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Florida Law
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Process of a Lawsuit
The American legal system uses an adversary model to settle disputes. This model pits
parties against one another in a contest to persuade an impartial third party (either a judge
or jury) to accept their version of the dispute. Ideally, by comparing the two versions, a
judge or jury is able to discern the truth and make a just decision.
One of the fundamental distinctions in the American legal system is the difference
between civil and criminal matters. Civil cases resolve private conflicts between people,
business or government, often by determining money damages for some harm. Criminal
cases entail the enforcement of law by government and may involve fines, incarceration,
or (in states with the death penalty -- such as Florida) death.
Despite their differences, civil and criminal lawsuits do share some of the same
procedural rules. For example, both types of suits must conform to statutes of limitation.
A statute of limitation is a law setting the period of time during which a lawsuit must be
filed. The time period varies depending on the legal claim. If a case is not filed within the
period set by law, the right to file that lawsuit is lost (see chart below).
Both civil and criminal cases also have to meet certain jurisdictional requirements.
Jurisdiction refers to rules governing which court has authority to hear a particular case.
What follows is a discussion of how a lawsuit moves through either the civil or criminal
court system.
The defendant's written response to the complaint is known as the answer. The answer
admits or denies allegations in the complaint. It also states any defenses to the complaint,
such as if there is a lack of subject matter jurisdiction or the statute of limitations has
already expired. The answer can also contain any counterclaims that the defendant
would like to make against the plaintiff. The counterclaims, however, have to relate to the
plaintiff's complaint. The defendant cannot counterclaim about entirely unrelated issues --
that would be a different lawsuit.
As any lawyer can tell you, an uncomplicated lawsuit is a rarity. Plaintiffs may sue
additional defendants and bring them into the original lawsuit. Outside parties with a
related claim sometimes wish to intervene. Defendants may make counterclaims against
the plaintiff, sue other third parties and bring them into the original suit, or even sue other
co-defendants. For situations in which there is a large class of plaintiffs with similar
claims against one or more defendants, plaintiffs can seek to file a class action lawsuit.
An example of a class action would be people all over the country who have been hurt
by a product and who sue the manufacturer in one single action. The rationale behind
such suits is that both plaintiffs and defendants benefit by having one large lawsuit rather
than hundreds or thousands of individual ones.
In preparation for trial, parties often gather information from one another and from other
sources. This period of information gathering is known as discovery. Discovery can take
a number of different forms. Parties can ask one another for copies of documents; they
can submit interrogatories, which are written questions the other party must answer
The vast majority of cases settle before the parties reach the courthouse steps. Sometimes
the cost and effort in preparing for trial will persuade parties to reevaluate their positions.
Parties may negotiate their own settlement or use some means of alternative dispute
resolution (ADR) to bridge their differences (see the Alternative Dispute Resolution
chapter). Another way a lawsuit can be concluded before reaching trial is through a
summary judgment. If, after the complaint and answer have been filed, it is clear that
there is no dispute concerning the facts, only the parties' interpretation of the facts, then
the judge will grant a motion of summary judgment and make a decision by applying the
facts to the law.
However, if there is a genuine dispute about the facts in the case and the parties are not
interested in settling, they will proceed to trial. An outline of how a trial is conducted
follows a discussion of the criminal process.
The criminal process begins when a person is arrested. The police can arrest someone if
they have probable cause to believe that the person has or is in the process of committing
a felony, or if a misdemeanor was committed in the presence of an officer. An example
of a felony is burglary, rape, or murder. An example of a misdemeanor is shoplifting,
willfully telling the police false information about a crime, or knowingly transmitting
sexually dangerous diseases. The police can also arrest someone if they have a warrant. A
warrant is a court order charging that there is probable cause to believe a person has
committed a crime and should be brought into court.
When making an arrest, the police are entitled to use all reasonable and necessary force to
overcome any resistance. Regardless of your feelings about being arrested, it is best not
to resist. Violently resisting arrest is a felony in Florida; resisting arrest without violence
is a misdemeanor. Even if you are found not guilty of the crime for which you were
arrested, you still can be charged with resisting arrest.
A person has the right to an appearance before a judge within 24 hours of his or her
arrest. At this initial appearance, the judge will inform the person of the charges against
him or her and will determine whether pretrial release is permissible. Persons in custody
for the alleged commission of a crime are usually entitled to pretrial release, unless they
are accused with a capital offense (a crime punishable by death) or an offense punishable
by life imprisonment and the proof of guilt is "evident or the presumption great."
Depending upon the situation, the accused may be released on his or her own
recognizance, may be placed in the custody of a designated person or organization
agreeing to supervise the accused, or may have to execute a bail bond. In any case, the
accused must agree to return to court for further proceedings. If the government believes
the accused may flee or will place the community at risk, it can file a motion for pretrial
detention.
If the attorneys for the government believe that the arrest was justified and the available
evidence supports the arrest, the government will charge the accused person with a
crime. Charging can be done directly with a document known as an information or a
grand jury can issue an indictment. A grand jury is a panel of citizens that determines
whether there is sufficient evidence to charge a person with a crime. A grand jury does
not determine guilt or innocence of a defendant; that task is given to a petit jury during
the trial portion of the criminal process. Both an information and an indictment are
formal charging instruments that specify the crime, the accused, and give a court
jurisdiction to try the case. Capital felonies can only be charged by an indictment.
The arraignment is the accused's formal response to the charges filed by the
government. The accused may plead guilty, not guilty, or nolo contendere. A plea of nolo
contendere means that, without admitting guilt, the accused will not contend the charges
made by the government. Judges will not always permit a nolo contendere plea.
If the accused enters a plea of guilty or nolo contendere, there is no need for a trial and
the next step is sentencing. If the accused enters a plea of not guilty, the parties will
proceed to trial. Along the way, the accused might file motions attempting to suppress the
evidence against him or her on constitutional grounds. Evidence might have been seized
without a proper warrant or a confession might have been obtained improperly. Also
along the way to trial, and sometimes during trial, plea bargaining may occur. That is,
the accused might agree to plead guilty to a lesser charge if the prosecution agrees to drop
the more serious charge. In the interest of expediency and moving cases through the
courts, plea bargaining is typically encouraged.
The first step in a jury trial is jury selection, otherwise known as voir dire. During voir
dire the attorneys, and occasionally the judge, ask questions of potential jurors in an
attempt to gauge their capacity to be fair and impartial. Persons who may somehow be
biased or whom the attorney believes will not be sympathetic to his or her case can be
removed. This is known as a peremptory challenge. Each attorney has a limited number
of peremptory challenges and cannot remove a prospective juror for reasons such as sex
or race. After a jury is selected, the members are sworn in.
