How to Answer Interrogatories

How to Answer InterrogatoriesIf your case goes to litigation, you will need to answer interrogatories, usually within the first few months after the lawsuit is filed (others can be served later in the case). Interrogatories are written questions from opposing counsel — part of the discovery process — designed to give him basic information about you and your case. They must be answered in writing and under oath (notarized), and returned to opposing counsel within 30 days.

While different lawyers have different methods, it is fairly common for plaintiffs’ lawyers to mail their clients the defendant’s interrogatories with fairly limited instructions on how to answer them. This is because the lawyer plans to tweak and modify your answers before preparing them in final form for your signature. So, many times plaintiffs will receive them with only the vague instructions to “answer as best you can” and return them to the lawyer. To save you some time and anxiety when the time comes to answer interrogatories, here are some basic instructions on how to answer them.

The Four Basic Types of Interrogatories in a Personal Injury Case

The first set of interrogatories, called initial interrogatories, sent out in personal injury cases are fairly standardized. In my home state of Florida, the Florida Rules of Civil Procedure actually contain standard initial interrogatories which must be used by both the plaintiff and defendant in personal injury cases (with extra standard instructions for car accident and medical malpractice cases). Even if you’re not in a state which has such mandatory interrogatories, it’s a safe bet that the lawyers in your state have developed standard questions which run along similar lines. If, after reading the defense lawyer’s interrogatories, you’re wondering “why did he ask me that?”, see this article.

The four basic types of initial interrogatories (aside from the obvious ones, such as “State the name and address of the person answering these interrogatories”) are:

  1. List questions,
  2. Yes/No and if yes questions,
  3. Narrative questions, and
  4. Lawyer questions.

How you answer each question, and how thorough your answer should be, depends upon the type.

Claimsguide Promo

How to Answer Interrogatories — List Questions

List questions are interrogatories you usually must answer in the form of a list. Examples of these would be:

  • List the names, business addresses, dates of employment, and rates of pay regarding all employers, including self-employment, for whom you have worked in the past 10 years.
  • List all former names and when you were known by those names. State all addresses where you have lived for the past 10 years, the dates you lived at each address, your Social Security number, your date of birth, and, if you are or have ever been married, the name of your spouse or spouses.
  • List the names and business addresses of each physician who has treated or examined you, and each medical facility where you have received any treatment or examination for the injuries for which you seek damages in this case; and state as to each the date of treatment or examination and the injury or condition for which you were examined or treated.
  • List the names and business addresses of all other physicians, medical facilities, or other health care providers by whom or at which you have been examined or treated in the past 10 years; and state as to each the dates of examination or treatment and the condition or injury for which you were examined or treated.
  • List the names and addresses of all persons who are believed or known by you, your agents, or your attorneys to have any knowledge concerning any of the issues in this lawsuit; and specify the subject matter about which the witness has knowledge.

You should answer these as thoroughly as possible, as omitting items from these lists may prevent you from calling certain witnesses or introducing certain evidence later. When these questions ask for specific dates, such as the ones asking for dates of medical treatment, don’t waste time trying to list each specific date on which you saw your doctor (your medical records will provide this information). Rather, just list a range, such as “March 2010 – February 2011”. If you can’t narrow it down to the month, just list the years. Interrogatories such as these are not expected to be answered with specificity to the day, even though they seem like that’s what is being asked.

If you know that you are omitting things from the list — for example, if you can’t recall all of your treating doctors for the past 10 years and you don’t have any records to refresh your memory — note in your answer that there are others that you cannot recall and try to identify these items as best you can. In the case of doctors, you could say “I know that I saw another physician whose name I cannot recall at this time, despite my best efforts to research the matter. He was a family physician in Orlando, Florida that I saw for the flu in 2002.”

With respect to identifying “all people who have knowledge about your case”, be specific about their names and addresses and vague about the subject of their knowledge. For example, if someone was in the car with you at the time of the accident, you would identify that person specifically and state that he “witnessed the accident — was in my car at the time.” For people you expect to testify as to how the accident has affected you, such as your family members, identify them, state their relation to you and just list them as having “knowledge about how the accident affected my life.”

If you need to go through your records to answer these type of interrogatories completely, do it. Unlike depositions, in which you are only required to answer questions with the knowledge in your head, you are expected to answer interrogatories, especially list-type ones, using any and all resources within your control.

Settlement tip

How to Answer Interrogatories — Yes/No and if Yes Questions

“Yes/No and if yes” interrogatories should be fairly obvious. They ask a “Yes/No” question, with a follow-up question only if your answer to the first part is “yes”. Examples of these are:

  • Do you wear glasses, contact lenses, or hearing aids? If so, who prescribed them, when were they prescribed, when were your eyes or ears last examined, and what is the name and address of the examiner?
  • Have you ever been convicted of a crime, other than any juvenile adjudication, which under the law under which you were convicted was punishable by death or imprisonment in excess of 1 year, or that involved dishonesty or a false statement regardless of the punishment? If so, state as to each conviction the specific crime and the date and place of conviction.
  • Were you suffering from physical infirmity, disability, or sickness at the time of the incident described in the complaint? If so, what was the nature of the infirmity, disability, or sickness?
  • Did you consume any alcoholic beverages or take any drugs or medications within 12 hours before the time of the incident described in the complaint? If so, state the type and amount of alcoholic beverages, drugs, or medication which were consumed, and when and where you consumed them.
  • Were you charged with any violation of law (including any regulations or ordinances) arising out of the incident described in the complaint? If so, what was the nature of the charge; what plea or answer, if any, did you enter to the charge; what court or agency heard the charge; was any written report prepared by anyone regarding this charge, and, if so, what is the name and address of the person or entity that prepared the report; do you have a copy of the report; and was the testimony at any trial, hearing, or other proceeding on the charge recorded in any manner, and, if so, what is the name and address of the person who recorded the testimony.

For these questions, if your answer is “no,” that is all you need to write. If you answer “yes”, answer the rest of the question as thoroughly as possible, just as you would answer a list-type question.

How to Answer Interrogatories — Narrative Questions

Narrative questions are those which ask for answers in the form of a narrative description. These are the trickiest to answer, and should be answered as vaguely as possible. Examples of narrative questions are:

  • Describe in detail how the incident described in the complaint happened, including all actions taken by you to prevent the incident.
  • Describe in detail each act or omission on the part of any party to this lawsuit that you contend constituted negligence that was a contributing legal cause of the incident in question.
  • Describe each injury for which you are claiming damages in this case, specifying the part of your body that was injured, the nature of the injury, and, as to any injuries you contend are permanent, the effects on you that you claim are permanent.

Most plaintiffs tend to write a short story in response to these types of questions, using far more detail than they should. Instead, your goal should be to answer as briefly and vaguely as possible while still giving a complete answer. For example, when asked how the incident occurred, you could write “I was stopped at a red light when the defendant rear-ended my vehicle. There was nothing I could do to avoid the accident.” This second sentence should always be your response to “what could you have done to avoid the accident.” Don’t speculate as to what you could have done. That’s the defense attorney’s job. Don’t do it for him.

You don’t need to include irrelevant details such as where you were going or what you were doing at that particular intersection. You don’t need to mention how you looked up at the rear-view when you heard screeching tires. All of these details will be covered at your deposition, so there’s no need to lock yourself into them now (risking possible inconsistency at your deposition).

When asked what the defendant did wrong, once again be vague. “The defendant failed to maintain a proper lookout while operating his vehicle.” “The store failed to maintain a safe premises by allowing a liquid, about which it either knew or should have known, to remain on its floor and/or failing to warn customers about the liquid.” Don’t add any unneeded details.

When describing your injuries, be sure to include every affected body part — leaving out what seems like a minor injury could hurt your lawsuit if that injury becomes more serious later on during the case. Don’t try to list every specific medical diagnosis. Answer as a non-doctor would. “My lower back was injured, causing pain and intermittent numbness and weakness in my legs. I believe this injury to be permanent.”

If your own lawyer wants you to add more detail to your answers to narrative questions, he’ll let you know. Don’t make more work for yourself and your lawyer by starting with a long answer that he’ll just wind up shortening.

How to Answer Interrogatories — Lawyer Questions

There are some interrogatories that only your lawyer will be able to answer. Hopefully, your lawyer will point these out when he mails the interrogatories to you. Generally, these questions involve other settlements or experts, witnesses and evidence that will be used at trial. For example:

Claimsguide Promo
  • Do you intend to call any expert witnesses at the trial of this case? If so, state as to each such witness the name and business address of the witness, the witness‘s qualifications as an expert, the subject matter upon which the witness is expected to testify, the substance of the facts and opinions to which the witness is expected to testify, and a summary of the grounds for each opinion.
  • Have you made an agreement with anyone that would limit that party‘s liability to anyone for any of the damages sued upon in this case? If so, state the terms of the agreement and the parties to it.
  • List all witnesses that you intend to call at the trial in this matter and any documents or other tangible items you intend to introduce as evidence at the trial in this case.

Just leave these blank. Most of the time, these will be served too soon in the case to answer, and your lawyer will answer by saying that “no final decisions have been made as to [experts] [trial witnesses] [trial evidence] at this time.”

What Happens After You Return Your Draft Interrogatory Answers to Your Lawyer?

As an initial matter, your draft interrogatory answers should be returned to your lawyer as quickly as possible. He will need time to revise them into final form and have you come in to sign them before sending them to the defense lawyer within the 30-day deadline. Keep a copy of your draft answers, so you can compare them to the final answers your lawyer prepared.

When your lawyer calls you in to sign the final answers, take the time to read them thoroughly, comparing them to your draft answers. If there are any errors, make sure they are corrected. You are signing these under oath. Many plaintiffs have gotten in trouble because they never bothered to read interrogatory answers that were changed by their lawyers. Don’t assume that your lawyer’s office made no mistakes in the revision process.

If, after your interrogatory answers are provided to opposing counsel, you realize that you forgot to include something in your answers (or you made a mistake), tell your lawyer as soon as possible. It is easy for him to provide a supplemental answer correcting the error and it is best done as soon as possible. It looks far better if you voluntarily disclose the error or omission than it does if the defendant discovers it on his own.

As a final piece of advice, never, ever, intentionally lie on your interrogatory answers. If you are caught, the court can impose severe sanctions, up to and including the dismissal of your lawsuit.

