I Am Not Legally Allowed To Say I Am the Best Florida Lawyer

(If you’re short on time, skip to the last paragraph for a paradigm shifting experience)

Your freedom ends where it begins to impinge on my freedom. It’s one of the pilars of our legal system. You are free to do many, many things in America. But when the freedom our laws provide to you begin to impinge on the freedom our laws provide to me, that’s where you’re not free to act any more.

For example, drink as much alcohol as you want. You are free to do so if you’re older than 21. There is no legal limit to the amount of alcohol you can drink. That’s one of the freedoms our law provides to you.

However, the second you drink to much alcohol and get behind the wheel of a vehicle, you’re impinging on my freedoms, on my rights to a safe road and perhaps even life and the pursuit of happiness. So that’s where your freedom to drink ends.

Two recent articles in the New York Times have addressed the practice of using cell phones while driving and text messaging while driving. You don’t need studies to tell you that these practices are dangerous. You see it every day, but one study is particularly illuminating.

It found that in braking tests at 70 mph, drivers with a blood-alcohol level of .08 (legally drunk in Florida), stopped four feet further down the road than sober drivers while texting drivers stopped 70 further than they should have.

Texting and driving is significantly more dangerous than drinking and driving. I’m tired of moving over in my lane to avoid swerving texters. I’m tired of being held up in traffic by people on their phones going 10 mph below the speed limit because they’re distracted. It’s time to outlaw this practice and make our roads safer.

The problem, according to one of the NY Times pieces is that while everyone recognizes the danger, they don’t think they are part of the problem so they continue driving distractedly. The article cited studies showing that the same people who complained about phones distracting drivers rated themselves as being safe drivers even while using a phone in their car.

The absurdity of the public’s opinion on this is readily apparent, but sadly not at all surprising. Nearly everyone rates themselves as being of above average intelligence, but if everyone were above average, who would be below. We tend to see ourselves more favorably than we really are.

So that’s the most important problem – we don’t think we’re the problem so we’re unlikely to give up our supposed “right” to text while driving. But it’s not your right – you are not free to drive distracted because it impinges on my freedom.

Another problem as today’s Times points out is that our own government is covering up evidence that cell phones are dangerous instruments when used in a car. The National Highway Traffic Safety Administration caved in to Congressional pressure and withheld hundreds of pages of research and warnings about the use of phones by drivers.

The outrageous of this is so grandiose that I’m saving it for another blog post entirely. For now, I’m addressing problem one only. Get off your high horse. While you may be of above average intellignce, there’s no way you’re a safe driver while you’re on your cell phone and especially while you’re texting.

For years I was one of those people who thought I was different – safe. I would complain about drivers distracted by cell phones but I would still text and drive. Then in another post here I describe my transition away from texting and driving. What I found was surprising and holds far-reaching consequences for our perceptions and in particular, road rage. When I stopped texting and driving, I limited my texting to times when I was stopped at a red light. I found that on my 25-minute drive to and from work everyday, I was never stopped at a red light long enough to type an intelligible text. I could get one word at a red light, but never more than three. Try this sometime and it will change your perception of how much time you spend in traffic. It’s not much.

In an update to my previous post, a state judge ruled that an illiterate 13-year-old boy does not have the right to refuse chemotherapy, in part because he only has a “rudimentary understanding at best of the risks and benefits of chemotherapy. … he does not believe he is ill currently. The fact is that he is very ill currently.”

The judge did not remove Daniel from his parents’ custody but required that they proceed with medical evaluations to determine whether chemo is the best course of action

The judge said that if the boy’s prognosis remains good, the judge will require chemo, but if the cancer is too advanced, then he will not.

If the boy and his family refuse judge-ordered chemo, then the boy will be removed from his parents’ custody. The judge did not comment on what result would follow if the boy physicall fought the administration of the drug.

