Seven Deadly Sins for Plaintiffs

You may not think that the seven deadly sins have anything to do with your lawsuit. Before you get nervous, know that I’m not a religious person and I’m not going to preach to you. Rather, I appreciate the simplicity of a defined “code of conduct”, as it makes it easier to recognize when you’re screwing up. So, I decided to take some widely known (and therefore, easier to remember) “sins” and use them as a warning to plaintiffs. I’m not trying to save your soul, just your lawsuit. Commit the following sins and your case will pay the price.

Sin Number One – Wrath

A personal injury lawsuit is not your personal vendetta against the person who injured you (or his insurance company). Whenever a client tells me that they are suing for “the principle of the thing” I get nervous. You should be suing for fair compensation, not vengeance. When you would prefer “your day in court” over a fair settlement, you’ve lost perspective.

Abandon all hope of teaching the insurance company a lesson. You will not shame it. You won’t change the way it does business. It will continue to do whatever it thinks will make it the most money. Insurance adjusters don’t take your case personally, win or lose. Don’t project malice onto an entity which has no feelings.

In short, don’t let anger cloud your judgment and cause you to decline a fair settlement offer. The only people you’re hurting are your lawyer and yourself.

As a side note, be nice to paralegal on your case. They can take wrath to a whole new level.

Sin Number Two – Greed

This one is pretty straightforward. A lawsuit isn’t a lottery ticket. Its purpose is not to make you rich. Be fair when evaluating your damages. A jury certainly will be.

Sin Number Three – Sloth

Many people get the wrongheaded notion that they should stop working in order to increase the value of their lawsuit. Unless your doctor tells you to stop working, or restricts your work activities, you should keep going to work as you did before the accident. You won’t be paid for wage loss if you can still work, but simply choose not to.

Even if you can no longer perform the job you held at the time of the accident, if you can work at a different job with lower physical requirements, you should. You will be compensated for the difference between what you used to earn pre-accident and what you can earn post-accident. If you choose not to work when there are jobs which meet your physical restrictions available, a jury will be instructed to deduct the money you could have made from your wage loss damages.

Sin Number Four – Pride

Do not become so overconfident in the strength of your lawsuit that you fail to consider all the risks involved in going to trial. Jury trials are never a sure bet. Jury nullification is not limited to criminal trials. If a jury finds the defendant to be sympathetic (that little old lady who plowed into the back of your car is still a little old lady) or if the jury doesn’t like you, there are plenty of things they can do to minimize your judgment.

Jurors can latch onto insignificant details or speculate about things they shouldn’t even consider and surprise you with a whopper of a verdict. They may love the defendant’s expert witnesses and hate yours. Plenty of things can go wrong. Some things can be fixed through an appeal, but do you really want to have to go through that?

No matter how strong your case is, only go to trial if you have to. Pride goeth before a fall. Pride in your lawsuit goeth before a defense verdict.

Sin Number Five – Lust

For this one, I’m going to have to go with the “pursuit of pleasure” definition, as sexual lust really doesn’t have much to do with a personal injury lawsuit (unless, of course, you cheat on your spouse and thereby create an adverse witness). Be very careful with your recreational activities while your lawsuit is pending. Even if you don’t think surveillance is likely in your case, you should always accord yourself in public as if you are being watched.

I understand that even badly injured people can have “good days” when they don’t hurt as much. If you decide to play beach volleyball on one of these good days, don’t be surprised if it comes back to haunt you. Don’t do anything you wouldn’t want a jury to see.

By the same token, if you go on vacation while your lawsuit is pending (remember that lawsuits can take years), don’t post pictures of your trip all over Facebook. Don’t tweet about the good times you’re having (unless you also tweet about the bad times as well — but who wants to read that?). Do not let the pursuit of pleasure in the short term hurt your lawsuit.

Settlement tip

Sin Number Six – Envy

Most people know someone who’s been in a personal injury lawsuit. Unfortunately, people don’t always tell the truth about how much they made from their lawsuits. For some reason, people tend to embellish their awards, as if they’re ashamed of how much they really received. This is a problem that seems to multiply, as people don’t want to admit that they got less in their lawsuit than someone else (who probably made less than he claimed).