Next come the opening statements. Each side tells the jurors their version of the case and
what they intend to prove. The plaintiff in a civil case (the prosecution in a criminal case)
gives its opening statement first. Following opening statements, the plaintiff or
prosecution proceeds with the evidence of their case. One form of evidence is the
testimony of witnesses. The plaintiff or prosecution will ask a witness to the witness
stand and, after the witness is sworn in, will ask him or her some questions. This is
known as direct examination. After the plaintiff or prosecution is finished, the defense is
then permitted to ask the witness some questions. This is called cross-examination. After
cross-examination, the plaintiff or prosecution may again question the witness. This is
known as redirect examination. Evidence can also take other forms such as documents,
charts, pictures, audio or video recordings.
After the plaintiff or prosecution has finished presenting its case, it is the defendant's
turn. This time, the defense can call witnesses for direct examination and the plaintiff or
prosecution will conduct cross-examination. During both the plaintiff's or prosecution's
case and the defense's case, attorneys will make objections about what questions can be
asked of the witnesses and what evidence can be introduced into the record. There are
very specific rules governing what evidence is admissible.
After both sides have concluded presenting their cases, the attorneys give closing
arguments. In closing, an attorney will attempt to summarize the evidence present and
explain why his or her side should prevail. If a judge is deciding the case, he or she will
thank everyone involved and render a decision within a certain period of time, usually 90
days. If a jury is deciding the case, the judge will instruct the jury as to what law must be
applied to the evidence of the case.
One area in which the civil and criminal trial processes differ is the standard of proof. In
a civil trial, the plaintiff must generally prove his or her case by a "preponderance of the
evidence." Another way to put this is "more likely than not." In a criminal trial, the
Both parties in a civil trial and the defendant in a criminal trial have the right to appeal a
decision if they believe some error was made. Prosecutors, however, cannot appeal a not
guilty verdict. (A discussion of the federal and state appellate courts is contained in The
Florida Court System chapter.)
Civil
Type of Lawsuit Must be Filed Within
An action on a contract, obligation, or liability founded on a Five years from date cause
written document of action arises
An action to foreclose a mortgage Five years
An action founded on negligence Four years
An action relating to paternity Four years
An action founded on the design, planning, or construction of
Four years
an improvement to real property
An action for personal injury founded on design, manufacture,
Four years
distribution, or sale of personal property (products liability)
An action for trespass on real property Four years
An action for taking, detaining or injuring real property Four years
An action on a contract, obligation, or liability not founded on a
Four years
written instrument
An action for assault, battery, false arrest, mailcious
Four years
prosecution, or false imprisonment
An action for professional malpractice Two years
An action for wrongful death Two years
An action for defamation Two years
An action for specific performance of a contract One year
* There are numerous exceptions and qualifications to the information listed above. For
information relevant to your particular cause of action, consult an attorney
Source: Florida Statutes 95.11, 775.15
State Courts
The Florida court system consists of the Florida Supreme Court, district courts of appeal,
circuit courts, and county courts. As the name suggests, the Florida Supreme Court is the
highest court in the state. Located in Tallahassee, the Florida Supreme Court is
composed of seven justices. Five justices must be present in order to conduct business
and at least four justices must agree on a decision in each case.
The jurisdiction of the Florida Supreme Court is both mandatory and discretionary. The
Florida Supreme Court must hear all judgments imposing the death penalty, district court
decisions declaring a state statute or provision of the state constitution invalid, bond
validation judgments, and actions of statewide agencies relating to public utilities. The
Florida Supreme Court has discretion in hearing decisions of district courts of appeal that
expressly declare a state statute valid; questions certified by the district courts of appeal
as being of great public importance; or decisions where the district courts are in conflict
To become a Florida Supreme Court justice, a person must reside in Florida and have
been admitted to The Florida Bar for the preceding 10 years. When there is a vacancy on
the court, the governor appoints the next justice from a list of three qualified persons
prepared by the state Judicial Nominating Commission. Justices serve for six years, after
which they can have their name put on the general election ballot if they wish to remain
in office. The court hears oral arguments on the first Monday through Friday of each
month, except in July and August.
There are five district courts of appeal in Florida, each covering a geographic district.
Judges sit in panels of three and decide appeals from circuit courts in most criminal and
civil cases. They also have jurisdiction to decide appeals from county courts when a state
statute or provision of the state constitution is held invalid, or for orders or judgments
certified to be of great public importance. As a practical matter, the district courts of
appeal are the final appellate review of litigated cases. Someone displeased with a district
court's decision may seek review in the Florida Supreme Court or in the U.S. Supreme
Court, but the overwhelming majority of such requests are denied.
Most civil and criminal cases in Florida originate at the circuit court level. The circuit
courts are courts of general jurisdiction, handling such matters as domestic relations,
major criminal offenses, probate issues, civil cases involving amounts greater than
$15,000, and appeals from county courts.
The county courts, which occupy the lowest rung in the Florida court system, are
sometimes referred to as "the peoples' courts," since a large portion of the county courts'
work involves citizen disputes like traffic offenses, county and city ordinance violations,
less serious criminal offenses and civil cases involving less than $15,000, such as
landlord/tenant disputes.
The small claims division of the county court permits members of the public to bring
their own lawsuits without an attorney (provided the amount in dispute is less than
$2,500). The clerk of the local county court can provide information on how to file a
small claims lawsuit.
The state of Florida pays the salaries of all judges and their secretaries. The state shares
with the counties most of the remaining expenses. The facilities for the appellate courts
are provided by the state and the counties provide facilities for the trial courts.
Supreme Court
• Located in Tallahassee • Justices are appointed by Governor
• Each justice serves a 6-year
term, but can remain in office • Decisions of the Florida Supreme Court can
if retained in a general election be appealed to the U.S. Supreme Court
Federal Courts
Like the state courts, the federal system consists of trial courts, appellate courts, and one
Supreme Court. The U.S. Supreme Court is the highest court in the nation and is made
up of nine justices appointed for life. The Supreme Court hears appeals from the federal
courts of appeals and from the highest state courts. However, the Supreme Court's
jurisdiction is largely discretionary. That is, it chooses which cases it wants to hear by
granting a "writ of certiorari." Certiorari is Latin for "to be informed of." Typically, cases
granted certiorari involve a disagreement among the federal appellate courts as to the
interpretation of federal law or involve some issue important to the national interest. The
chances of a case reaching the Supreme Court are small. Of the thousands of losing
parties who petition the Court to review their cases, only about 100 are granted certiorari.
Though less visible than the president or Congress, the U.S. Supreme Court is a powerful
force in federal government. Because of its position as the final interpreter of the
Constitution, the Supreme Court has the power to declare an act of Congress or the
president invalid because it is inconsistent with the Constitution. This power is known as
judicial review. When the Supreme Court declares an act of Congress or of the president
unconstitutional, it can be overruled only by a subsequent decision of the Court or an
amendment to the Constitution, which requires passage by a two-thirds majority of both
Below the Supreme Court are 13 U.S. courts of appeals, also known as circuit courts.