A Minnesota court case raises a fundamental question regarding the balance of individual liberty and governmental power. The case requires the presiding judge to decide whether a 13-year-old boy and his family can refuse chemotherapy treatment for his cancer or whether the government can force him to receive the treatment against his will.

Daniel Hauser has Hodgkin’s lymphoma and his doctors say chemotherapy will give him a 90 percent chance of survival. Without it, they say he will die.

However, Daniel and his parents want to treat his cancer with nutritional supplements and alternative treatments promoted by the Nemenhah Band,which advocates natural healing methods used by some Native Americans.

“This is about the right of a 13-year-old young man to be free from acts of assault on his body,” said the family’s attorney, Calvin Johnson.

Daniel was diagnosed with cancer this January. A week later, Daniel had to visit an emergency room due to a severe illness. At that time, the family consented to his first and only chemo treatment to date.

However, Daniel became depressed after his chemo treatment and decided he did not want to continue them.

When Daniel’s doctor notified child protection authorities, the county Daniel lives in brought charges against the family to require Daniel to submit to treatment.

What do you think readers?

Which party has a stronger interest in its rights? Does the boy and his family have a stronger interest in living (and dying) as they so choose or does the government have such a strong interest in this matter that it would be justified in forcing him to undergo and invasive, painful and lengthy treatment?

The Florida Bar is known as perhaps the most aggressive and strict bar association in the country in regards to lawyer advertising. Florida lawyers have sued the Bar several times for violating their First Amendment free speech rights.

In a welcome turn, the Bar has backed off of one of its numerous absurd advertising rules. Lawyers are now allowed to use the word “trust” in our advertising.

The Florida Bar prohibits lawyers from describing the quality of our services. For example, we can’t say we’re great lawyers. I’ve opined a little on that at this I Am Not Legally Allowed To Say I Am the Best Florida Lawyer Blog post.

For some time, the bar prohibited lawyers from using the word trust in advertisments because the bar considered that to describe the quality of a lawyers service. What they forgot is that lawyers are required to be trustworthy.

We are bound by our oath and by the bar’s code of legal ethics to maintain lawyer/client confidentiality. Let’s review the logic of this one: the bar requires us to be trustworthy and then forbids us from telling the public that we’re trustworthy.

I’m glad to see this rule taken off the books.

The Florida Supreme Court disbarred a Florida lawyer Thursday for letting a female client pay for legal services by having sex with him.

James Harvey Tipler had earlier pled guilty to solicitation to prostitution in his criminal case. Tipler agreed to let his client, an 18-year-old woman,  reduce her $2,300 fee for her assault case.

Every time he had sex with her, Tipler would reduce his fee $200. Every time she arranged for another girl to have sex with him, Tipler would reduce her fee by $400.

Tipler also altered evidence in the case against him and persuaded a witness to falsify testimony.

As if our reputation wasn’t already bad enough.

What type of behavior is child neglect and what is not? It’s a question of where we draw the line as a society.

Lack of supervision is one of the legal definitions of child neglect. However, we are left to decide for ourselves to what degree someone must fail to supervise a child before we say they broke the law.

WESH TV2.com is reporting that two children in Volusia County called 911 after their mother left them home alone.

The headline described the 6 and 4-year-old children as “panicked” but the 911 call transcript does not lead me to the same conclusion. It reveals the 6-year-old boy saying, “when we were freaked out, I told my sister, ‘You need to go to sleep and stay calm until tomorrow. I think she’s coming back.”

That seems pretty level-headed and calm to me. Is that headline another example of media sensationalism to drum up their audience? I digress.

The topic of this post is to discuss legal line drawing. The boy in this story called 911 at about 2 a.m. and said he was home alone with his 4-year-old sister.

The operator talked to the boy after asking him to turn on the TV to entertain his younger sister. Volusia County Sheriff’s Deputies arrived to supervise the children until their 23-year-old mother, Megan Hester, returned home 30 minutes later.