This entry was posted in Discovery and tagged , , , , . Bookmark the permalink.

169 Responses to How to Answer Interrogatories

  1. SBF says:

    Thank you so much for such an informative website! What is the normal procedure concerning the defendant’s interrogatories, as far as allowing the plaintiff to view them? As a plaintiff, is it important that I read the defendant’s answers to the interrogatories? Should I request to see them?

    • fl_litig8r says:

      I’m glad you found the site helpful. I hate to ask, but if you’re a social networker, Facebook “likes” and Google +1s help a site gain more exposure (and possibly better search result rankings). There are buttons for these at the bottom of every article, so clicking them for the articles you found useful will help more people find them. You might find the site guide helpful in finding other articles that may interest you. Now on to your question. . .

      If you want to see the defendant’s interrogatory answers out of curiosity, your attorney shouldn’t have a problem with it. Frankly, in most personal injury cases, the defendant’s interrogatory answers aren’t nearly as useful as the plaintiff’s (you have lists of things to disclose, like medical providers, prior accidents and pre-existing conditions, which can’t be dodged with vague answers).

      Most questions that you’d think would produce interesting answers (like questions about how an accident happened) from a defendant really just produce vague, useless crap. Usually, plaintiff’s attorneys don’t press the matter because they provide similar “crap” answers for those types of questions (and both sides will likely be deposing each other anyway, where better answers can be obtained).

      Most plaintiffs don’t ever see the defendant’s interrogatory answers, or need to see them. But, if you’re curious it couldn’t hurt.

  2. SBF says:

    Thanks so much. I most certainly will pass when it comes to reading them.

  3. Judy Anderson says:

    But what if they lie on their answers and no body but you would know that it was a lie? If you do not read them, and confirm that they answered truthfully, how would you know?

    • fl_litig8r says:

      If you are concerned about that, then ask to see their answers. Of course, if you find out that they lied, what would you do about it? Your testimony won’t change.

      • JA says:

        True, I really have enjoyed ready your articles, it is so nice to hear a lawyer speaking the truth in every day words. I have a somewhat unrelated question about discovery, if you would, what can I do about a lawyer that settled my case for a lot less a few weeks before trial by jury without answering any of their discovery questions like we paid him to do?

        • fl_litig8r says:

          Well, technically you didn’t pay him to answer discovery. You paid him to recover money for you, which he did — contingency fees are not based on the amount of actual work performed by the lawyer. If you were unhappy with the amount offered, you shouldn’t have approved the settlement. You can’t go back now and say he should be paid less because you think he should have done more work.

  4. Zaza says:

    insurance adjuster requested a statement in presence of my lawyer before reaching a settlement. There is no lawsuit filed yet… My lawyer agrees… What that mean? … Thank you in advance!

    • fl_litig8r says:

      This is pretty common. An adjuster will ask you questions about your claim, similar to a deposition — though it won’t be as detailed or take nearly as long — to help him evaluate your claim. Sometimes this can be done over the phone via conference call or with you at your lawyer’s office. Otherwise, the adjuster will come in person to your lawyer’s office.

      Expect to be asked about how the accident happened, as well as about your medical treatment, your pain, and any lost wage claim. The statement will be tape recorded by the adjuster, and your lawyer can get a copy of the recording. Usually these things take a half hour or less.

  5. Zaza says:

    Thanks for your quick answer sir… After giving a statement to the adjuster, how long should they respond with an offer?… They already have all my medical bills and reports with a demand letter… Its not enough a demand letter with 30 days to evaluate and respond? … Why I have to give a statement and delay things when adjuster have all the proof of 100% liability? … I think my lawyer is being a bit generous with the insurance…

    • fl_litig8r says:

      First, proving liability is only part of winning your case, as I discuss in this article. Issues such as causation and damages still need to be resolved, and that can’t always be done merely by reviewing your current medical records. So, it’s not unreasonable for the insurer to want to take your statement to explore these issues, and your lawyer isn’t being a wimp by agreeing to it. If he didn’t agree to it, it’s unlikely the insurer would engage in serious settlement negotiations and you’d have to file a lawsuit. This would drag your case out longer and drive your costs up — so your lawyer is actually trying to speed things along by agreeing to the recorded statement.

      Some cases can be resolved on a simple 30 day demand. Unfortunately, most of the time that happens, it’s due to the tortfeasor having clearly inadequate policy limits, so the insurer just pays those limits. In cases where the tortfeasor has more than adequate coverage, a more detailed inquiry into the amount of damages is required, as both sides must ultimately agree to a specific amount, as opposed to both sides merely agreeing that case is worth “more than policy limits”. So, look on the bright side — it sounds like the other driver in your case has enough insurance to fairly compensate you. Be patient, and don’t doubt your lawyer so much.

  6. Alisha says:

    I am in a custody battle with my ex-husband. I got a continuing interrogatories submitted to me because I don’t have an attorney. I want to know if I can submit my own questions to be answered?

    • fl_litig8r says:

      I’m not a family law attorney, but I don’t see why you wouldn’t be able to serve your own interrogatories on him (or his attorney). I can’t help you as to the procedural formalities for doing so, but there’s a good chance that your state’s family law rules of procedure are available for free online, so you should reference the rules regarding interrogatories (and see how your husband’s were formatted) to get a start. Your family court rules may even contain form interrogatories (forms are often at the end of the rules) you can use.

      Of course, if you can’t afford a family lawyer, you could try your local legal aid office (consult the phone book or Google it), as they usually provide family law services to people who fall below a certain income level.

  7. Caffiene Man says:

    My friend in FL is the plantif in an auto accident. He felt he was under constant surveillance. He has maintained his legal residence but has been out of state staying with friends recouperating. He is being deposed by the attorney from the insurance company in a few days. Is he required to disclose anything about where he has been, what he has been doing, and disclose the address where he plans to return after the deposition, or can he maintain his legal residence as his answer?

    • fl_litig8r says:

      Technically, if they ask about where he’s been staying, he would be required to answer. The scope of discovery allows them to ask any question which might reasonably lead to admissible evidence. In this case, the question of “where he’s staying” might lead to admissible evidence because having that knowledge allows the defense to go and see his activities for themselves (through surveillance).

      If the depo were more than a few days away, he might be able to withhold this information by requesting a protective order from the court — arguing that the defendant has already hounded him out of his home through surveillance and that he should be able to keep his friends’ address secret to prevent them from continuing to harass him (and now his friends) though even more surveillance. I just don’t think there’s time enough to get this done now.

      If he refuses to answer without having a protective order in place, he could be subject to sanctions by the court, such as the cost of the deposition (perhaps even the attorney’s fees for the defense for the time needed to re-depose him) or, in severe cases where this isn’t his first discovery violation, his case could be dismissed.

  8. Mamaof3 says:

    In my civil case, the defendant(my ex-husband) has served me with the interragatories, which he is requesting a copy of my last 3 years taxes reguarding him wanting to prove that I make more than him so he is trying to lower his child support. My tax information has mine and my new husbands personal information on them like our ss#’s and retirement account info. This is something that I do not want my ex husband to have access to. I do not have a problem with him knowing my income, because I don’t even work and so I have no income, but I don’t want him to have any of my husbands personal info. I am a stay at home mom with 3 kiddos, which my ex is aware of, so I don’t know what he is trying to use our taxes to prove anyway. Is there anything that I can do?? And neither of us have a lawyer, so is this just something that I hand over to him? Thank you so much for your time.

    • fl_litig8r says:

      If this is a personal injury case, your tax returns are usually only discoverable if you are making a wage loss claim. Because you are a stay at home mom, I assume you are not. If you did inadvertently (by copying a form complaint that claimed lost wages), you’ll need to fix that by either amending your complaint to remove the wage loss claim, or possibly just by filing a notice with the court that you are withdrawing the wage loss claim that was inadvertently included in the complaint.

      Once the wage loss claim is gone (or if you never made one), you can answer the request for your tax information with an objection, stating that the information is irrelevant because you are not seeking lost wages.

      If this is not a personal injury case, then I’d need to know what kind of case it is to see if there is any way to avoid turning over your tax information.

  9. David Robert Darrah says:

    Hi, I got a civil case against a owner of a bar restruant. I answered his lawyer’s interrogatories. Then sent his ( the plaintive) interrogatories through his lawyer 40 days ago and no answer. I had to go pro se, also I live in NJ. should I file a motion with the court?

    • fl_litig8r says:

      You could file a motion under Rule 4:23-5(a)(1), after complying with Rule 1:6-2(c)‘s requirement to first confer with opposing counsel (or use the written notification option in that rule) in an attempt to resolve the issue prior to involving the court. Pay special attention to the affidavit requirement in Rule 4:23-5(a)(3), which must accompany your motion and state that you complied with Rule 1:6-2(c) before filing your motion.

      Generally speaking, courts prefer attorneys to work out late discovery issues on their own, and for the most part don’t like being involved in these issues. So, if you call the other lawyer and he asks you for anything up to an additional 30 days from the original deadline in which to respond to your interrogatories, you should agree to it (you may need your own extension some day), as long as you don’t absolutely need the answers before then to respond to a motion or prepare for an already-scheduled deposition. If you refuse to give him any extension, be prepared to explain why you didn’t to the court.

      I would expect that a phone call would be enough to get your answers within 30 days from the original deadline. If, for some reason, the other lawyer tells you that he isn’t planning to respond at all, file your motion immediately. If he says he needs more than 30 days, unless he gives a really good reason, I’d offer him just the 30 days and tell him that I’d be filing my motion after that expires.

      Note that the links I’ve included don’t link directly to the specific rules (they have multiple rules per page). Make sure you’re looking at the correct rule number on each page.

  10. John A. says:

    I filed a personal injury lawsuit with my local city court on October 1st of 2012. I noticed there is a “Status Conference” scheduled in February. What can I expect to occur at this conference? I have answered interragatories, but have yet to be deposed. I don’t if the defendant has been deposed yet. The injury and cause is pretty black and white.

    • fl_litig8r says:

      Most often these types of conferences are to set deadlines for discovery and disclosure of witnesses and exhibits. It seems a bit early in your case to do this (unless you’re in small claims court, which moves quickly), but if you’re pro se, it’s probably that the court wants to make sure that the case is moving along as it should.