The country is divided into 11 circuits (plus the Court of Appeals for the District of
Columbia and the Federal Circuit Court of Appeals). Each circuit has a court of appeals
which hears cases appealed from the federal district courts in that circuit. District courts
are where federal trials are conducted. Every state has at least one district court, and
highly populated states have more.
Florida is located in the Eleventh Circuit, with Georgia and Alabama. The U.S. Court of
Appeals for the Eleventh Circuit usually sits in Atlanta, but occasionally hears cases in
Jacksonville, Miami, Mobile, and Montgomery. Florida also has three U.S. district courts,
one in the northern, middle and southern districts.
Also part of the federal system are a number of courts of specific jurisdiction. For
example, there are federal tax courts and bankruptcy courts throughout the country and,
in Washington, D.C., the U.S. Court of Appeals for the Federal Circuit hears appeals
regarding patents, customs, and claims against the U.S. government.
Becoming an attorney in Florida entails passing the Florida Bar examination, in addition
to having a degree from an accredited law school and an undergraduate college degree.
Presently, there are approximately 52,000 attorneys licensed to practice in Florida.
Salaries for Florida attorneys vary according to a number of factors (e.g., area of practice,
firm size, location, years of experience, etc.), but according to a recent Florida Bar
survey, the median salary for a starting attorney in 1994 was $30,000. An attorney
working 6-8 years had a median salary of $55,000; and a partner (with more than 8 years
experience) had a median salary of $100,000.
Resources
For more information on any of the programs of The Florida Bar, write to The Florida
Bar, 650 Apalachee Parkway, Tallahassee, FL 32399-2300 or call The Florida Bar's
Public Information Office at (904) 561-5834.
The Florida Bar Call-A-Law service can be reached at (904) 561-1200. To receive a
brochure which includes a directory of the recorded messages, call the The Florida Bar.
The Florida Supreme Court's Home Page address on the World Wide Web is
http://.www.justice.courts.state.fl.us .
Though often confused, torts and crimes are two separate legal entities. Torts are civil
wrongs against an individual exposing the tortfeasor to liability. Crimes are wrongs
against society or the state and are punishable by incarceration or fines. Some acts,
however, can be both a tort and a crime. For example, someone who used force to cause
bodily injury has committed a tort known as battery and is liable to the victim for
damages. Battery is also a first degree misdemeanor under Florida law and punishable by
up to one year in prison. Thus, a person could be prosecuted and convicted of battery, and
later face a civil lawsuit brought by the victim.
This chapter outlines general tort principles and theories of recovery. However, because
personal injury law is wide and varied, with many different applications, this Guide has
devoted three additional chapters to exploring areas of personal injury law relevant to
consumers. See the Medical and Professional Malpractice , Personal Injury Law:
Products Liability , and Personal Injury Law chapters as applied in the automobile,
railroad, aviation, and maritime contexts.
Intentional Torts
As the name implies, intentional torts are those torts for which the defendant intends the
consequences of an act. Battery is an example of an intentional tort; so is assault
(threatening someone with physical violence), false imprisonment or other invalid uses of
legal authority, invasion of privacy (e.g., unauthorized use of a person's name or picture
for commercial purposes), and trespass. Defamation is also considered an intentional tort,
either in print, on television or radio (libel), or in spoken form (slander).
To proceed in a lawsuit for damages caused by an intentional tort, a plaintiff must show
that the defendant committed the tort, intended the consequences or knew with
substantial certainty what consequences would result, and that the defendant's act was a
substantial factor in the resulting harm or injury. In some cases, however, there are
defenses to intentional torts which excuse the defendant from liability. For example,
someone may commit battery in self-defense. Under Florida law, a person is justified in
using force to defend him or herself, so long as the force is reasonably necessary.
Similarly, the truth of a statement may be a complete defense to a defamation action.
Unlike negligence, a plaintiff suing for an intentional tort is not usually required to show
actual damages in order to proceed with a lawsuit. In the case of defamation, for example,
the resulting emotional distress and mental anguish are considered sufficient damages to
justify a lawsuit (however, the damage award may be nominal without proof of a
quantifiable injury). Plaintiffs who do suffer quantifiable injury are entitled to
compensatory damages (damages which compensate the plaintiff for injury to person or
property) and may receive punitive damages (damages aimed at punishing the defendant
and deterring future similar action) if the tort was willfully committed or particularly
malicious.
Negligence
The majority of personal injury lawsuits in Florida are brought under a theory of
negligence. Negligence has to do with how careful a person was when he or she caused
an injury, and how careful, according to the law, he or she should have been. There are
four requirements to proving negligence. A plaintiff must show (1) the defendant had a
duty to conform to a certain standard of conduct to protect others from unreasonable risk;
Proximate cause is the legal term given to describe an act which causes a plaintiff's
injury or, more accurately, causes the injury for purposes of assigning liability.
Sometimes a defendant's act may be so remotely related to the plaintiff's injury as not to
be considered a proximate cause. For example, in a famous 1928 New York case, a
railroad employee helped a passenger onto a moving train by pushing him from behind.
In the process, a package the passenger was carrying, wrapped in newspaper and
containing fireworks, was dislodged, fell, and exploded. The force of the explosion
knocked down some scales at the far end of the train platform, a considerable distance
away, injuring the plaintiff. The plaintiff sued the railroad company for damages. The
court ruled that since the railroad employee could not foresee the complicated and
unlikely sequence of events that led to the plaintiff's injury, the employee's action was not
the proximate cause of the plaintiff's injury. In other words, although the railroad
employee's action "caused" the plaintiff's injury in a technical sense, the line of causation
was too remote to hold the railroad company liable.
Damages must be shown in a negligence lawsuit, otherwise the lawsuit will be dismissed.
Plaintiffs who successfully prove the defendant's negligence are entitled to compensatory
and punitive damages. However, recent Florida legislation has limited the recovery of
punitive damages in negligence actions (limitations also apply to strict liability, products
liability, professional negligence, and breach of warranty). For example, a punitive
damage award of more than three times the compensatory damages is considered
excessive and subject to reduction. Additionally, 35 percent of every punitive damage
award goes to the state of Florida. The remaining 65 percent goes to the plaintiff.
The outcome of lawsuits alleging negligence can be difficult to predict because the
reasonable person standard is vague, imprecise, and apt to be interpreted differently by
different people. Applying the reasonable person standard to a particular set of facts can
be a very subjective process. Finding an attorney with experience presenting negligence
cases and expertise in arguing the reasonable person standard to a judge or jury are the
keys to a successful lawsuit.