She said she went to a convenience store to fill up her car with gas and that when she left, the children were sleeping. Deputies reported that she did not seem drunk or otherwise intoxicated, the house was clean and the children were fine.

She was arrested and charged with felony child neglect.

In this post I will not take one side or the other but encourage you to comment on where you would draw the line between behavior that is imprudent versus behavior that is criminal. Where would you draw the line?

I’ve blogged about highway deaths before and I’ll surely blog about them again after this. They almost all remind me about the importance of under/uninsured motorist coverage. Most of the car accidents I read about are caused by someone driving very recklessly and those people don’t strike me as the kind who are likely to buy adequate insurance to protect you.

This most recent Daytona interstate accident occurred yesterday on I-95. Pamela Reid of Palm Coast actually caused two separate accidents. The first occurred on U.S. 1 and no one was hurt. That was just shortly before she caused the fatal I-95 crash.

Reid crossed the median on I-95 and crashed head-on into a 2003 Chevy. The wreck spun the car and caused it to roll, ejecting both occupants. Bruce Castle, 42, of Port Orange was killed and Trevor Luce, 34, of Palm Coast was critically injured. Reid was seriously injured.

An investigation is ongoing and charges are pending. Troopers believe Reid was under the influence of alcohol when the crashes occurred.

If Reid does not have insurance or does not have adequate insurance, I pray that Luce has under/uninsured motorist coverage or he will be looking at a hefty bill once he recovers. More people are forced into bankruptcy from medical bills than any other reason. The right insurance coverage can save you from the same fate.

I wish Luce a speedy recovery, and hope he has adequate insurance. If not, there may be one way he can recover from Reid. See my previous blog  Tragic Highway Death Sober Reminder of Importance of Underinsured Motorist Coverage to learn more.

Our legal system is designed to serve justice. That term can be nebulous and differs according to age, race and other demographics. But suffice it to say, our legal system is not perfect and does not administer justice in every case.

Decide for yourself if that is the situation in the following instance. Some will surely say yes, some will surely say no.  Let’s start with the simple rule. In civil proceedings, plaintiffs may not be compensated more than once for the same injury. This is regardless of whether multiple perpetrators caused the damage.

For example, one person is killed by two people. The death would not have occured but for the actions of BOTH people. That is, one perpetrator’s actions alone would not have been enough to cause death. The actions of both perpetrators were necessary to cause death. Therefore, both perpetratrors are culpable for the death.

Now what happens if the victim’s wife sues both perpetrators in civil court and receives $100,000 from Perp 1 to compensate them for the loss of her husband?  Well, depending on the facts of the case, the wife may not be able to find a lawyer willing to represent her in her case against Perp 2.

It all depends on the lawyer’s opinion of what kind of monetary value a jury will place on the husband’s life. If the lawyer thinks a jury will say the husband’s life was worth $1 million, then the lawyer will take the case. However, depending on the lawyer, the lower the value the jury will give to the husband’s life, the less likely any lawyer will agree to represent the wife.

This is because of the one compensation rule. The wife cannot be compensated more than once for the loss of her husband. This means that if the wife sued Perp 2, the case went to trial and a jury said that Perp 2 was liable for the husband’s death and that the husband’s life was worth $100,000, then the wife would not receive any money from Perp 2 and Perp 2 would go unpunished.

The Daytona Beach News-Journal reports that a 20-year-old man from Oviedo who was in Daytona for spring break was shot three times early Saturday morning and “will die from these injuries shortly.”

Gerold Lee Drosky was shot in the head, hand and groin around 4 a.m. at the Ocean Sands Hotel at 1024 N. Atlantic Ave. and remained on life support as late as Monday.

Police arrested James “Jimmy” Nicolas Costa, 27, of Orlando about an hour afterward. Costa attempted to evaid liability by removing some of his clothes, abandoning a .380 semiautomatic pistol outside the hotel by the beach approach, and hiding in the beach dunes about a block away.