      • John A. says:

        Thank you for the information. It is very appreciated!

      • John A. says:

        I am not representing myself. Apparently, this insurance company is notorious for delaying. My attorney is fairly confident they will settle prior to going to court, it’s just a matter of when.

  11. Davina Glaze says:

    Hello! I have a questions I am the plaintiff in a small claims court case. I was rear ended by the defendant who has lied about how the accident occurred. Long story short I am now taking his insurance company to small claims court. Their attorney has not sent me a Defendant’s Interrogatories to Plaintiff. The first half is questions about my employers, name, date of birth and so on. I understand these are under oat and I must sign that they were under oat. The second set is a more or less a list of evidence they would like to see. For example estimates to repair car, rental estimates and so on. My questions is do I have to provide those documents or can I object? It’s small claims court so I assumed everyone would see each other’s evidence on the court date. Thanks for any and all help!

    • fl_litig8r says:

      You need to provide them with the records requested (assuming they are all related to the case). Civil cases allow broad discovery to avoid having parties see each other’s evidence for the first time at trial. There shouldn’t be any “trials by ambush” in a civil case. The court wants each side to know what the other side intends to say and what evidence it will present before trial.

      Real small claims court is usually quite different than what you see on TV shows.

  12. imjustsaying says:


    I am the plaintiff in chicago. I am representing myself in a religious discrimination lawsuit and the judge wants discovery. I am a little nervous and dont know how to go about creating a discovery request or should I say, presenting the status report to the judge. Is there a website that provides samples of these? i have looked everywhere with no luck. Thank you for being!

    • fl_litig8r says:

      I’m not sure what the nature of your religious discrimination claim is, but if it’s anything other than employment discrimination, you’re probably going to have a hard time finding sample interrogatories or requests to produce online to guide you. There are lots of sites that have sample discovery requests in various cases. It’s just a matter of finding the ones that are closest to your type of case and then customizing them. You’ll notice some basic questions that are pretty consistent throughout most interrogatories, such as questions about who’s answering them and asking the person to identify all people who know about the case and all documents relevant to the case. Be sure to include those, and then ask questions about the specifics of your case (the more narrow the better) that you think will give you useful information.

      When you say “status report”, if you are in federal court, are you referring to the Report of Parties Planning Meeting, in which the parties agree to discovery deadlines and such? There are plenty of forms for those online to copy. If you are in state court, I’m not sure what type of status report you mean.

  13. whitmcj says:

    Hello! I’m the plaintiff in a medical malpractice case in Chicago. The case was filed in June 2010, I was deposed in May 2011, my witness in March 2012, and responsible doctors in the interim as well. Also, the discovery period lasted 28 months and was due to end January 2013. Most recently (5 months ago) an expert disclosure hearing was scheduled in my case; interrogatories are still being answered on my behalf (but not by me) and my next court date is a little over 3 weeks from now. I’m wondering how much longer can I expect the case to go on before settlement or trial, especially when I’ve been told that medical malpractice cases involving injuries such as mine are notoriously difficult to defend?

    • fl_litig8r says:

      If your discovery period was not extended past the original January 2013 deadline, then the case should be ready for mediation or trial at any time now. When you say that your next court date is 3 weeks from now, what do you mean? It could be a pre-trial conference, in which final motions and other procedural issues are hammered out before trial (meaning the trial would soon follow). Many courts require cases to go to mediation before trial (just to see if it can possibly be settled and clear the case from the docket). Do you know if mediation has been ordered in your case?

      Your lawyer will know whether mediation has been set (or will be) and if you’ve been given a final trial date. His paralegal probably knows this, too, in case he’s unavailable to answer your question when you call to ask him about it (hint hint).

  14. whitmcj says:

    I can’t tell you how thankful I am for your prompt response! I’ve stumbled upon your website a few times in the course of attempting to research my injury and any other “reply and answer” website sessions I’ve found elsewhere are years old. I don’t want to be a hassle to my attorney, but I can’t say that I’ve been kept abreast of my case’s happenings and I’ve sought the internet to satisfy my interests.

    To your questions: I’m relaying this information from Cook County’s Online Electronic Docket and I meant to say that the next Case Management Conference conference is scheduled for 3 weeks from now. I apologize for any confusion. Also, I don’t know if Discovery was continued nor if mediation has been ordered. I do know that the case was “Released for Trial Assignment” in October 2012 and “Remove(d) from Black Line” for 6 months the following month and that this upcoming Case meeting in May would signal the end of that 6 month period. I’ve read that mediation is required in some states and recommended or not required in others, and that Illinois fell vaguely somewhere in the middle.

    • fl_litig8r says:

      A case management conference could be a pre-trial conference (though normally they will be specifically designated as such on the docket) or just a status conference where the court ensures that the case is moving along and sets deadlines to help make that happen. I’m not sure what the “black line” entry refers to, as it’s not a standard term (at least in my state it isn’t).

      If you don’t want to bother your lawyer, you could call to speak specifically to the paralegal assigned to your case. He or she should know what the conference is about (whether it is pre-trial or not), whether you have a trial date and whether you’re set for mediation.

  15. Isabella says:

    I am a pro se plaintiff and I am suing my town, council members, town attorneys and police department for multiple civil rights violations against me including freedom of speech, robbing me of my right to vote on Town Charter Amendments, malicious prosecution, threat of arrest with out probable cause______.

    My worry is that my complaint and exhibits are mounting up to dozens of pages and I am afraid that the judge will be angry at me.

    Vast majority of the evidence I have against them are Public Documents which I requested through Florida Statute 119. They are also all certified by the Town Clerk.

    My questions are:

    1) Should I limit my Exhibits – if yes how do I assure that my case is not thrown out?

    2) I am very lucky to have videos of all of their violations against me- can I send them by a Flash Drive with my first complaint if – not how do I get them in?

    Thanking you in advance for any help you may give me.

    • fl_litig8r says:

      It is rare to attach exhibits to a Complaint in most civil cases not based on breach of contract (for breach of contract, a copy of the contract must be attached by rule). The documents and video you have are better saved to be used to oppose a motion for summary judgment and/or at trial. For purposes of a Motion to Dismiss, which your Complaint will most likely face, every fact you plead must be accepted as true by the court, so there’s really no advantage in attaching supporting documents. In fact, this can be a disadvantage, because if anything in those documents contradicts what you allege in the Complaint, it can be used by the court to either dismiss your complaint or grant summary judgment before you get the chance to do some real discovery.

      In short, I would focus on pleading just the facts necessary to support the legal claims you bring — make sure you know the elements for each claim so that you can plead the facts you need. This is what you need to survive a Motion to Dismiss and get into the discovery process. Attaching all your evidence to the Complaint will likely hurt you more than help you, and it is likely to annoy the judge. Whenever you need to file this evidence, to oppose a summary judgment motion or some other motion, you can always accomplish that by filing them with a “Notice of Filing Documents”, the title of which will usually state what you are filing them for, e.g., Notice of Filing Documents in Opposition to Defendant’s Motion for Summary Judgment. The notice itself is a fairly simply form that merely lists the documents you are filing (e.g., Minutes of X Town Council Meeting from 4/29/2013), coupled with the attached documents.

      Expect the court to really scrutinize your Complaint (they tend not to favor these kinds of suits, especially when brought by a pro se litigant), so be sure you have researched the elements of each claim you bring and that you allege sufficient facts against each defendant to support the claims that apply to them.

      • Isabella says:

        Thank you so much.

        So, if I am understand you what I really have to do is just tell my story to begin with.

        Is it good to mentioned dates and times?

        I know it will be difficult but I have to at least try.

        • fl_litig8r says:

          While you could mention dates, if it helps to support your claims, I’d always state them as “On or about X date. . .”, just to allow for the possibility that you could be slightly off (it’s safer to do this even if you’re sure you have the right date). I wouldn’t mention times unless it’s absolutely necessary.

          While part of the Complaint can be used to “tell a story” (often an early section which contains general allegations that are relevant to all individual counts will read as such), you need to always keep in mind that the goal is to plead sufficient facts to support each claim, not to tell a story. This is why I emphasized being sure of the elements of each claim you bring, so that you can plead facts to support those claims.

  16. Isabella says:

    You are worth your weight in gold- God bless you for helping me!

  17. Nell says:

    Hi, I was rear ended in an accident a couple of months ago. Minimal damage to my bumper but felt radiating pain immediately after the accident. Drove myself to the ER after police report was made. Been receiving chiro treatment since the accident but also consulted with ortho. Ortho ordered MRI and EMG due to continuing complaints of radiating pain. Tests showed cervical herniation with radiculopathy. I live in a NY a no fault state. My no fault carrier took pictures of my car and shortly afterwards I received a letter asking for a list of ALL doctors that have treated me in the last five years accompanied by a medical history form which requires me to list the doctors names, addresses and dates of treatment. They are threatening to delay paying my doctors until they receive this info. I was not being treated for a neck injury before this accident happened and am a healthy female otherwise so I am not afraid to provide this info. However, it seems like harassment and a trap by my insurance carrier. Who keeps a record of every doctor they have seen and all the dates? Does my no fault carrier have the right to this info? Even if I fill out the form there’s a possibility that I will have forgotten something. What should I do?

    • fl_litig8r says:

      Requesting 5 years worth of information about your prior medical history is pretty standard. Your insurer doesn’t need to take your word that you haven’t had any prior treatment for related injuries. So, they ask for information regarding all prior treatment to avoid having the claimant decide which medicals records they see and which they don’t. They are entitled to this information pursuant to your insurance contract, which has a “cooperation clause” requiring you to cooperate with them in the handling of your claim (which includes reasonable requests for information that could impact the claim).

      As to the completeness of the information, just do your best to provide them with everything you know. If there are doctor’s names you can’t remember, you could offer the type of doctor and city (the more specific the better), and what you went to him for instead. So, you could say “unknown dermatologist in Manhattan seen for a mole which turned out to be benign” or something to that effect. If you know that you are leaving out doctors and you can’t narrow down a specialty or what you saw them for, you could add a line indicating that you’ve provided all the names and information you have, but that you believe there may be others that you have forgotten.

      The form isn’t a memory test. Just answer honestly to the best of your ability. They won’t deny the claim over you forgetting about some doctor you saw once for the flu 5 years ago.