Often, accidents are not black and white events. That is, a plaintiff is usually not 100
percent fault-free and a defendant 100 percent negligent. In 1973, Florida adopted the
doctrine of comparative negligence which enables a jury to more accurately apportion
liability in a negligence lawsuit. Comparative negligence permits a jury to compare the
negligence of the plaintiff with the negligence of the defendant and decide damages
accordingly. If the jury finds the plaintiff 10 percent negligent in a car accident, and the
defendant 90 percent negligent, the defendant has to pay only 90 percent of any damage
award.
Strict Liability
If a plaintiff sues under the theory of strict liability, he or she contends that the
defendant is liable regardless of fault. The issue of how careful a defendant was or should
have been is irrelevant. If the defendant's activity was the proximate cause of the
plaintiff's injury, the defendant is liable.
Strict liability applies only in a limited number of areas. For example, owners of wild or
dangerous animals are strictly liable for any injuries their animals may cause (owners of
domestic animals -- dogs and cats -- are liable only if negligent). Also, anyone engaged in
ultrahazardous or abnormally dangerous activities is strictly liable for injuries. Examples
would include demolishing buildings, crop dusting, manufacturing explosives, blasting,
and fumigating. Finally, and most important for consumers, manufacturers may be
strictly liable for injuries caused by their products. (See the Personal Injury Law:
Products Liability chapter for more information.)
To prove a case based on strict liability, four elements must be established. A plaintiff
must show (1) the defendant had an absolute duty to make the activity or product safe; (2)
the defendant breached that duty; (3) the breach of the duty was the proximate cause of
the plaintiff's injury; and (4) the plaintiff suffered an injury. Because the issue of fault is
not relevant to a strict liability case, the most crucial element of the above four is that of
causation.
As discussed in the Process of a Lawsuit chapter, a plaintiff has to prove his or her case
"by a preponderance of the evidence." In other words, a plaintiff must show that a
majority of the evidence establishes that the defendant committed a tort (under whichever
theory of liability). This is different from the burden of proof in a criminal case. In a
criminal case, the prosecution must prove the defendant's guilt "beyond a reasonable
doubt" -- a much higher standard. When a tort is also a crime, the results from the civil
and criminal cases do not have to be consistent; in fact, the outcomes are frequently
Affirmative Defenses
A defendant who makes an affirmative defense does not deny the evidence against him or
her, but argues that the plaintiff is also culpable and, for that reason, any judgment
against the defendant should be reduced or dismissed entirely. In the tort context, two
examples of an affirmative defense are comparative negligence (see above) and
assumption of risk. The doctrine of assumption of risk states simply that in situations
where the plaintiff was aware of the potential for injury and proceeded nonetheless, the
defendant's liability should be reduced, if not erased altogether.
Vicarious Liability
Vicarious liability describes those instances wherein one person is held liable for the
tortious acts of another, even though the first person was not involved in the act, did
nothing to encourage the act, and may even have attempted to prevent it. For example,
under Florida law, a person who consents to the use of his or her car by another is liable
for any negligent damage the second person may do with the car.
The most common form of vicarious liability occurs in the area of employment. An
employer is liable for any tortious acts committed by an employee acting within the scope
of employment. But exactly what actions are "within the scope of employment" is a
tricky issue. If an employee is driving his or her own automobile to work and hits a
pedestrian, is that within the scope of employment? Probably not. What if the employee
is driving a company car he or she routinely takes home? This is a better case for
establishing vicarious liability. What if a telephone repairperson making a house call
during working hours causes an accident while driving a company van? A court will
almost certainly find the employee to be acting within the scope of employment.
Another area in which vicarious liability is applied is in the case of bar owners or anyone
providing alcohol. Under Florida law, anyone serving alcohol to a minor or to a known
addicted drinker may be liable for intoxication-related damages caused by that person.
In cases where two or more defendants (whether acting in concert or not) are responsible
for a plaintiff's injury, and it is unclear which defendant is responsible for which portion
of the injury, the defendants can be found jointly and severally liable for damages. In
other words, a plaintiff has the right to collect the damage award from the defendants as a
whole or individually, depending on the plaintiff's preference. An example might be a
situation in which two cars collide with a third, causing the plaintiff multiple injuries, and
it is not known which collision caused which injury. Where it is clear which defendant
caused which portion of the plaintiff's injury, each defendant will be liable only for that
portion of the injury he or she caused.
If a person dies from a defendant's tortious action, the decedent's survivors and estate
may bring a lawsuit for wrongful death. Survivors include the decedent's spouse,
children, and parents. Each survivor may recover for loss of the decedent's support or
services. Additionally, the surviving spouse, minor children, and all children if there is no
surviving spouse, may recover for loss of the decedent's companionship and protection.
They may also recover for pain and suffering. The estate can recover for lost earning
from the date of injury until the date of death, and funeral and medical expenses if paid
by the estate.
Government Immunity
There was a time when citizens could not sue the government for torts committed by
government employees. This immunity has been largely waived by the federal and state
governments, including Florida. The Florida state government is now liable for the torts
of its employers to the same extent as private employers. However, there are limits. For
example, there is no duty of care concerning how the state exercises its discretionary
power to enforce the law. A person cannot sue the fire department for failing to put out a
fire in his or her house, nor the police department for failing to stop the theft of his or her
car. Only if a plaintiff can show that the government owed him or her a special duty,
above that owed to the public at large, will he or she prevail in a tort suit against the
government.
Statute of Limitations
Remember that there are limits to the time period in which a lawsuit can be filed. For
example, a lawsuit based on negligence must be filed within four years from the time the
cause of action arose. If a person fails to file a lawsuit within the time period prescribed
by the statute of limitations, the person loses the right to file that lawsuit. (See the Process
of a Lawsuit chapter for more information on statutes of limitation.)
A plaintiff injured by a product may bring a lawsuit under any of three theories of
recovery: the tort theories of strict liability and negligence (see the Personal Injury Law:
General chapter), and the contract theory of breach of warranty (see the Contract Law
chapter). Each of these theories has its advantages and disadvantages, and an attorney
may use one rather than another to increase the likelihood of recovery, or indeed, may
use all three. But the most important of these theories by far, and the one which has most
affected America's commercial landscape, is strict liability.
Manufacturers are strictly liable only for defective products which cause injuries.
Therefore, a threshold requirement for an injured plaintiff is to show a product to be
defective. Exactly what constitutes a defect remains imprecise, but courts agree that there
are three separate types of defects: manufacturing defects, design defects, and defects in
warning.
Product dangers which are "open and obvious" do not require warnings. But what
constitutes "open and obvious" is not strictly defined. Something that is obvious to one
person may be unforeseeable to another. Consequently, some manufacturers will warn
consumers about even remote risks so as to defend against potential lawsuits.