Costa has a lengthy criminal record and the News-Journal reports that he came to Daytona to sell drugs to spring breakers.

One witness, Steve McKinnon, 22, of Ocala, said that Costa and Drosky were arguing when Costa pulled a gun on Drosky and shot him in the face. When Drosky fell to the floor, Costa shot him twice more.

My firm handled a case similar to this several years ago where a young man was shot and killed during spring break in a Burger King parking lot.

Florida law requires businesses to maintian reasonably safe premises. That includes providing adequate security and safety when unsafe conditions are foreseeable.

In our past case, violence had erupted at the Burger King previously on several occasions and management expected an increase in violence because of spring break. In that case, we were able to acheive a successful outcome for the family of the deceased man.

Depending on the specific events, the hotel may be liable in this case. This is certainly not to say that every business owner should be liable for the death of a customer. Businesses and landowners are only liable for such occurrences if the business is at fault.

For example, since businesses are required by law to maintain safe premises, if the hotel in this case knew that an armed drug dealer was one of their guests, then most reasonable people would agree that the hotel should have provided more security.

In cases where businesses have repeated rapes or violent attacks occurring on their property, then they have a duty to the public to provide security to protect their customers. Not only is it required by law, it’s just good business practices and plain common decency.

For those who follow the news, you’ve probably heard about the rash of professional baseball players who have either confessed, been caught or are under investigation for abusing steroids and other performance enhancing drugs. This sport-wide scandal has tarnished the reputation of the nation’s past-time and ruined the reputations of players.

For those caught up in the scandal, two approaches to dealing with it have emerged. Many players such as Barry Bonds and Roger Clemens have chosen to outright, adamantly, and repeatedly deny the allegations. Others, exemplified by Alex Rodriguez, have chosen to come clean so to speak and openly discuss their guilt.

I can only speak for myself, but Alex Rodriguez has saved his reputation in my mind by being a man about it, owning up to it and openly discussing his transgressions. I wish him nothing but the best and continued success in the future and I hope he can lead the way to a clean Major League Baseball.

On the other hand, I am completely offended by the likes of Barry Bonds and Roger Clemens who have not chosen the higher road and have attempted at every turn to use lame and unconvincing excuses for why they aren’t guilty. This tactic has turned the tide of public opinion against them. I for one do not wish to see them in the Hall of Fame.

This tactic of owning up to your transgressions and admitting your faults is a powerful influencer of opinion. Confession is one of the foundations of Catholicism for reason and lawyers have begun to catch on.

I participated in a mediation yesterday in a medical malpractice case where the hospital was quite clearly negligent. However, the Florida Legislature passed a law saying that if a medical malpractice victim is not married and does not have children under 25, then no one can bring a wrongful death claim on their behalf. The only legal claim available in that case is for the pain and suffering of the victim, not her relatives.

In our case, the victim only lived for about 20 days past the time she began suffering from the injury the hospital inflicted so the damages that her estate could collect would be limited to the dollar amount that a jury believed would properly represent her pain and suffering for that short period.

The hospital’s defense counsel shrewdly used this to their advantage and indicated that at trial, the hospital would admit negligence. The hospital would “pull an A-Rod.” Not only would this admission soften the jury’s opinion of the hospital, but it would have important legal ramifications as well.

By admitting fault, the hospital would avoid the ill will that Barry Bonds and Roger Clemens have incurred. Perhaps more importantly, that move also would mean that I could not present evidence at trial to prove that the hospital was negligent because that evidence would be rendered unnecessary by their admission.

If a jury could not hear all the horrible things that this hospital did to my client, the jury would be less likely to award a high amount of damages. All the jury would hear about would be the pain and suffering my client endured in those short 20 days that remained in her life.

It was a shrewd move and also one defense lawyers urge doctors to adopt. Studies show that if a doctor simply apologizes for injuries he inflicts on patients, then that doctor is significantly less likely to be sued by that patient.