    • fl_litig8r says:

      Requesting 5 years worth of information about your prior medical history is pretty standard. Your insurer doesn’t need to take your word that you haven’t had any prior treatment for related injuries. So, they ask for information regarding all prior treatment to avoid having the claimant decide which medicals records they see and which they don’t. They are entitled to this information pursuant to your insurance contract, which has a “cooperation clause” requiring you to cooperate with them in the handling of your claim (which includes reasonable requests for information that could impact the claim).

      As to the completeness of the information, just do your best to provide them with everything you know. If there are doctors’ names you can’t remember, you could offer the type of doctor and city (the more specific the better), and what you went to him for instead. So, you could say “unknown dermatologist in Manhattan seen about 2 years ago for a mole which turned out to be benign” or something to that effect. If you know that you are leaving out doctors and you can’t narrow down a specialty or what you saw them for, you could add a line indicating that you’ve provided all the names and information you have, but that you believe there may be others that you have forgotten.

      The form isn’t a memory test. Just answer honestly to the best of your ability. They won’t deny the claim over you forgetting about some doctor you saw once for the flu 5 years ago.

  18. bernie says:

    What happens if interrogatories are late to the other side? Does it happen often?

    • fl_litig8r says:

      Well, it really depends on how late they are. Normally, it’s not a big deal unless these answers are needed for a specific purpose, like a deposition that is only days after the interrogatories were due. If you know they’re going to be late, you should call the other attorney and ask for an extension, which he’ll usually give without much thought (up to 30 days in most cases). If they’re already late, and you haven’t sent them yet, you should still call the other lawyer, apologize for them being late, and ask for a reasonable extension to give you enough time to submit them — then be sure to meet the new deadline. If they are late and you have already sent them, then it’s unlikely anything will happen — technically, the other lawyer could claim that your objections to any answers are invalid because they are late, but this rarely happens as courts routinely deny motions to strike objections for mere lateness.

      A worst case scenario is that the other attorney files a “Motion to Compel”, which is the way lawyers request that the court order you to produce the answers. Technically, if the motion is granted the lawyer can be awarded his attorneys fees for the time spent drafting and arguing the motion, but often courts won’t do that if it is the first time you’re late and it wasn’t intentional — normally, they’ll just set a new deadline of a week to ten days from the order for you to produce the answers or face real sanctions. Many jurisdictions have rules requiring an attorney who wants to file a Motion to Compel to contact the delinquent attorney before filing the motion, in an attempt to work out the issue of the late answers without involving the court. Courts really don’t like wasting time on Motions to Compel unless it is an extreme circumstance (e.g., months late, or the person is a repeat offender).

      Extensions to answer discovery are often needed and are usually freely given between lawyers. Late discovery answers are pretty common, too. The only discovery you should be absolutely sure to answer in a timely manner are Requests for Admissions. If those aren’t answered by the deadline, they are all deemed admitted by the late party — then it becomes the problem of the late party to ask the court to substitute its untimely denials for the presumed admissions.

  19. charlie says:

    I filed a civil lawsuit against my landlord and the condominium association for several different claims one of which is breach of fiduciary duty. my question is, since the condo association has a fiduciary relationship with the landlord and the landlord has a fiduciary relationship with me , does the condo association have a fiduciary relationship with me, a tenant?


    • fl_litig8r says:

      Some courts have recognized a very limited fiduciary duty between landlord and tenant, and only under limited circumstances, and some have said that no such duty (outside of the contract and state law) exists at all. A typical landlord/tenant agreement won’t give rise to any fiduciary duties, only contractual ones. I doubt that the fiduciary duties that the condo association owes towards its members would flow to the members’ tenants as well. However, if their breach of a fiduciary duty to the member caused him to breach his contract with you (e.g., they overcharged for certain common costs which were passed along to you you pursuant to your lease, causing your landlord to overcharge you in turn), you could sue him for the breach and he could bring a third-party indemnity claim against them. It’s possible that you could also bring a breach of contract action against them as a third-party beneficiary of the association agreement (I’m just guessing here), but I doubt that it would be possible to bring this claim as a breach of fiduciary duty. It’s difficult to discuss this in the abstract because “fiduciary duty” is a fairly vague term. While landlord/tenant law really isn’t my thing, and varies from state to state, it might help to know what the alleged breach of fiduciary duty is.

      • charlie says:

        the alleged breaches of fiduciary duties are founded on the acts of the condo association president. Specifically the condo association president invaded my apartment (Invasion of Privacy upon Intrusion) and falsely accused me of intentionally setting my apartment on fire (Slander/Libel per se).

        • fl_litig8r says:

          Neither of those acts sounds like it could form the basis for a breach of fiduciary duty claim. I think you’re trying to fit a square peg in a round hole. You already have tort remedies for each act. You may just alienate the judge by trying to claim that these are breaches of a fiduciary duty as well. Unless you’ve got specific precedent from your state in which someone successfully brought such a claim as a breach of fiduciary duty, I wouldn’t do it.

          • charlie says:

            I agree. I shall voluntarily dismiss the claim for breach of fiduciary duties. FYI in addition to the invasion of privacy and slander/libel claims i have alleged trespass, breach of peaceable and quiet enjoyment, breach of implied covenant of good faith and fair dealing, negligence and IIED/NEID. In your valued opinion to you recommend dropping any other claims ? Please know that I VERY MUCH RESPECT YOU FOR THIS SERVICE YOU PROVIDE. WHY DO YOU DO IT?

          • fl_litig8r says:

            Research whether your jurisdiction even allows a negligent infliction of emotional distress claim. Many don’t, or have some pretty specific requirements (such as witnessing a severe injury to a loved one and/or suffering actual physical injury from the severity of the distress, like a heart attack). The other claims seem appropriate. If the condo association tried to get you booted from your lease, you may want to consider adding a claim for tortious interference with a business relationship.

            As far as why I run this website, why not? I’ve gotten so much help over the years from the Internet with computer issues, home and auto repairs, why not contribute what I know? Law firm websites tend to not offer information about matters which affect people who already have lawyers or people representing themselves (because their purpose is to attract clients), so I decided to fill what I saw was a need.

  20. charlie says:

    hi fl_litig8r,

    Speaking for myself you have given back by helping me greatly. Yes a claim for NIED is permitted. In Florida, a claim for NEID has limited exceptions to skirt the impact rule supporting a NIED claim. See Rowell v. Holt, 850 So.2d 474(Fla.2003) where the court said, “There is no cognizable action for simple negligence resulting in psychological trauma alone, unless the case fits within one of the three (3) narrow exceptions to the impact rule, (1) intentional infliction of emotional distress, (2) defamation and (3) invasion of privacy. As stated before I am seeking claims for defamation and invasion of privacy.

    Previously I had considered claiming tortious interference with a business relationship but since the condo association tried, but failed, I was not damaged. That is why I did not include the claim for tortious interference with a business relationship. If I have overlooked damages re the claim please advise.


    • fl_litig8r says:

      You’re misinterpreting that case. It doesn’t allow for a separate cause of action for negligent infliction of emotional distress when you have a claim for defamation, intentional infliction of emotional distress or invasion of privacy. It says that the impact rule doesn’t preclude emotional distress damages for those types of claims. It discusses the fact that you can recover emotional distress damages in certain tort claims (in this case, these are intentional torts which wouldn’t be subject to the impact rule). It doesn’t provide for a separate claim for negligent infliction of emotional distress should you also happen to bring one of these claims. It merely recognizes that you can recover noneconomic damages in certain types of tort claims (such as defamation and invasion of privacy) that do not involve an impact. In Rowell itself, a separate claim for negligent infliction of emotional distress was not brought. It was just a claim for legal malpractice, in which the court stated that the impact rule didn’t preclude noneconomic damages. So, while Rowell supports your ability to recover noneconomic damages via your defamation, invasion of privacy and intentional infliction claims, it doesn’t allow a separate claim to be brought for negligent infliction of emotional distress just because you are bringing the above-referenced claims.

      I strongly suggest dropping the negligent infliction count, because it will be dismissed.

  21. charlie says:

    hi fl_litig8r,

    I will drop the NIED claim. FYI, prior to the complained of actions supporting claims for defamation and invasion of privacy, the defendants possessed the knowledge I was (and still am) vulnerable and fragile due to mental health disease. Due to my mental health status in the year 2000 Social Security ruled I am disabled. That ruling is still in effect.

    What about the matter of claiming tortious interference with a business relationship. Since the condo association tried but failed to prevent me from residing in the building was I damaged? I didn’t think that is why I did not include the claim for tortious interference with a business relationship. If I have overlooked any damages from their intentions to prevent me from residing in the building please advise.
    I too feel good helping others. If there is any way I can be of help to you I am available.

    • fl_litig8r says:

      You were right about not including the tortious interference claim if they didn’t actually cause you to lose your lease. No damages = no claim. There’s no claim for attempted tortious interference. Without the added element of an actual business relationship damaged, a tortious interference claim is basically a defamation claim anyway, which you already brought.

  22. charlie says:

    hi fl_litig8r,

    Does Florida civil law permit a claim for harassment?

  23. charlie says:

    hi fl_litig8r ,

    does a pro-se litigant have any attorney/client privileges and if so what are they?

    • fl_litig8r says:

      You have the work product privilege, which stems from the attorney/client privilege, but that topic is way too complicated and fact-sensitive to give you a detailed description of how it works. Generally, work product is anything you create in anticipation of litigation, and is broken down into two categories: fact work product and opinion work product. Fact work product is something you create which doesn’t reflect your thoughts and strategies about the case, such as photographs of the damage to your condo or a recording of a witness interview. Opinion work product would include any legal research, notes on trial strategy, potential questions for witnesses, and notes or annotations made on records which reveal your thoughts on how they might play into the case. Obviously, there are many other possible items that could be work product — these are just a few examples.

      Opinion work product is generally never discoverable — I say generally because there can be exceptions, such as if you decide to make a blow-up of a document with extra annotations as a demonstrative aid to be used in trial.