Settlement tip

Any time someone tells you how much they made in a lawsuit, take it with a grain of salt. Even if they are telling the truth, don’t allow their outcome to color your evaluation of your own case, as no two lawsuits are the same. Maybe they lucked out and got an adjuster who stupidly paid way too much. Maybe they got a one-in-a-million runaway jury. You will never know.

Any time you tell your lawyer that you know someone who wasn’t hurt as badly as you and got “X dollars”, your lawyer rolls his eyes. If you think your lawyer, whose income depends on getting you the most money he can, is lowballing your case, you’re probably wrong.

Do not envy your friends’ supposed lawsuit results. Evaluate your case on its own merits and trust your lawyer’s opinions when it comes to settlement talks.

Sin Number Seven – Gluttony

Too much of anything can hurt you. For gluttony, I would warn about receiving too much medical treatment. Overtreating may not hurt you physically (though it may), but it will certainly hurt you when the time comes to settle your case. Medical bills can pile up quickly, and if you overtreat, you can price yourself out of a reasonable settlement. In other words, you may not be able to afford to settle due to your unnecessarily high medical bills.

Soft tissue injury plaintiffs are most at risk for overtreatment, mainly because their cases tend to settle for far less than cases involving herniated discs, torn rotator cuffs, broken bones and surgery.

Be especially careful of overtreatment when it comes to chiropractic care. Do you really need to go three times a week for 10 weeks? Would you feel just as good going two times a week or once a week?

Keep track of your medical bills, including those that are paid for by your health insurance (yes, you will likely have to pay your health insurer back from your settlement). Hire a lawyer early in your treatment, so you can get his opinion on the value of your case and the amount of medical bills you are accumulating. Be frank with your medical providers and explain your concern about not making enough from your lawsuit to pay for all the treatment you’re receiving. Make sure you’re not being overcharged for your medical care.

Don’t pig out on medical care just because insurance is paying for it. At the end of your lawsuit, there will be a price to be paid for all of your “free” medical care.

Be Reasonable and Emotionally Detached

If I had to boil this code of conduct down to a “golden rule”, it would be to “be reasonable and emotionally detached.” Emotion clouds your judgment, so don’t make any big decisions about your lawsuit until you can do so with a clear head. Also, as long as you’re reasonable, you should not have any regrets about your lawsuit, regardless of the outcome.

Now, go forth, my plaintiffs, and sin no more.

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111 Responses to Seven Deadly Sins for Plaintiffs

  1. Annie says:

    Thank you for your insightful and helpful website. I wish I had stumbled upon it at the beginning of my lawsuit rather than the end, but nonetheless it is an EXCELLENT resource.

    I have to admit to feeling really ticked off when I read through it, though. It’s bad enough that we have to go through the physical devastations many of us do that cause us to file suit, but to then have to be subjected to the emotional raping that goes on is just outrageous to me. Especially considering that the defendant does not. We’re supposed to lay our entire lives out there for them to peruse, yet the defendants don’t have to go through the same thing. Our privacy is violated in every turn in a civil lawsuit. And now you say even such things as our Facebook accounts are fodder for them? Our neighbors, our bosses, our friends? Are you kidding me? What in God’s name does ANY of that have to do with our cases? You’re telling me that I have to be concerned about something a random Facebook friend may post on THEIR site because it could affect MY case? Unfreakingbelievable. I don’t drink, so there’s no pictures of me drunk and stupid on my FB, so if someone I have as a friend does, tell me what that has to do with me or, even more importantly, my having gotten hurt? There needs to be reform in these practices. This is supposed to be a society based on freedom and democracy. There’s supposed to be HIPA laws, for example, to protect our right to our medical privacy, yet we’re supposed to let them see our entire medical history. I can understand if it involves previous injury to the body part in question, but not anything else. Every scar, every sore, every breast exam is supposed to be available for their perusal? THAT’S BALONEY! And then on top of it, we’re supposed to do so without being angry? The whole thing is just plain abusive to the plaintiff…you know, the one that got hurt. Because we dare to try and get some relief and justice for what happened to us. The whole thing makes me sick, but it is something I have to go through. I lost my job because of my accident. I’ve had multiple surgeries and constant physical therapy and will probably never get better because there’s not much else they can do. In other words, my life was totally and thoroughly screwed because of their negligence. I would give anything to not have been injured, but I can’t go back in time. So the only recourse I have is to hopefully get paid back in money….the only language insurance companies know how to speak. But I hate everything about it.