Proximate Cause
In addition to proving that a product is defective, a plaintiff must also show that the
product caused his or her injury. While this may not be a difficult task in many situations,
it can be in others. For example, proving that a particular drug caused a plaintiff's injury
entails a great deal of medical evidence. It may also entail battling arguments made by
the defendant that the injury was caused by other reasons unrelated to the drug. And
because medicine remains an inexact science, the answer to the question of causation is
sometimes never satisfactorily determined.
Damages
It is important to note that the doctrine of comparative negligence (see the Personal Injury
Law: General chapter) applies to products liability cases. If a plaintiff fails to exercise
ordinary care in using the product which caused his or her injury, the amount of recovery
can be reduced.
One reason that a plaintiff may want to bring a negligence action in lieu of or in addition
to a strict liability action is that he or she may have considerable evidence of the
defendant's fault. A jury persuaded of a defendant's fault may be more apt to award
higher damages, perhaps even punitive damages.
Unlike negligence, breach of warranty lawsuits do not involve proof of fault. Instead, a
plaintiff must show evidence of a product's failure to meet the terms of either its express
or implied warranty (this evidence will be similar to the "defective product" evidence
necessary in a strict liability or negligence case). One characteristic unique to breach of
warranty lawsuits is the possibility of recovery for economic loss. Whereas strict liability
and negligence product liability lawsuits can recover compensatory and punitive damages
Medical Malpractice
Medical malpractice comprises the majority of professional malpractice lawsuits brought
in this country. This is not to say that medical professionals are more prone to committing
malpractice, but that they are the target of more malpractice lawsuits -- which is not
surprising given the gravity of the situations faced everyday by the medical profession.
The number of lawsuits against other professionals, however, is increasing and many of
the concepts used in those lawsuits are adapted from the medical malpractice context.
Thus, an understanding of medical malpractice is a good introduction to professional
As in any malpractice lawsuit, a plaintiff suing for medical malpractice must show the
four elements necessary to prove negligence: duty of care, breach of duty, injury, and
proximate cause (see the Personal Injury Law: General chapter for more discussion on
negligence). A person accused of malpractice can defend him- or herself by showing that
one of these elements is missing and/or by establishing an affirmative defense. An
affirmative defense is a legal argument that admits the existence of the required
elements, but maintains that the plaintiff is also culpable.
Duty of Care
Once a doctor or health care professional agrees to diagnose or treat a patient, he or she
has assumed a duty of care toward that patient. What this means is that the health care
professional must treat the patient with at least the same level of care as a reasonably
competent health care professional. But what about persons who are not patients? For
example, does a doctor have a legal duty to help a stranger choking in a restaurant? The
answer is no. At present, the law does not place an affirmative duty on anyone, including
health care professionals, to render assistance to others in most situations. Of course, a
doctor can help if he or she wants to, but there is no legal obligation.
Generally, a health care professional does not have a duty to someone who is not a
patient. However, a psychotherapist may have a duty to warn a person if a patient has
made specific threats against that person and the patient has the ability to carry out those
threats. In such instances, Florida law permits a psychotherapist to breach his or her duty
of confidentiality and warn the person threatened by the patient.
Breach of Duty
Unlike ordinary negligence cases, proving that a health care professional breached his or
her duty of care involves showing what a reasonably competent health care professional
would have done in a similar situation. Unfortunately, most judges or jurors do not have a
clue as to what is acceptable medical practice. As a result, medical malpractice lawsuits
often become battles between medical experts testifying as to whether the defendant
breached his or her duty of care.
In general, a reasonably competent health care professional is one who stays abreast of
the relevant treatment literature and uses methods commonly accepted in the profession.
A professional who disregards well-established medical standards or attempts to perform
procedures beyond his or her capabilities is exposing him- or herself to a possible
malpractice lawsuit. Yet health care professionals often differ on the best course of action
in a particular situation. Medicine, like law, is an inexact science. What one professional
Proximate Cause
Damages
Persons who successfully sue for medical malpractice are entitled to receive
compensatory damages which may include damages for pain and suffering or lost wages.
Plaintiffs may also be entitled to punitive damages if the malpractice was willful or
particularly malicious.
Affirmative Defenses
Due to the high cost of defending against medical malpractice claims and the
corresponding increase in the cost of malpractice insurance, the state of Florida requires
that persons intent on filing a medical malpractice lawsuit abide by the following pre-suit
procedure:
1. At least 90 days before filing suit, a prospective plaintiff must notify each
prospective defendant by certified mail. Prior to this notification, a prospective
plaintiff must have investigated the grounds for the lawsuit and obtained a written
opinion from a medical expert verifying the claim.
2. During the 90-day period prior to filing the suit, the prospective defendant's
insurer must evaluate the prospective plaintiff's claim and deliver either a
rejection of the claim, an offer to settle, or an offer to admit liability and seek
arbitration damages.
After completion of the pre-suit investigations, the parties can elect to pursue the
traditional litigation process or have damages determined by voluntary binding
arbitration. Choosing to arbitrate precludes any other remedy and involves certain
limitations on damages, but may be a more expedient method of resolving the dispute.
Legal Malpractice
Lawyers are becoming an increasingly popular target for malpractice suits. Although
there is no precise definition of legal malpractice, generally speaking, a lawyer commits
malpractice when he or she fails to provide quality legal services to a client. Filing a
lawsuit against an attorney for malpractice is different from filing a complaint about an
attorney with The Florida Bar. A lawsuit entails proving the attorney committed
negligence and entitles a successful plaintiff to damages. A complaint filed with The
Florida Bar is processed through the Bar's lawyer grievance system and, if valid, may
subject the attorney to disciplinary action. Any loss a person suffers as a result of an
attorney's actions is not recoverable through the lawyer grievance system. (For more
information about the lawyer grievance system, see the How to Hire an Attorney
chapter.)
As in any malpractice lawsuit, a plaintiff suing for legal malpractice must show the four
elements necessary to prove negligence: duty of care, breach of duty, injury, and
Duty of Care
In general, an attorney owes a duty of care to a person once that person hires the attorney
and becomes a client. However, sometimes there can be confusion as to whether or not an
attorney has been hired. Many consumers mistakenly believe that consulting an attorney
is the same as retaining or hiring an attorney. It is not. After an initial consultation,
consumers are strongly encouraged to clarify with the attorney whether or not the
attorney has been retained.
The duty that a lawyer owes a client has two components -- competency and fiduciary.