      Fact work product is discoverable if it is relevant to the case and the other side cannot reasonably obtain something comparable on its own. For example, if you took photos of your condo right after it was damaged, and subsequent repairs make it impossible for the other side to obtain its own photos of the damage, the court will likely order that they are discoverable. With respect to a recording of a witness statement, if that witness is still available for questioning and hasn’t suffered memory loss, the court would likely rule that your recording is not discoverable and the other side must perform its own witness interview. This can get complicated because witnesses are typically allowed to obtain a copy of any recording of their own statement, so in theory a witness could require you to give him a copy and then turn around and give it to the other side. If you didn’t make a recording, but only took notes from a witness interview, that would be opinion work product, because it contains your mental impressions of what the witness said and is not a simple transcript.

      Work product is a very complicated subject, with lots of issues about what needs to be disclosed and when. Typically, when you assert the privilege in response to a discovery request, you must still describe the item withheld sufficiently to allow the other side to determine whether the privilege actually applies. For example, if the other side requests copies of all photos and you want to assert the privilege, you’d object to the request based on the work product privilege and then say something like “15 photos of the apartment taken by plaintiff on 11/20/13 withheld”. Many lawyers don’t provide a “privilege log” of withheld items, even though the rule technically requires it, so you could just play dumb and assert the privilege without listing the withheld items and see if the other side asks for a log.

      Things that are work product, but that you plan on using as exhibits or demonstrative aids at trial, will need to be provided to the other side, but only after the decision to use them has been made (assuming no other reason to disclose them exists). This is why discovery answers regarding witnesses or exhibits made early in the case will usually be qualified with, or state in total that “No final decisions have been made as to what [exhibits] [witnesses] will be used at trial at this time.” This allows you to keep certain work product hidden until the court orders you to prepare final witness and exhibit lists. In other words, don’t make any final decisions as to what exhibits you plan to use until the court orders you to (even if you really know what you plan to use).

  24. charlie says:

    hi fl_litig8r ,

    Thanks for the very informative response. I have been busy responding to motions to dismiss, interrogatories and requests for production. This is my second lawsuit involving the same parties. The first one settled in which I received $20,000.00. The defendants breached the settlement. Since the settlement did not limit legal remedies i filed a new case reinstating the original claims and adding new ones. Your responses have been especially helpful.Thanks again !

  25. Edwin says:

    For an interrogatory: “Have you ever received a ticket or citation for a traffic offense? If so, please state the type of ticket and date of each ticket.” There was one ticket/citation for a traffic offense about 13 years ago. In my state, tickets/citations fall off a person’s driving record after 10 years. If there a legal way to avoid saying that I received the ticket? I ask because in so many model interrogatories, this question includes a timeframe like within the past 10 (or even 5) years. I can’t see why someone asking would limit the timeframe, unless they had to. My state allows giving business records to answer an interrogatory, but my driving record from my state wouldn’t be a “business” record.

    • fl_litig8r says:

      You should answer honestly. The scope of discovery is much broader than the scope of admissibility, so parties are entitled to request plenty of information that will never be admissible in court. Unless you do something to make this prior citation admissible, as discussed in this article, the defendant won’t be able to use it at trial. Lying on an interrogatory answer, on the other hand, can definitely hurt you.

      With respect to the 10 year limitation you are used to seeing, this is done for a very specific reason. Most prior bad acts are not admissible at all against you at trial, but evidence of felonies and misdemeanors involving dishonesty are admissible regardless of whether they are related in any way to the incident at issue. This evidence is used for impeachment under the theory that a jury is allowed to consider people with such records to be generally less honest than people without them. The 10 year limitation is imposed in most jurisdictions (it does vary) because it is believed that if a person has gone that long without committing such a crime, their credibility has been restored and the jury should no longer be allowed to hear about older crimes. There is even variability as to when the 10 years begins to run. In some jurisdictions, it runs from the date of the crime, but in many it runs from the end of the sentence for the crime — so if someone committed a crime 13 years ago, but went to prison for 5 years, that conviction would still be admissible in many places. A lot of lawyers don’t know that and typically only ask for convictions that happened within the last 10 years. They could ask for every conviction through discovery, under the same theory as the lawyer asking you for your citation history is using (that you may screw up and say something at trial making that evidence admissible), but many are only interested in the information that is absolutely admissible.

      So, while you could object to the request on the grounds of relevance, I would expect a judge to require you to answer it under the theory that while such evidence is generally inadmissible, it may become admissible through your own testimony later on. I would definitely not lie in the interrogatory answer, though. As long as you don’t say something to make the citation history admissible (and after reading this article, you’ll know what not to say — it’s the same article I cite above, and you really should read it), that information can’t hurt your case. A lie could result in some serious sanctions being leveled against you, up to and including the possible dismissal of your case. The other lawyer may be trying to bait you into doing this, so don’t fall for it.

  26. charlie says:

    Hi fl_litig8r ,

    I have finished the interrogatories and found your article re “How to answer interrogatories” extremely helpful. Now I am responding to defendants request to produce. Will you be so very kind and helpful to write back with “How to respond to production requests”?
    As always THANKS!!!

    • fl_litig8r says:

      I had thought about writing such an article when I wrote this one, but there’s a reason I didn’t. Basically, Requests to Produce are pretty straightforward and don’t require much interpretation. If you have the items requested, produce them. If you don’t, just respond that you don’t have them. They can’t ask you to create new documents or other items, or force you to request items from a third party if you don’t already have them. For example, if they ask for photographs and you haven’t taken any, you don’t need to go out and take some just to give to them. If they ask for medical records and you don’t have them (or only have some), you don’t have to ask for them from your doctor just to send to them. Sometimes the court will require that you execute a release for certain documents (like tax returns) that would impose an undue burden for the defendant to subpoena — often, state courts will require release forms for out-of-state records because issuing an out-of-state subpoena is a bigger ordeal than you might think (not true in federal court, but definitely true in state court). However, you can wait to see if the court orders it and just respond to a request for such records that aren’t currently in your possession by saying you don’t have them.

      If you’re asking about possible objections, notice that I didn’t even address that in this article about interrogatories. That’s primarily because I gear the site toward helping people who have lawyers (but don’t get enough information from them) — so their lawyers will deal with any applicable objections. It’s also because this is a very complicated and subjective issue. Whether to object is largely a judgment call based on experience, especially when it comes to things like relevance (this rarely applies due to the broad scope of discovery) or whether a request is overly broad and/or burdensome. Work product is also very complicated and hard to boil down to generalizations. Objections largely depend on the issues and facts specific to each case and the specific framing of the request — broad descriptions won’t tell you whether you should or shouldn’t object, so I thought it would be more confusing to give a half-assed explanation than none at all. If I recommend objecting to certain requests, and someone’s lawyer doesn’t, there may be a very good reason for this which is not contemplated by my suggestion. I’d be making waves where there don’t need to be any.

      Know that if you do object, most jurisdictions require opposing counsel to confer with you and try to convince to produce the items prior to filing a motion to compel, so you have a chance to reconsider before such a motion (which, if granted, could result in the other side being awarded its attorney’s fees for the time spent pursuing the motion) is filed. Even after such a motion is filed, you can usually get yourself off the hook by producing the requested items before a hearing on the motion is held (though opposing counsel may be a bit more hostile towards a pro se litigant and still try to pursue fees just to make you want to quit). In short, when it comes to objections, pick your battles carefully. If you want to object to a request as being overly broad, it may be wise to still provide records from a more reasonable time frame in your response, along with the objection to everything outside that time frame. That way, the other side may not consider pursuing the other records as being worth the time and may just let it drop. If you produce nothing and just object, they may feel it necessary to file a motion to compel.

      I touch on the subject of the scope of discovery with respect to relevance in this article, so that may be worth reading to see how some requests may not be as objectionable as they initially appear. Although it is geared toward personal injury cases, it should still be somewhat illuminating as to how documents and items which are not themselves admissible may be discoverable because they have the potential to lead to admissible evidence.

  27. Edwin says:

    This question involves an interrogatory, “If any photographs were taken at the scene of the accident referred to in the complaint, or any objects or persons involved therein, state…” There were no photographs taken immediately after the accident — only 3 days, 11 days, and 3 years later. I would prefer the first time they see my photographs to be at deposition, so the deponent would give their reactions to the photographs, without discussing with their attorney. (Although I am certainly going to produce them if I don’t have a valid reason not to!) We took these photographs only in anticipation of our lawsuit. I’m wondering if I can claim work product privilege. (We filed in pro per, and our state recognizes pro per work product.) I’m also wondering if the phrasing “at the scene of the accident” can be reasonably interpreted to strictly mean when the accident “was still there”. (i.e. Photographs that show locations of vehicles, etc.) The place the accident occurred looks substantially the same today as when the accident occurred. (They couldn’t take their own photographs showing how the location looked at the time of the accident, but they could take their own photographs that would be substantially the same.)

    • fl_litig8r says:

      You could assert the work product privilege, but know that there is a difference between “fact” work product and “opinion” work product. Photographs are going to be considered “fact” work product, meaning that the other attorney can ask the court to require you to produce the photos upon a showing that he cannot obtain the information contained therein by other means on his own. While the photos from 3 years after the accident probably wouldn’t qualify for this exception, because he can likely go out and take photos of his own now that are comparable to yours, the ones from 3 days after and 11 days after might qualify. This assumes that the photos from 3/11 days after show something about the scene which you can no longer see now — for example, if they show skid marks or some features of the scene which have since changed and are relevant to the accident (like vegetation growth), he may be able to show that he has no other way of getting the information other than getting your photos. This may require the court to conduct an in camera inspection of the photos to determine whether they show features no longer visible to a photographer today.

      It may be worth it to assert the privilege just to cause the delay in him getting the photos while he asks the court to require their production. In the time you wait for the court to rule on that issue, you may be able to squeeze in the deposition of the defendant. You should probably bring copies of the photos for the defendant to the depo, because once you show them to the other side, the privilege is waived so you might as well just turn them over.

      You’d still need to identify the photos in response to the interrogatory, even if you assert the privilege. You could respond be saying “10 photographs of the accident scene taken by plaintiff on (date), 15 photographs of the accident scene taken by plaintiff on (date), etc.”. Interrogatories don’t require you to produce anything, so you don’t need to assert the privilege in response to them. If he served a request to produce concurrently with the interrogatories asking for copies of everything you identified in the interrogatory responses, you’d assert the privilege as to the photos in response to that.

      Because the interrogatory doesn’t seem to limit itself to asking about photos taken immediately after the accident, I don’t think you can use the “they weren’t taken immediately after the accident” excuse to avoid identifying them. You’re better off pursuing the work product route and trying to take the defendant’s deposition before that issue gets resolved by the court.