    Thank you for caring about us plaintiffs out here. Wish you were my lawyer.

    • fl_litig8r says:

      I know that a lot of times it feels like the plaintiff is the one who’s on trial. I understand your feelings about having to expose your private medical information to the defense, but it is a necessary evil. Discovery in civil cases must be broad so that each side has a fair chance of exploring the other side’s claim. Most times, the plaintiff will tell the truth about their medical history and the discovery they produce will support those claims. However, there are plaintiffs who lie (omit pre-existing conditions, exaggerate symptoms) and defendants need broad discovery to expose this. Luckily, privacy laws (and protective orders) keep this type of information from spreading beyond the participants in the lawsuit.

      I’d be lying if I said that there aren’t defense lawyers who use discovery to harass plaintiffs in the hopes that it will make them want to settle. They can get the names of all of your friends and question them just to make you uneasy and cause problems in your social life. Most of the time, this doesn’t happen (the cost of doing this usually isn’t worth it), but the defense can certainly make it “appear” like this will happen merely by asking for the names. Getting your Facebook information is just an extension of this. The defense knows that it will make the plaintiff extremely uncomfortable and that there is a good chance they will get nothing usable in your lawsuit from it, but because there are cases where plaintiffs do post damaging photos and information on their Facebook accounts, no reasonable judge would deny them this discovery.

      Discovery has a broad scope because, unlike on TV, real life civil trials are not supposed to have any surprises. Without discovery, each side couldn’t fairly question the claims of the other. In personal injury cases, the plaintiff is more exposed because she is the one seeking damages — she is putting her medical (and often mental) condition, as well as work history, at issue by virtue of her claim. I know it sucks to have to share gynecologist records in a back injury claim, but there’s always the possibility that the OB/GYN recorded a complaint of back pain that might ultimately lead to the discovery of a pre-existing condition. The defendant doesn’t have to share as much because his medical condition and work history has nothing to do with the claim — he has no damages to prove.

      Don’t expect any reform of the discovery process which will make it more difficult for defendants to get information. Plaintiffs can already object to discovery and obtain protective orders to keep defendants from seeking information that is not reasonably calculated to lead to admissible evidence. Anything more onerous than that would violate a defendant’s right to a fair trial.

      At least you can take some small comfort in the fact that every time the defense attorney casts a broad net with his discovery, he’s billing the defendant’s insurance company by the hour to go over all the information he obtains.

  2. Freightguy says:

    Lessons for Lawyers;
    #1. There are other cases that pay very well other than personal injury.

  3. reid says:

    im going to mediation next week my attorney put in a demand for 250.000 he know its worth what would you say a fair settlement would be

  4. rae says:

    If you wanted to ask something on this page could it hurt your case by asking questions on here?

    • fl_litig8r says:

      Well, that depends on the question. For starters, I encourage people not to use their full name (or real name at all) when posting comments, so that a Google search (the most likely way you would be discovered by opposing counsel) for the person won’t lead anyone to this site. As you can see, I’ve taken the liberty of removing your last name — one of the advantages of moderating posts is that I can save people from posting identifying or damaging information before the post is visible to anyone but the original poster.

      As to the nature of the question, normally the questions I get won’t hurt people’s cases, even if the person is easily identifiable. Of course, if you post something like “I lied in my deposition. What should I do?”, that’s a different story and you should definitely make sure you can’t be identified by selecting which information you share.

  5. Al says:

    Your site is phenomenal, it makes me feel a little more at ease with my current case. I have a workers compensation case, and live in CA. I know you don’t practice WC cases, and live in Florida but might give me some input.

    I use to work at this place under a different name (was not legal at the time), hurt myself lifting somethings, work provided medical care, but once I wasn’t happy with their drs I got a WC lawyer who filed for me about 3 months after my injury (also became legal 🙂 ). I continued to work, I had restrictions but they stopped accommodating me within a month or so, so I told my dr. he put me on disability and then I was fired a few days later due to the company claiming they did because they didn’t know about my name (When I got my attorney they sent my job all my information with my real name/SS and my false name/false SS, yes the company employs many undocumented individuals and has complains but everyone is afraid to get fired or deported, or else there would be more lawsuits against the company). I just received a notice for a deposition in about 2 months saying I needed to take a bunch of stuff with me, ID, bank records, medical records since I was born, etc. The paralegal said not to take anything to the deposition. Do you think that the name thing will have any affect in my case? My attorney said no because we all have rights, and since I’m legal now it’s a plus. But I just don’t want the insurance to attack my credibility because of something I had to do (get a false name to work)?