The lawyer must exercise the same legal skill as a reasonably competent attorney. No
lawyer is expected to know the law so well that he or she can give perfect answers to
every legal question, but lawyers are expected to know how to research issues and to
recognize the limits of their knowledge. As a fiduciary of a client, an attorney is obligated
to treat all information relating to a client's representation as confidential and to zealously
represent the client's interests, including the disclosure of any conflicts of interest that
might impair the attorney's ability to represent the client. One Florida court described the
duty an attorney owes a clients as follows: "Implicit in every attorney/client contract
under Florida law is a covenant by the attorney that he will conduct himself according to
customary professional standards . . . . The attorney is under a duty to represent his client
with the utmost degree of honesty, forthrightness, loyalty, and fidelity, and must resign if
at any time in the course of litigation his interest in the suit becomes adverse or hostile to
this client."
Interestingly, some courts are expanding an attorney's duty of care to persons who are not
clients. For example, under Florida law, beneficiaries to a will can bring a lawsuit against
an attorney who improperly prepared or executed a client's will, resulting in the will
being held invalid. Also, depositors in a failed savings and loan may sue attorneys who
advised the savings and loan.
Breach of Duty
A lawyer is in breach of his or her duty of care if the lawyer fails to provide reasonably
competent representation or violates his or her fiduciary obligations. While proving that
an attorney had a conflict of interest or otherwise violated his or her fiduciary obligations
may be straightforward, proving an attorney failed to provide reasonably competent
representation is more difficult. Lawyers can disagree on whether a particular course of
action is reasonably competent. And, it may be unclear whether an alternative course of
action would have provided a different result. However, there are some behaviors that
clearly go beyond the bounds of competent representation. An attorney who simply
forgets a filing deadline and permits the statute of limitations to expire, thereby
destroying a client's cause of action, is an obvious candidate for malpractice.
Keep in mind that suffering an injury as a result of an attorney's representation is not the
same as malpractice. The attorney may have acted in the same manner as any reasonably
competent attorney, and while the attorney might have caused the injury, if he or she did
not breach the duty of care, he or she should not be held liable.
Damages
Accountant Malpractice
Like health care professionals and attorneys, accountants can be sued for malpractice. If
an accountant fails to provide services at a level expected of a reasonably competent
accountant and a client suffers injury as a result, the accountant may be liable for
damages.
Another difference is that many accountant malpractice lawsuits are based on violations
of federal and state statutes relating to the sale of securities. Financial statements
generated by accountants are frequently used in connection with securities offerings and
are often submitted with annual reports or other periodic filings companies must make in
compliance with Security Exchange Commission requirements. If the financial
statements are erroneous and lead to a negative on the securities markets, investors may
try to recoup their losses by asserting claims against the accountants who prepared those
financial statements. The statutes most commonly used to bring such claims are the
Securities Act of 1933, the Securities Act of 1934, and the Racketeer Influenced and
However, unlike medical and legal malpractice lawsuits, the theory of recovery in a
lawsuit against an engineer or architect will likely be contract-based as opposed to tort-
based. That is, the duty owed to a property owner derives not from the common law
notion of negligence, but from any contracts between the property owner and the
engineer or architect. It is, therefore, important for a person to have an attorney review
such contracts before signing. An attorney should also review any modifications to a
contract before they are finalized. Often, seemingly innocuous language can substantially
change a person's responsibilities.
What Is ADR?
Stated simply, ADR is the process of resolving disputes without using the court system.
The most widely used methods are mediation (where a neutral third person helps
facilitate an agreement between the parties) and arbitration (where a neutral third person
hears both sides of a dispute, then issues a decision). But, there are actually dozens of
different procedures, each with its own unique structure, giving parties an abundance of
ways to approach their particular problem.
The allure of ADR is that it promotes faster and less costly settlements. Disputes that
might last months or years in litigation, may, if the parties cooperate, be settled in a
matter of days or weeks through ADR. Faster settlements mean lower costs and less
emotional wear and tear on the parties.
ADR has other benefits as well, for example, flexibility. Being able to pick and choose
among ADR procedures permits parties to tailor the dispute resolution process to fit their
ADR's flexibility often leads to a more satisfying result. Statistics show that parties
having used ADR and played a role in crafting the resolution process or the resolution
itself are more apt to abide by the resulting decision or settlement. Moreover, ADR
permits parties to resolve their dispute without destroying their relationship, whether
personal or professional. Trials tend to turn disputes into contests with winners and
losers. ADR, particularly mediation, is less opponent-oriented and allows parties to
preserve and build upon their previous relationship.
Florida has incorporated a number of ADR programs into its court system. Under current
Florida law, judges in civil lawsuits have the power to require that parties at least try to
resolve their dispute outside the courtroom either through mediation or non-binding
arbitration. Florida has instituted a certification process for mediators requiring that they
meet specified education standards and complete a training program. There is no
certification process for arbitrators as yet, but the state has suggested that arbitrators be
members of The Florida Bar and have completed a training program.
While parties are encouraged to choose a mediator or arbitrator with experience and
knowledge, it is not necessary that he or she be certified by the state.
A final point that should be made is that ADR may not be right for every situation. If the
parties or their lawyers are especially acrimonious, non-binding ADR, particularly
mediation, is probably not the forum for resolution. Neither is ADR appropriate if one or
both parties need a judicial precedent as guidance for future conduct. Parties looking for
well-established rules of procedure and evidence, wider discovery allowances, and the
possibility of appeal may also prefer to go to trial.
ADR Options
The following is an overview of some of the more well-known ADR methods. Unlike
litigation, where "one size fits all," ADR permits parties to choose among an increasing
number of established procedures or design one of their own.
Mediation
Mediation differs from litigation and arbitration because it seeks a solution that satisfies
all parties. In litigation and arbitration, a judge or arbitrator hears evidence relating to a
particular conflict and then decides who wins and who loses based upon applicable laws.
Not so with mediation. Also, courts and arbitrators are limited by law as to what remedies
they can provide. Mediation is limited only by the nature of the problem and the parties'
own creativity.
Arbitration
Like litigation, arbitration allows both parties to present their cases to a neutral third
person or a panel of third persons who are experts in a particular area. The arbitrator or
arbitration panel makes a decision regarding the dispute after conducting a hearing,
which may include oral arguments and the presentation of evidence through witnesses
and exhibits.
Depending on the parties' choice, the decision can be binding or non-binding. The
advantage of a binding decision is that once the decision is issued, the dispute is over,
without any further costs. However, a binding arbitration decision can rarely be appealed
and the parties are stuck with the decision whether they like it or not. A non-binding
decision does not lock the parties into anything and can be helpful when the parties are
looking for a basis from which to negotiate further.
Arbitration is best used in cases involving factual conflicts. Many people feel more
comfortable having their dispute settled by an expert who is uniquely capable in a
particular area, rather than by a judge who is accustomed to handling a wide variety of
cases and may not be well-versed in the area at issue.