  28. islandgirl says:

    Thanks for the very informative website, I have spent several days reading it and it is very helpful. So helpful that I have come to the conclusion that maybe my lawyer doesn’t want to be my lawyer either. I haven’t heard from him since the day I hired him in February of this year, although my last and (in my mind) final surgery and follow up was in the beginning of October of this year. Would this be a good time to call him and ask what’s going on?

    • fl_litig8r says:

      Well, in fairness to your lawyer, he’s probably been quiet because there’s usually not a whole lot for him to do before you reach MMI, aside from periodically updating your medical records. It would be a good time to call him just to give him a heads up that it seems you’re at MMI, in case that’s not apparent from your doctor’s records. That will let him know to get started on the settlement demand and get the ball rolling. After that, you should receive more regular updates, as there will actually be something to report to you.

  29. charlie says:


    Hi hope all is well with you. I filed an amended complaint. there were 8 defendants. I then filed notice to voluntarily dismiss 2 defendants. The clerks office mistakenly entered in the docket that I voluntarily dismissed the case. Its Friday afternoon and i cant get the clerks office to answer my calls. monday morning what should I do !

    • fl_litig8r says:

      You could try contacting the judicial assistant (JA) of the judge assigned to the case and see if she (or he) can fix the error. While technically there is no such thing in Florida as a “partial” voluntary dismissal of a case (such a motion is supposed to dismiss the whole case, not just parts), realistically lawyers use such a motion to drop individual claims or defendants (as you’re trying to do) all the time. You might have to file a motion to undo the damage, but hopefully it will just take a phone call or two. Perhaps you’ll have an easier time getting a hold of the JA than the clerk — the numbers for the judge’s office should be on the clerk’s website.

  30. charlie says:

    Hi fl_litig8r,

    Please reassure me whether thru the JA, the clerk, or by motion the “DAMAGE” can be reversed. If by motion how would you draft the title, Motion to Correct Clerical Error ?


    • fl_litig8r says:

      This really shouldn’t be a big deal. While technically a Notice of Voluntary Dismissal is only supposed to be used to dismiss an entire case, lawyers do regularly use it to dismiss individual claims or defendants — by the way, the better practice would be to file an Amended Complaint, simply omitting the unwanted claims/defendants. Hopefully this is just a matter of the clerk reading the caption of the notice without reading the body and mistakenly thinking that you wanted the whole case dismissed, and not someone being a rule nazi punishing you for trying to eliminate select claims using the wrong procedure.

      If you need to file a motion, I’d be more descriptive in the caption — something like Motion to Reopen Case as to Claims Not Specifically Dismissed in Plaintiff’s Notice of Voluntary Dismissal. Then, in the body, explain that the clear intention of the Notice was only to dismiss the claims against two defendants, and not the entire case, regardless of the vehicle used to accomplish that goal. Don’t get all “blame-y” on the clerk, because technically the clerk is right. Take the high road and apologize for perhaps using the wrong rule of procedure to accomplish what you intended, but note that no prejudice will result to the remaining defendants to allow your claims to proceed against them and to allow the dismissal of the entire case to stand when it was clearly not what you intended would be placing form over substance, which our rules of civil procedure are not designed to do. This isn’t a game of “gotcha”, where an honest error should result in dismissal of an entire case.

      I’m pretty confident that the JA and/or clerk will let you off the hook on this. Just remember to be polite and humble in making your request, and don’t blame the clerk for being stupid for not reading your motion. As I said, technically this is your mistake, not the clerk’s — so act like it when you ask it to be fixed and you should receive more sympathy and help.

  31. charlie says:

    pursuant to rule 1.350 that states “that are in the possession, custody, or control of the party to whom the request is directed” when asking for medical records, that I don’t have, is it my responsibility to contact those who are in possession, custody, or control of the medical records or can I sign a release for the defendants to get the medical records. Since I am indigent when their are costs involved to get production, i.e. tax returns, what happens if I don’t have the funds to pay for them?

    production request or in the case of medical info can

    • fl_litig8r says:

      You don’t need to produce records that you don’t have, or specifically obtain records maintained by others (like your doctors or the IRS) to answer a request to produce. With respect to medical records for in-state doctors, you don’t even need to provide a release, as those records can be subpoenaed by the defendant. For out-of-state doctors, the court will usually require the execution of a release, because the process for obtaining a subpoena valid in another state in a state court action (as opposed to federal court) is particularly onerous. It would likely also require a release for tax returns, again due to the issue of obtaining a foreign subpoena. If the defendant hasn’t asked for a release, don’t offer to provide one — but if they do ask for a release for out-of-state records, I would provide it, with the caveat that I would modify the release to be good for a single use only (not “good for a year” or “for the duration of the lawsuit”).

      The rule’s reference to providing records in your “possession, custody or control”, as opposed to just your “possession”, is largely to avoid the problem of parties handing their records off to someone else to hold to avoid producing them. It isn’t intended to require parties to create new records or obtain records they never had.

  32. Edwin says:

    “Describe all conditions for which your personal physician treated you for, in the past 10 years, and the dates.” Can I just give information about who my physician is, and tell them to subpoena the medical records? They’re going to get those anyway, it’s an injury case. I don’t have records of all conditions for 10 years. Seems overly burdensome to have to list everything, especially since I may miss something on the record.

    “Please state name/address of all pharmacies used and prescriptions taken in past 10 years, including name of which doctor prescribed.” Can I just tell them which pharmacies, and tell them to subpoena the records from them? I don’t have records of everything I’ve taken for 10 years. Seems overly burdensome to have to list everything including antibiotics…

    PS I’ve used a chain of pharmacies, at quite a few locations that I could never remember. Some while on vacation. Can I list the chain name, their corporate headquarters address, and list the primary locations I’ve used, but say there are others?

    • fl_litig8r says:

      I combined your questions for ease of answering. With respect to your first question, while identifying your doctors is the most important part of the answer, you can’t just tell them to subpoena the records to get the details. Do your best to identify any major treatments (particularly for injuries) — you don’t need to know the specific dates (you can be pretty vague about that) — and then state that there may have been other visits for minor temporary conditions which you have forgotten. Just show a good faith effort to give them the highlights of your medical history.

      With respect to your pharmacy records, again it is most important to identify all the pharmacies — specific stores should be identified, as they maintain individual records and you can’t just subpoena “Walgreens” in general to get these records. They need to know each individual pharmacy. If you’re not sure you’ve listed them all, just state that you have answered to the best of your recollection and that there may be others you’ve forgotten. For specific prescriptions, again, identifying any significant medications you have taken is the heart of the question. Anything that reflects a chronic condition should be specifically listed, as well as anything given for pain. You can then generally state that there may have been other prescriptions for antibiotics or other minor ailments that you have forgotten. If you can’t recall the names of specific drugs taken, just identify the type (pain, anti-inflammatory, etc.) and do your best on the timeframe they were prescribed — at least try to narrow it down to the year(s) taken. As with the doctor question, just show a good faith effort to be responsive to this part of the question.

  33. charlie says:

    Hi fl_litig8r,

    I receive conflicting answers from attorneys to this question. In my original lawsuit I filed claims for invasion of privacy, trespass, breach of quiet enjoyment, and for IIED. We mediated and reached a settlement whereas i received financial compensation for my injuries. the court dismissed the case with prejudice. the settlement had material provisions which the defendants breached. the settlement did not contemplate legal remedies in the event of a material breach. I filed a new lawsuit for breach of settlement and the reinstatement of the original claims invasion of privacy, trespass, breach of quiet enjoyment, and for IIED. The question is may the original claims be raised again or are they res judicata?

    • fl_litig8r says:

      You really can’t pursue both an action to enforce the settlement agreement (which is really a breach of contract claim, now that the underlying action has been dismissed) and the underlying claims themselves at the same time, because pursuing the underlying claims would require a rescission of the settlement agreement — which would preclude a claim for breach of the same agreement. It may be possible to pursue a rescission claim and breach of contract claim if they are pled in the alternative — you ask for rescission, but in the alternative if rescission is not found to be appropriate, you ask for breach of contract remedies. Of course, if you ask for rescission, know that a precondition to most rescission claims is the repayment of any money you received as part of the original contract. For example, an insurer trying to rescind a policy must repay all the premiums collected on the policy prior to asking the court for rescission. In your case, that would mean paying the settlement money (if any) back.

      Whether rescission will be granted for a breach of a settlement agreement is a very fact-specific inquiry. I imagine that the terms you believe they breached are not your run-of-the-mill non-payment, which could easily be remedied by a breach of contract claim. This raises the issue of whether the breach will be considered by the court (I know you think it is, but a judge might not) to be material enough to warrant rescission, as most settlements revolve around the money aspect.

      If you successfully rescind the settlement agreement, you should not have a problem with the judgment of dismissal being vacated. Of course, as you might imagine, this issue doesn’t come up very often so the court will likely be guided more by principles of equity than clear-cut caselaw. For this reason (and the whole “you need to pay the money back first” issue), unless you truly cannot be compensated through the breach of contract claim (which would allow both monetary and equitable remedies, such as specific performance), I’d be reluctant to push for rescission and reinstatement of the original claims.

