woman/man.  But it can be more subtle.  Posts or photos that you never imagined could/would be used against you will be.

Making your account "private" or using a false name doens't help because that information can be discovered, courts are allowing this type of online information into evidence if it is relevant to the case.  And how can you know if its relevant?  The other side has to take a peek to see if they think it is. 

So should you never be on these sites?  Hmmmm, I would say that if you weren't on them then they couldn't be used against you.  But with that said, I have a Facebook and Twitter accounts, and I happen to enjoy them.  I use this test whenever I post anything:  If I would be comfortable having a judge, jury, my mother, my husband's mother, my kids, my friends and neighbors, etc. seeing the post/picture?  Would I be comfortable having the post/picture appear in the newspaper?  Those are good questions to ask yourself before you post anything on line.

Finally, as we advise with anything: Tell the truth when you are online.  But that doesn't mean tell the whole world about every aspect of your life online.  Never post online about any pending claims, lawsuits or settlements; these are not topics for your facebook or twitter status updates!

Want to find me online?  I'm "Fenderlaw" on Twitter and "Kathryn Fenderson Scott" on Facebook.

For more information or a free consultation on your legal issue contact Scott and Fenderson PLLC, your injury law and family law attorneys, at 727-321-0099. http://www.scottandfenderson.com

The Florida Bar News: Attorney Advertising Update & Play The Game: That Attorney Can / Can't Say That In An Ad!

There's been lots of talk amongst personal injury attorneys about attorney advertising.  I think the general consensus amongst lawyers that I have spoken with is that we'd all like to see tv advertising for lawyers become a thing of the past.  There are some who say "but its to inform the public about their rights"; ok, but its gone way past that point right? I challenge you to watch tv for 15 mintues straight - any channel - and NOT see an attorney add.  Chances are that you'll probably see several.  Another general consensus amongst laywers I talk to is that while they'd like to see attorney tv ads go away, they don't think it will happen. 

Regardless of how you or I feel about attorney ads, what ultimately matters, at least here in Florida, is how the Florida Bar feels and this is what they said in their "Advertising Update" article which appeared in the March 15, 2010 issue of The Florida Bar News:

So want to know the short version of what attorneys can and cannot say?  Ready to play that attorney can / cannot say that!?  I'll put the statements up today and tomorrow give you the answers - meantime - see if you can guess?  Leave a comment to play along.

1. Can a Florida Lawyer say "We"?

a. Yes.

b. No.

c. It depends on if the attorney is a solo practitioner or part of a firm.

d. A lawyer can say "Oui" if he is trying to answer in the affirmative while speaking to a French person when asked are you a lawyer?

2. Can A Florida Lawyer call his/her firm "Awesome Accident Attorneys"?

a. Yes, because that it is a totally awesome name for a law firm.

b. No, because a more descriptive name for the firm would be "Wicked Awesome Accident Attorneys"plus that would give the snow birds knowledge that the attorney knew a little something about how people talk in New England which might be an added plus.

c. No, because a trade name like "X Law Group" is misleading and violates the rule if an attorney is a solo practitioner.

d. Not unless the attorney has appeared on the TV show The Bachelor, in which case, the attorney should call himself "The Most Amazing Accident Attorney For Your Journey - We'll Give You A Rose At The Close Of Your Case."

3.  Can a Florida Lawyer say "We all have something we do best.  I represent injured people.  That's what I do best." ?

a.  Yes, because, just like they say in the Cub Scouts "We Always Do Our Best."

b. No, because the attorney probably does something else best and probably hasn't thought that statement out carefully enough.  And who's to say what's best?  Did he do some testing before making that statement?

c.  Yes, because the last sentence of that statement does not describe or characterize the quality of the services being offered.

d. Only if the attorney plays the song "You're Simply The Best - Better Than All The Rest" at the end of the ad and he does the two fists raised high in the air champion style with an American Flag waving in the background.

4.  Can A Florida Attorney Say "We've had cases where policies had been changed and the family has been paid money, but they're happier about the policy change that's been made then they are about the money..."

a. Yes, because lawyers are supposed to make the world fair.

b. No, because they have incorrectly used the word "then" instead of the correct word "than" which should be used for comparisons.

c. No, because the statement refers to past successes or results obtained which is prohibited in attorney ads in Florida.

d.  No, because they didn't tell us what the change obtained was.

5. Can A Florida Lawyer say "[name of attorney] ... played a significant role in [the appointment of four new Justices to] the Florida Supreme Court.  In all, he advised Crist on the selection of 62 judges throughout the state."  in a National Law Journal?

a. No because that statement should have been in a Florida Law Journal not a National Law Journal.

b. Yes, because then the clients will know that if their case goes to court with this lawyer, then the lawyer and the judge are probably friends and play golf, which will no doubt help with the result obtained in their case.

c. Yes, but only if it is not a misleading statement, in other words, if its true then the lawyer can say it.

  d. Only if the lawyer discloses how much money he gave to the judges's campaigns and promises that he didn't give them any kickbacks or that sort of thing.