Mediation-Arbitration
Neutral Fact-Finding
Mini-Trial
In a mini-trial, each party makes a short presentation to a panel of experts. This panel
usually consists of one or more neutral persons and a representative from each party.
After hearing the arguments and evidence, the panel confers and issues a non-binding
decision, providing the parties with an objective appraisal of their respective cases.
Summary Jury Trial
In a summary jury trial, the parties present their arguments and evidence to a mock jury
consisting of six or more individuals. After conferring, the jury returns a non-binding
verdict. This verdict provides the parties a basis for predicting what a jury might do in a
real trial. The parties can question the mock jurors about their verdict and learn how they
reached their decision.
Costs
ADR provides a variety of dispute resolution choices between pursuing litigation and
private settlement between the parties. Depending on which ADR method is used, the
process can be more adversarial, with the parties presenting arguments and an
independent third person making the final decision, or more collaborative, with the
parties themselves crafting the result.
ADR provides a variety of dispute resolution choices between pursuing litigation and
private settlement between the parties. Depending on which ADR method is used, the
process can be more adversarial, with the parties presenting arguments and an
independent third person making the final decision, or more collaborative, with the
parties themselves crafting the result.
Resources
The Florida Dispute Resolution Center in Tallahassee was established in 1986 by the
Florida Supreme Court and Florida State University College of Law as a statewide center
for education, training, and research in ADR. For a list of certified mediators in your area
or more information, call (904) 921-2910.
The American Arbitration Association is the most established provider of ADR services
nationwide. They have offices in Miami (305) 358-7777 and Orlando (407) 648-1185.
There are many reasons persons committing criminal acts are punished; one reason is
retribution. A society outraged by a person's harmful acts often feels the need for
revenge, and punishing the criminal tends to satisfy that need. Another reason is
deterrence. Sending someone to jail or requiring him or her to pay a fine may deter not
only that person from committing a future crime, but other persons as well. Deterrence is
an argument often used in support of the death penalty. A third reason for punishment is
incapacitation. For the time a criminal is in jail, he or she is off public streets and unable
to commit further crimes. Public education is a fourth reason for punishment. The
publicity surrounding the trial, conviction and punishment of a criminal educates the
public about what is appropriate behavior and the consequences of violating the law. The
final reason is rehabilitation. Criminals who are imprisoned have an opportunity to
reevaluate their actions and reshape their values so that when they return to society they
are able to function within the boundaries of the law.
Elements of a Crime
Mental Capacity
To be found guilty of a criminal offense, a person must have the mental capacity to form
criminal intent. Florida law, however, presumes that no child under the age of seven has
the mental capacity to form criminal intent. When a child is between the ages of seven
and fourteen, the law presumes that the child still lacks the mental capacity necessary to
form criminal intent, but that presumption can be overcome by evidence. At fourteen, a
child is presumed to have the mental faculties necessary to form criminal intent.
Insanity is another instance in which a person lacks the mental capacity to form criminal
intent. Florida follows the M'Naghten Rule, which states that a defendant is entitled to an
Classification of Crimes
Florida has two criminal classifications: felony and misdemeanor. A felony is generally
defined as any crime punishable by death or more than one year in prison. A
misdemeanor is any crime punishable by imprisonment for less than one year. Florida
also has a classification known as a noncriminal violation, which is an offense punishable
by fine, forfeiture or civil remedy. Felonies and misdemeanors are further divided into
different degrees. The following list shows the maximum imprisonment and fines for
felonies and misdemeanors.
*Capital Felony: death or life imprisonment with no parole
*Life Felony: 40 years to life; $15,000
*Felony in the First Degree: 30 years; $10,000
*Felony in the Second Degree: 15 years; $10,000
*Felony in the Third Degree: 5 years; $5,000
*Misdemeanor in the First Degree: 1 year; $1,000
*Misdemeanor in the Second Degree: 60 days; $500
Types of Crimes
Assault
An assault is the intentional and unlawful threat, by word or act, of violence against a
victim in which the defendant has the ability to carry out the threat and the victim has a
well-founded fear that violence is imminent. Assault is a second degree misdemeanor.
Aggravated assault is assault with a deadly weapon in which the defendant did not have
an intent to kill but did have an intent to commit a felony. Aggravated assault is a third
degree felony.
Battery
Battery is the intentional touching or striking of a victim against his or her will causing
the victim harm. Battery is a first degree misdemeanor. Aggravated battery results when
the defendant intentionally or knowingly causes the victim great bodily harm,
permanently disables or disfigures the victim, uses a deadly weapon or knew (or should
have known) the victim was pregnant. Aggravated battery is a second degree felony.
Carjacking
Carjacking is the forcible or violent taking of a motor vehicle from a person or the owner
Homicide
Incest
Anyone who marries or has sexual intercourse with a person to whom he or she is related
by lineal consanguinity (child, parent, grandparent) or with a brother, sister, uncle, aunt,
nephew or niece is guilty of incest. Incest is a third degree felony.
Kidnapping
Robbery
Robbery is the forcible, violent or threatening taking of property from another with intent
to either permanently or temporarily deprive the person or owner of the property.
Robbery is a second degree felony. If in the course of a robbery the defendant carries a
firearm or other deadly weapon, the robbery is a first degree felony. Home invasion
Sexual Battery
Sexual battery is used to describe both forcible rape and statutory rape (sexual relations
with a minor). This includes oral, anal or vaginal penetration by, or union with, the sex
organ of another, or the anal or vaginal penetration by any other object. Depending on the
circumstances, sexual battery can be a capital felony, life felony or a first or second
degree felony. Anyone soliciting another to engage in an act that would constitute sexual
battery is guilty of a third degree felony.
Stalking
Any person who willfully, maliciously and repeatedly follows or harasses another person
is committing the crime of stalking, a first degree misdemeanor. Aggravated stalking
occurs when a stalker makes "a credible threat with the intent to place a person in
reasonable fear of death or bodily injury." Aggravated stalking is a third degree felony.
Theft
Florida has combined the crimes of larceny, embezzlement, false pretenses and receiving
stolen property into the category of theft. A person commits theft when he or she
knowingly obtains or uses the property of another with intent to either temporarily or
permanently deprive the other person of the property. Theft of property valued at
$100,000 or more is grand theft in the first degree and a first degree felony. Theft of
property valued at $20,000-100,000 is grand theft in the second degree and a second
degree felony. Theft of property valued at $300-20,000 is grand theft in the third degree
and a third degree felony. Theft of any other property is petit theft and a second degree
misdemeanor. (The category of larceny, the taking of property without consent and with
intent to steal, is still used for reporting purposes.)
DUI
Driving Under the Influence (DUI) ranks fourth behind larceny, narcotics and assault as
Florida's most common crime.