    • charlie says:

      Hi fl_litig8r,

      This is a follow up to an email I sent you on December 20, 2013.
      Due to a voluntary dismissal (case was successfully mediated) the predecessor court dismissed the case with prejudice and did NOT retain subject matter jurisdiction for any reason whatsoever ending its term. Pursuant to breaches of settlement I filed a new case. Notwithstanding,the undisputed fact the predecessor court dismissed the case with prejudice and did NOT retain subject matter jurisdiction ending its term, the successor court ruled only the predecessor court has subject matter jurisdiction over pre-settlement claims. Opposing counsel is on the record stating, ” The order does not retain jurisdiction for any purpose.” My research tells me, once a court’s term ends, that’s it, the court has relinquished authority over the parties. See Paulucci v. General Dynamics Corp, 842 So. 2d 797 (Fla. 2003). In your opinion what legal basis does the successor have for not hearing my pre-settlement claims.What am i not seeing? I have filed a motion for reconsideration.
      thanking you in advance,

      • fl_litig8r says:

        There’s some misuse of the term “subject matter jurisdiction” going on here. As explained in Paulucci, 842 So.2d at 801 n.3:

        Jurisdiction is a broad term that includes several concepts, each with its own legal significance. In Paulucci, the Fifth District characterized the issue before it as one of the trial court’s “subject matter jurisdiction.” See 797 So.2d at 21. We conclude that framing the issue as one of subject matter jurisdiction is inaccurate. Subject matter jurisdiction “means no more than the power lawfully existing to hear and determine a cause.” Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla.1994) (quoting Malone v. Meres, 91 Fla. 709, 109 So. 677, 683 (1926)). It “concerns the power of the trial court to deal with a class of cases to which a particular case belongs.” Id. Rather, the issue presented by the certified question is more aptly described as one of the trial court’s “continuing jurisdiction.” Cf. Finkelstein v. North Broward Hosp. Dist., 484 So.2d 1241, 1243 (Fla.1986) (finding that the trial court has continuing jurisdiction to entertain a post-judgment motion for attorney’s fees). (emphasis added)

        So what you’re really dealing with is not a subject matter jurisdiction issue at all. If a trial court enters a judgment incorporating a settlement or if it incorporated the settlement agreement by separate order and expressly retained jurisdiction to enforce its terms, it has the right to enforce that order (and the settlement agreement). In Paulucci, the trial court specified that it was retaining jurisdiction for that purpose, but it is not clear that such language retaining jurisdiction is required. While the Florida Supreme Court ruled that those orders which incorporate settlements and expressly retain jurisdiction allow the original court to hear disputes as to the consummation of the agreement, it did not say that such language would be necessary in all cases. It limited its opinion only to the facts presented before it, leaving open the possibility that a court which incorporated a settlement agreement into its order of dismissal would still be able to hear disputes regarding that settlement. It even cited language from another case stating: “[t]here are numerous case law holdings that even without an express reservation thereof, jurisdiction inherently remains in the trial court to make such orders as may be necessary to enforce its judgment” without making any comment in either the affirmative or negative about such a situation. Id. at 801. I’m inclined to believe that such language specifically retaining jurisdiction is not necessary, as long as the court incorporated the agreement into an order or judgement.

        The one scenario in which the Florida Supreme Court specifically stated that the original court does not have jurisdiction to hear a subsequent enforcement claim based on the settlement agreement is where the case is voluntarily dismissed and the court neither enters a judgment nor a separate order incorporating the settlement agreement. See id at 803. So, if in your case, the court’s order of dismissal (after your voluntary dismissal) did not incorporate the settlement agreement, Paulucci would require that any subsequent claim based on the nonperformance of the settlement agreement be handled via a separately filed breach of contract action. This claim could be filed in the same court (and may wind up in front of the same judge as the first case), but it would be a separately filed lawsuit, and not a re-opening and continuation of the old lawsuit.

        There are other circumstances where the original court wouldn’t be able to hear the claim even if it had retained jurisdiction, such as claims which exceed the scope of the settlement agreement (for example, those involving extra-contractual damages), but I’d rather not get into that if it isn’t needed.

        If your case is one in which the court dismissed the lawsuit without either entering a judgment or separate order (such as the order of dismissal) incorporating the terms of the settlement, your action for breach of that agreement should be handled via a separate lawsuit, and not as part of the underlying lawsuit. If the court is trying to force you to address your claims as part of the original suit under these circumstances, it is not following Paulucci.

  34. charlie says:

    Hi fl_litig8r,
    I am requesting production from an unlicensed realtor (he gets paid on a transactional and/or a commission basis not a salary therefore according to FREC he is an unlicensed realtor). This is the same defendant who entered my apartment without my consent and i have sued him for invasion of privacy, trespass, breach of quiet enjoyment, and for IIED. Besides my apartment the unlicensed realtor rents and manages multiple condominiums owned by parties other than himself. Besides requesting a copy of his real estate license, copies of all leases he signed as the landlord’s agent what other production should I request? Thanking you in advance,

    • fl_litig8r says:

      Charlie, while I have no problem discussing legal concepts or procedures you may be having difficulty with, I’m not going to advise you specifically how to litigate your case. I titled my website as I did for a reason.

  35. charlie says:

    Hi fl_litig8r,

    I understand. Happy holidays and new years!

  36. Edwin says:

    On Dec 17 2012, you said, “If this is a personal injury case, your tax returns are usually only discoverable if you are making a wage loss claim.” Does that logic apply to interrogatories asking about earned and unearned income for each of the last 10 years? (Interrogatories are to a Plaintiff in an auto accident case, who originally made a wage loss claim but is now rescinding that claim and proceeding with the other claims, by amending the complaint.)

    • fl_litig8r says:

      Yes. If a client of mine who was not making a wage loss claim received such an interrogatory, I’d object to it as being irrelevant (you may want to specifically state in your objection that it is irrelevant because you aren’t making a wage loss claim — some lawyers just send out form interrogatories and more specificity in your answer may avoid any argument over the subject if the lawyer who sent them didn’t realize that you were no longer making such a claim, or just sent the form interrogatory without thinking).

      I’d likely object to any interrogatory about “unearned” income as being irrelevant even if my client was making a wage loss claim. While I can imagine that a plaintiff might open the door to how much money they have in general (for example, by claiming that they didn’t follow a doctor’s treatment suggestions because they couldn’t afford it), generally how much money someone makes from activities unrelated to a wage loss claim have no relevance to a lawsuit, and aren’t reasonably likely to lead to admissible evidence, either.

  37. Edwin says:

    (Regarding request for admission, not interrogatory.) (1) Q: Admit Exhibit A is a genuine police report. A: Admit (2) Q: Admit all the information on Exhibit A is accurate. A: Can neither admit nor deny as there is information contained on the accident report beyond personal knowledge. My state’s court rule says “when good faith requires that a party qualify an answer or deny only part of the matter of which an admission is requested, the party must specify the parts that are admitted and denied.” Seems to me like respondent would have to identify which parts they don’t have personal knowledge to, and which parts they deny being correct. Respondent heavily points to the word “all” in the request.

    • fl_litig8r says:

      There really aren’t any serious penalties for denying something that should be admitted in a request for admission in most jurisdictions, especially when it comes to things as complicated as admitting to the accuracy of an entire police report. In most jurisdictions, the penalty for not admitting something which is later proven true at trial is that the denying party must pay the costs the other side incurred in proving the matter at trial. This is rarely enforced, however, and it is unlikely that such a penalty would be imposed for denying something which is hotly disputed in the case. While I know that this defendant neither admitted nor denied, I expect that if pressed by the court, he will just change his answer to a blanket denial.

      In a case such as your first request, which goes to the authenticity of the document, this is something that should obviously be admitted as it is a simple matter to verify. If they denied it and forced you to bring someone to trial to testify as to its authenticity, you could recover your costs in having to bring that witness to trial (and possibly attorney’s fees, as well).

      As to the second request, which really asks for a whole bunch of admissions to be made, as the accident report contains a plethora of factual allegations, I doubt that the court would impose such a sanction for a denial even if you were to prove that everything in the report is true at trial. Aside from the fact that there is a legitimate argument to be made that such a request does indeed ask for information beyond the personal knowledge of the recipient (as accident reports often contain information from both sides which one side may not be able to admit or deny), the request goes so to the heart of the matter at issue (who is at fault for the accident) that the court would likely find that a defendant, especially one denying liability, would be justified in denying it in general without the risk of sanction. This would be similar to asking a defendant who denies liability to admit that they were negligent. A denial of such a request for admission, when the matter is truly disputed, will almost never result in sanctions for failing to admit even if the defendant is later found by a jury to have been negligent.

      By couching the request as one which requires admission only if “all” the information in the report is accurate, the respondent is justified in denying the entire thing based on a single error or disputed piece of information. While the rules require partial admissions, the question itself creates a situation where a complete denial is an appropriate response when there is only one piece of information in the report subject to dispute.

      If you really want specific parts of the report admitted, serve a new set of request for admissions with separate requests asking for individual pieces of information — and don’t reference the report itself. For example, instead of asking them to admit that box 20 of the report is accurate, ask them a question based on box 20, e.g., “Admit that defendant was exceeding the posted speed limit at the time of the subject accident” or “Admit that defendant’s vehicle did not leave any skid marks prior to colliding with plaintiff’s vehicle”.

      When it comes to requests for admissions, the more specific you are with the request, the more likely it is that the court will later sanction the defendant for a failure to admit.

  38. charlie says:

    Hi fl_litig8r,

    The final order reads verbatim as follows;
    “In consideration of the foregoing stipulation, it is ordered and adjudged that the above cause is hereby dismissed with prejudice, each party to bear their own costs and attorneys fees.”

    Does the above “FINAL ORDER OF DISMISSAL” (judgment) incorporate the settlement and if not what is an example of a judgment incorporating a settlement.

    THANKS !

    • fl_litig8r says:

      No, that appears to be a run-of-the-mill dismissal after a stipulation for dismissal is filed. I see no language there which would incorporate your settlement agreement.

      As far as judgment language is concerned, keep in mind that a judgment, by its very nature, sets forth the rights and duties of the parties to the case. While it can (and most often does) specifically state those duties (e.g., judgment is entered in favor of plaintiff against defendant in the amount of $100,000.00), it could just as easily state that “judgment is entered in accordance with the parties’ settlement agreement”, which would need to be filed with the court (perhaps under seal if the terms are to remain confidential) so that it can be referenced.

      I found a Florida Bar Journal article which discusses the issues of the court’s continuing jurisdiction (or lack thereof) to enforce settlements both pre and post Paulucci, which may be helpful to you in explaining how this should work to the court. While you can argue your own (and my) read of the Paulucci case, I think the court might be more willing to accept that interpretation if a Bar Journal article backs it up (which this one does).

      • charlie says:

        Hi fl_litig8r,

        im proud of myself. i had, previous to your reply, drafted the motion for reconsideration and inserted a footnote referencing the same Florida Bar Journal Article. now that i know the dismissal does not incorporate the settlement i will file the motion. I very much appreciate all you do! THANKS!!!

  39. charlie says:

    Hi fl_litig8r,

    May discovery continue while a stay of proceedings has been stipulated to?