  

So leave a comment with your guesses and I'll post back with the answers.

And bonus:  Let me know whether I can sign my letters like this:

"Wicked Awesome Attorney, Kathryn Fenderson Scott"

Bicycle Accidents In Florida

If you were hit by a motor vehicle while you were riding a bicycle in Florida, here are ten useful tips from a bicycle accident lawyer to follow:

1. First things first: Is anyone injured?  If so, take steps to prevent further injury; call for emergency assistance; get medical treatment and attention immediately if you or anyone else needs it.

2.  Prevent further injury:  Make sure everyone is safe from being injured further; if you are in the road or in the line of traffic, get to the side of the road as quickly as possible.  If you are unable to move the vehicles and they are creating a traffic hazard, then put flares or some other type of accident warning device in the road to warn other drivers of the danger; and get away from the vehicles as quickly as possible.  Call the police and let them know that there are vehicles in the roadway.

3.  Call the police.  It is best to get an accident report so that your accident is properly documented, some insurance companies have indicated that they will not process a claim without an accident report.  Tell the police whether you are injured. Answer the police officer's questions honestly. If you are shocked, dazed, lightheaded or confused, let the police know that you need medical treatment and how you are feeling and that you aren't able to answer questions at that time. Remember, anything you say can and will be used against you so it is important to tell the truth and to do so when you are clear-headed.

4. Gather Inforrmation:  Get the other driver’s information including their names, addresses, driver’s license numbers, make and model of their vehicles, license plate numbers, and their insurance company name and policy number. If there are witnesses, get their names, addresses and telephone numbers - witnesses are very important.  Write down anything the other driver says, especially if they admit fault.  Keep a notepad and pen or pencil on your bike in a weatherproof container so that you are prepared in case of an accident.  If you need a form for this, please email our office at fenderlaw@aol.com for a sample form that we can email to you.

5. Take pictures with your cell phone; if  your cell phone does not have a camera then make sure to keep a disposable camera in a weatherproof container on your bike. 

6. Get medical treatment if you are hurt.  Don’t decline the ambulance or emergency room if you are hurt.  It is important to get immediate treatment for your injuries.  

7. Call an attorney with experience handling bicycle accidents; ask your friends and family or  your doctor if they can recommend a qualified attorney. Bicycle accidents have unique issues and you need an attorney who knows what those issues are.  Attorneys handling bicycle accidents in Florida work the same way auto accident attorneys do - on a contingency fee basis - in other words, if the attorney does not make a recovery for you then the attorney is not owed any fees - and most attorneys don't charge for costs either, but you need to check.  You should also ask your attorney if they can guarantee that the attorney won't put more in his/her pocket than  you receive when all is said and done; this can happen with a contingency fee contract.

8. Report the accident to your insurance company.  Your carrier will want a recorded statement, you should have your attorney present when you give your own insurance company a statement; talk to your attorney about whether to give a statement to the at fault driver's insurance company. 

9.  Do not settle your claim until you know the full extent of your injuries; many insurance companies will try to offer you money in the beginning but the money and/or a release may mean you are prevented from recovering the full value of your claim.  Some insurance carriers are aggressive about trying to get you to settle early because it saves them money; do not fall into this trap.

10. Know your rights, the best way to do this is to consult with an attorney - most personal injury attorneys will provide a free consultation.  Make sure the person you are talking to is actually a member of the Florida Bar (if your accident was in Florida), that the person is an attorney - and not a paralegal or runner - many of the high volume / frequent advertising attorneys hire paralegals or runners to handle their intake process and the attorney is not involved; this is not your best bet for a law firm.  Make sure that the attorney is there at the initial meeting to sign the contract with you and answer your questions and make sure that an attorney - not a paralegal or case manager - is going to handle  your case.

If you’ve had a bicycle accident, auto accident, truck accident, motorcycle accident, pedestrian vs. auto accident, or any other injury claim in Pinellas County:  St. Petersburg, Pinellas Park, Gulfport, South Pasadena, St. Pete Beach, Treasure Island, Madeira Beach, Seminole, Kenneth City, Tierra Verde, Palm Harbor, Clearwater, Safety Harbor, Dunedin, Passagrille, Indian Rocks, Belleair Bluffs, Northeast St. Pete, or anywhere else in Pinellas County!;  Hillsborough County:  Tampa, Temple Terrace, Ybor, Valrico, or anywhere else in Hillsborough County!;  Manatee County, Sarasota County, Pasco County or anywhere in Florida!, please feel free to email us at fenderlaw@aol.com, visit our website at http://www.scottandfenderson.com or call the office  727-321-0099; or call me, Attorney Kathryn Fenderson Scott, on my cell phone at 2727-439-3694 or my partner, Charles Scott, on his cell phone at 727-445-0439.  We offer personal service to personal injury victims in Florida.