Definition
DUI can be committed in two ways. The first is driving or being in actual physical
control of a vehicle while under the influence of alcohol or certain prohibited substances
to the extent that a person's normal faculties are impaired. The second does not involve
impairment of normal faculties, but requires a person driving or in actual physical control
of a car to have a blood alcohol level of 0.08 percent or above. Actual physical control is
Penalties
Even if a person is not convicted of DUI, the penalties can be severe. Under Florida law,
anyone stopped by a law enforcement officer and given a breath test indicating a blood
alcohol level of more than 0.08 percent or anyone who refuses to take a breath, blood or
urine test faces, after thirty days of the arrest, an immediate administrative suspension of
his or her driver's license for six to eighteen months. A first offender must then wait thirty
to ninety days after the effective date of his or her license suspension in order to be
eligible for a "business purpose only license." A person may challenge the suspension,
but should it not be reversed, the offender must complete an educational program to
regain his or her license after the suspension period expires. The increased cost for
automobile insurance due to an alcohol-related suspension is often substantial.
A DUI conviction brings additional penalties. A first-time offender faces a fine of $250-
500, imprisonment of up to six months, suspension of his or her driver's license (even if
the license was already administratively suspended by the arresting police officer), fees
and costs (usually around $1,000), the impoundment of his or her vehicle for ten days,
probation for up to one year, a minimum of fifty hours of community service and a
permanent criminal misdemeanor conviction on his or her record. Moreover, the cost of
his or her automobile insurance will likely triple over the next three years and the
offender will have to face the social consequences of being a known DUI offender.
The penalties for subsequent DUI convictions are enhanced significantly. For example, a
second conviction within five years of the first conviction can mean a fine of $500-1,000,
Florida law provides that any driver operating a motor vehicle within the state who is
lawfully arrested for DUI must consent to a chemical or physical test for the purpose of
detecting alcohol or any other prohibited substance. The test may take the form of breath,
blood or urine analysis. If a person refuses to take a test, his or her license will be
administratively suspended for one year. If a person takes a test and is determined to have
driven or been in control of a vehicle with a blood alcohol level of more than 0.08
percent, his or her license will be administratively suspended for six to eighteen months,
depending on the circumstances. Remember that an administrative suspension of a
driver's license is separate from, and often in addition to, the penalties of a DUI
conviction.
Trial
A DUI trial can be as complex as any criminal case. Defense and prosecuting attorneys
frequently argue over constitutional issues such as unreasonable search and seizure,
probable cause for arrest, double jeopardy and a defendant's right to a speedy trial.
Scientific experts in the fields of serology, physics and chemistry are often asked to
testify. One to several dozen witnesses may be asked to take the witness stand and the
trial itself may last four to five days. Given the seriousness of the crime and the severity
of the punishment under Florida law, it is important for attorneys on both sides to be
adequately prepared to argue their cases.
Under the United States system of justice, all defendants are innocent until proven guilty.
To prove a defendant guilty of DUI, the prosecution must persuade a jury (or a judge)
that the defendant committed the crime "beyond a reasonable doubt." This standard of
proof is higher than that required in a civil trial. To find someone guilty beyond a
reasonable doubt is to believe that, in light of the evidence presented, there are no doubts
of the defendant's guilt based on reason. There may be fanciful or unlikely doubts, but no
reasonable doubts.
A defendant's attorney will closely scrutinize all elements of the case against his or her
Appeal
In 1995, more than 60,000 persons were given DUI citations in Floridathe equivalent of
about 166 persons per day. (9,000 more citations than in 1994.)
Although Florida has taken steps to reduce the number of intoxicated persons on the
highwaysFlorida laws are among the most severe in the countrythere were still 24,873
alcohol-related accidents in 1995 and 1,073 alcohol-related traffic deaths in 1995 (up
from 987 in 1994 and from 944 in 1993).
Florida law enforcement personnel are required to provide victims with information
regarding available victim service programs, including:
*The right to request restitution (see below)
*Crisis intervention services, support and bereavement counseling and community-based
victim treatment counseling
*The role of the victim in the criminal justice process, the legal rights of the victim and
the stages of the criminal justice process
*The availability of protection for the victim
*The availability of victim compensation (see below).
Restitution
Under Florida law, an offender may be required to make restitution in addition to any
criminal sentence. Restitution for bodily injury, lost income and funeral expenses can be
court ordered for the victim or the estate and next of kin of the victim if the victim died as
a result of the criminal offense.
Compensation
In recognition of the many innocent persons who suffer personal injury or death as a
result of adult or juvenile crime, Florida passed the Florida Crimes Compensation Act,
which provides government financial compensation to eligible victims. To be eligible to
receive compensation, a person must be a victim, an intervenor (someone who aids
another and suffers bodily injury or death as a result of trying to prevent a crime, lawfully
apprehending a suspected criminal or helping a victim of crime), a surviving spouse,
parent, child or other dependent.
The amount of an award is based on the actual needs of the person requesting assistance.
The maximum compensation award permitted is $10,000, including all costs or losses.
Emergency awards are also available. A claim for a financial award must be filed no later
than one year after the crime occurred or after the death of the victim or intervenor.
Resources
For more information on victims' compensation, write to the Office of the Attorney
General, Victims' Compensation, PL-01, The Capitol, Tallahassee, FL 32399-1050 or call
(904) 488-0848. The Attorney General's Office also maintains a toll-free hotline for
crime victims at (800) 226-6667.
The Florida Bar publishes If You Are Arrested in Florida and also Juvenile Arrest. To
obtain either of these pamphlets, call The Florida Bar at (904) 561-5834.
More information concerning drunk driving can be obtained by writing to Mothers
Against Drunk Driving (MADD) of Florida, 114 West Fifth Avenue, Tallahassee, FL
32303 or by calling (904) 681-0061 or the Victims' Hotline at (800) 772-6233.
The Florida Department of Highway Safety and Motor Vehicles also has information
relating to drunk driving that can be obtained by writing to the Florida Department of
Highway Safety and Motor Vehicles, Office of Management & Planning Services, Room
A430, Neil Kirkman Building, Tallahassee, FL 32399 or by calling (904) 488-3666.
Reviewed and edited by Leading Florida Attorney E. C. Deeno Kitchen at the law firm of
Kitchen Judkins Simpson & High.
This chapter was adapted, in part, from a paper prepared by Richard J. Essen at the law
firm of Essen, Essen, Susaneck, Canet & Lipson, P.A.
Florida
State of Florida
CONSTITUTION
Constitution
• Florida Constitution (Florida Legislature) Executive
Judicial
• Florida's Constitutions: The Documentary History Legislative
(Florida Constitution Revision Commission) includes the
Constitutions of 1838, 1861, 1865, 1868, 1885, and Legal Guides
1968, with amendments General Sources
EXECUTIVE
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