    • fl_litig8r says:

      Typically, no. A stay of the proceedings should bring a halt to all case activities until the stay is lifted. I say “typically” only because a stipulated stay could, in theory, make exceptions for certain activities. Those would have to be specifically set forth in the stipulation.

  40. RWims says:

    I have just been informed by our attorney the Defendant filed a motion to Amend Answers and Affirmative Defenses. He is petitioning the court to allow them to o amend their answer in regards to the lease agreement allowing us to pay his attorney fee’s. Can I file a motion for him to pay our attorney fee’s? What is our recourse in this situation?

    • fl_litig8r says:

      Whether you are entitled to fees depends on the language of the agreement and the laws of your state (for example, in Florida, there is a statute which says that attorneys fees are to be awarded to either side even if a written contract states that they are only to be awarded to one party). If you can be awarded fees, the request for such should be made in your Complaint — if it’s not there already, you’d need to amend it. A motion for attorney’s fees is only filed after you’ve won.

      • RWims says:

        We reside in Florida. So I can request an amendment to pay our attorney fees as well?

        • RWims says:

          We reside in Florida. We are plaintiffs in a mold claim. I reviewed the lease agreement, it states:
          “In the event that it is necessary for the Lessor to place this Lease Agreement in the hands of an attorney for enforcement, collection, or any other purpose, the Lessee agrees to pay Lessor’s attorney a reasonable attorney’s fee for his services and also agrees to pay all costs which may be incurred by the Lessor and/or the said attorney in connection with the said enforcement of this Lease Agreement or collection and all costs incurred thereby. In the event that a court of competent jurisdiction finds any provision of this lease to be unconscionable as to either party, it is the express intent of the parties that the remainder of this lease shall remain in force without the unconscionable provision. No failure of the Lessor to enforce any term hereof shall be deemed a waiver, nor shall any acceptance of a a partial payment of rent be deemed a waiver of the Lessor’s rights to the full amount thereof.

          • fl_litig8r says:

            The “or any other purpose” language may open the door for attorney’s fees (for both sides). However, the “in connection with the said enforcement of this Lease Agreement” makes me wonder whether fees could be awarded in a mold case — is such a case really considered to be an action for enforcement of the lease? There’s some ambiguity here for sure. One possible course of action would be to argue that the attorney’s fee provision is inapplicable to such a case, but should the court decide otherwise, that leave be given for the plaintiff to amend her Complaint to seek attorney’s fees as well under the contract provision and Fla.Stat. §57.105(7).

            I don’t really handle lease agreement disputes, and I don’t know what specific claims have been made in the lawsuit (or if there are counterclaims), so your lawyer is in a much better position to research this issue than I (and he’s being paid for it).

        • fl_litig8r says:

          That depends on whether the contract in dispute in fact allows for attorney’s fees at all. But, as I said, if it allows for one side to collect attorney’s fees, Florida Statute §57.105(7) makes that provision reciprocal so that either side which prevails in a dispute subject to that provision can recover its fees.

          It’s definitely something I’d ask your lawyer about. If you’re going to try to amend your complaint to ask for attorney’s fees, doing it at the same time the defendant is trying to amend its answer for the same reason would be best. This way, it would be difficult for the court to say “yes” to the defendant and “no” to you.

  41. charlie says:

    hi fl_litig8r,

    hope all is well with you. when pleading an invasion of privacy claim (or any other tort claim) against several individuals can a claim against the same individuals also be plead for civil conspiracy to commit invasion of privacy. In other words may an individual be charged individually and also charged as part of a conspiracy for the same tort?

    as always much thanks,

    • fl_litig8r says:

      Yes, though there may not be any benefit in doing so. Your damages for the conspiracy will be no greater than that of the underlying tort they conspired to commit, which you still must prove to win on the conspiracy claim. It’s really only useful if you can’t prove all of the elements of the underlying tort against each defendant/conspirator, but you can prove an agreement among them and acts in furtherance of the tort (along with proving that at least one of them committed the tort itself). Otherwise, you’re just creating more work for yourself, because now you’d need to prove an additional element — the agreement between the parties — and it wouldn’t increase your damages.

  42. charlie says:

    Hi fl_litig8r,

    Thank you fl_litig8r.


  43. charlie says:

    hi fl_litig8r,

    Please answer this question. I was a party to a settlement agreement. the settlement agreement is silent as to legal remedies.
    I have filed a complaint for breach of settlement and seek reinstatement of the original claims. the other side argues res judicata prevents the litigation of the original claims.

    When a party enters a settlement agreement, without limitation to all legal remedies, and the settlement is breached by the other side, does the res judicata doctrine prevent the aggrieved party from raising the claims which were part of the settlement?


    • fl_litig8r says:

      Res judicata will preclude reinstatement of the original claims unless, as I discussed previously, you somehow manage to get the settlement agreement rescinded and the dismissal with prejudice vacated. As I said in prior comments, an action for rescission would require that you first pay back any settlement money you received, and prove that there was a material breach of the contract (which may not be possible).

      If you have not requested rescission and are only proceeding on a breach of contract claim based on the settlement agreement, then the original claims will be barred by res judicata. You can still request any damages that resulted from the breach, however, and raise any new claims that arose after the original matter was dismissed. So, if the defendants engaged in conduct after the dismissal which was similar to the conduct upon which your original claims were based, you could sue them using the same type of claim again based on the new conduct, and that would not be barred by the prior dismissal.

  44. charlie says:


    if i do not have the money to pay back the settlement money received does that close the door on rescission or are there other ways to get around it by i.e. having a judgment against me?

    • fl_litig8r says:

      In Florida, restoration of the other party to its pre-contract status quo is considered a condition precedent to a recission claim, meaning this must be done before the claim can be brought. If you can’t currently refund the money to the defendants, I don’t see a way around that. A judgment against you doesn’t restore the status quo, especially if the reason you’re offering the judgment is because you don’t have the money to pay it.

  45. charlie says:

    hi fl_litig8r,

    thanks for the reply.


  46. charlie says:

    Hi fl_litig8r,
    I sued several defendants. We settled. The defendants insurance company paid the settlement. Subsequently the insurance company cancelled the defendant’s policy. Subsequently the defendants breached the settlement. I sought rescission of the settlement. Surprisingly they agreed.
    Why would an insurance company that paid to settle a case agree to rescind the settlement? My guess is the insurance company is avoiding liability by taking the position, due to the defendants breaches, the defendants are liable for all monetary damages. I value your wisdom and am curious why you think the insurance company would agree to rescind the settlement.

    • fl_litig8r says:

      Any answer I give would be pure speculation. You may be right that the insurer now thinks it has a viable coverage defense, so it wants its money back in the hopes that it won’t be on the hook for any future judgment. Or, it could be that it had buyer’s remorse about settling with you to begin with, and now, given a second chance, it would rather defend the case than pay you. I really can’t say. I would be wary of the fact that they are amenable to the rescission, though. You know what they say — be careful what you wish for.

      • charlie says:

        Hi fl_litig8r,

        I speculate the insurance company is accepting rescission so they no longer will have any liability exposure. The insurance company would achieve this by receiving their settlement money back and then discharge themselves from insuring the defendants any longer. The insurance company could discharge their duties to insure the defendants under the basis the defendants intentional acts caused the rescission.

  47. charlie says:

    Hi fl_litig8r,

    what can you tell me about filing a claim for civil perjury in the State of Florida?

    Thanks and gratefully,


    • fl_litig8r says:

      There is no “tort” claim for perjury. It’s a crime, not a civil claim, and criminal prosecutors practically never go after perjury from a civil case. However, if you discover that an opposing party has committed perjury while the civil case is still pending (and you can prove it), the plenary powers of the court can be used to sanction the party, up to and including the striking of pleadings, dismissal of the case with prejudice (for a plaintiff committing perjury) or a default judgment (for a defendant committing perjury). This would be accomplished via a motion for sanctions. This 1999 Fla. Bar Journal article has a pretty good explanation of how sanctions for perjury work in civil cases (I’ve linked to the relevant portion at the end), and the severity of the perjury required to receive the harshest sanctions.

  48. charlie says:

    Hi fl_litig8r ,

    THANK YOU for all your help.


  49. charlie says:

    Hi fl_litig8r,

    crucial to pending claims is a lease agreement i entered into. although the defendant admits the lease agreement is a true and accurate copy of the original and although the defendant signed the lease agreement as the landlord’s agent the defendant claims not to be a party to the lease agreement. during the duration of the lease i dealt exclusively with the landlord’s agent. under what legal scenario would the defendant have for not being a party to the lease agreement?


    • fl_litig8r says:

      The general common law rule, which is followed in Florida, is that an agent of a disclosed principal is not liable for a contract he signs on behalf of the principal with that’s principal’s authority, unless otherwise agreed to in the contract. If the principal is undisclosed, or only partially disclosed, or if the agent signs the contract without indicating that he is signing on behalf of the principal, you have an argument that the agent is also liable. But if the contract spells out who the principal is and the signature line for the agent clearly says that he is signing on behalf of the principal, the agent isn’t liable.

      It doesn’t really matter what dealings you had with the agent after-the-fact. A property manager may sign a lease on behalf of a disclosed landlord, and as long as he had the authority of the landlord to do so and signs the contract on the landlord’s behalf, the property manager isn’t a party to the contract. That property manager can then go on to handle the day to day dealings with the tenant in his capacity as property manager without exposing himself to personal liability for the contract.

  50. charlie says:

    Hi fl_litig8r,
    thanks for the prompt response. The facts are (a) only the landlord’s name was provided (partial disclosure) and (b) the landlord agent signed the lease without indicating he is signing on behalf of the landlord. Technically speaking what, if any, are the legal differences between a landlord representative, a landlord agent and a property manager?


    • fl_litig8r says:

      I don’t want you to get confused by whatever job title the agent holds. That’s really not important. Agency doesn’t depend on him holding a specific title. The more relevant issues are whether he had the authority to sign on behalf of the landlord, whether the landlord was disclosed, and whether it was clear that he was signing in his capacity as an agent or not. If the signature line doesn’t make that clear, I would think that would at least create an issue of fact as to whether he signed as an agent or individual which would preclude dismissal. Of course, the only contracts I deal with on a regular basis are insurance contracts, so these issues aren’t anything about which I claim specialized knowledge. You’ll need to do some research.

Leave a Reply

Your email address will not be published. Required fields are marked *