    I know you’re busy and thank you in advance just for reading this.

    • fl_litig8r says:

      I’m really going to have to defer to your lawyer on this question. I know that in employment discrimination cases, a lie on an employee’s application can result in a “front pay” wage loss claim (or claim for reinstatement, if the person was terminated) being precluded — the rationale being that if the employer would have fired the employee for the lie anyway, the employer should not be forced to rehire the claimant or pay future wage loss. Back pay can also be affected, if the lie is discovered prior to litigation, often limiting this compensation to wage loss incurred up until the date the lie is discovered. Both of these limits on damages are dependent, of course, on the employer proving that it would have taken the negative employment action (such as termination) had it known of the lie — if an employer would not have fired the employee over such a lie, which can be proven by pointing to other employees who were not fired for similar lying on their resumes, then this defense may not limit the damages at all. Again, though, this is just in the employment discrimination context.

      Whether California workers’ compensation law allows similar defenses to claims involving a lie on a resume is something I can’t answer, which is why I defer to your lawyer. There are enough differences between workers’ compensation law and employment discrimination law for me to accept that they would treat the “after-acquired evidence” rule differently. Also, I’m not so sure that an employer who regularly hires undocumented workers would want your lawyer to perform discovery on the issue of whether he would have fired you had he known you were undocumented, which would entail looking in detail at his hiring practices. I’m kind of surprised that this defense is being raised, but that may be at the insurer’s insistence, rather than at the employer’s (the insurer may not know or care what can of worms it is opening).

      While the insurer may try to spin this understandable lie into a claim that you are not to be trusted on any matter, I’m sure that the administrative judge assigned to you claim won’t be so quick to assume that, and will judge your claim of disability on the medical evidence.

  6. Fonz says:

    Hello I have a question for you, although it’s not a personal injury (it’s a workers comp), but it’s more about something that was asked of me. I had a deposition this past Friday and was asked questions regarding what I’m also claiming (depression, anxiety, social withdraws, etc.) the opposing council asked about my ex gf, since we broke up after my injury. Problem is we didn’t break up on good terms I would say, along with the fact that she still works for the company where I hurt myself and is going though a separation/divorce/idk what to call it. And I’m nervous that she might cause harm to my case, because she doesn’t want to state somethings that might affect her later down the road. Do you think it’s possible for the insurance attorney not to go asking her questions and whatnot? Could I just ask my attorney (he’s not in his office for the next few days) to prevent the insurance attorney from asking her anything? In one of your post you say that my attorney can’t go telling my friends/co-workers not to speak to the insurance attorneys but what about her since she’s someone who the insurance attorney seemed interested in? If for whatever reason they made her give a deposition would there be anyway for my attorney or myself to be present as well? Sorry to ask a non personal injury question but this has been driving me nuts and didn’t know who else to ask. Oh yeah I’m from CA. not Fl.
    Thank you in advance.

    • fl_litig8r says:

      There is no way to block the insurer or its attorney from speaking with your ex. Your own lawyer would not ethically be allowed to tell her (or even ask her) not to speak with them. You can ask her not to speak with them yourself, as I discussed in this article (though if you do, I wouldn’t tell your attorney — it’s safer for him ethically not to know). Of course, this would depend on your ability to persuade your ex. You can only ask her not to speak to them as a favor — you can’t force her.

      If she won’t speak with them privately and they decide to depose her, she will be compelled to testify. Your lawyer will receive notice of the deposition and can attend (as can you).

      • Fonz says:

        Thank you for your wonderful reply Mr. Litig8r. Darn, I see. Thank you, yeah I didn’t think telling my attorney would be a good idea. So I can speak to her and ask her as a favor to not say anything unless deposed? If she’s deposed, and my attorney chooses not to attend can I still attend? Can I make my attorney go if he doesn’t want to? I mean I am paying them so I have a right to make sure my case wins right? You so need to move over to CA.

        Also, your picture reminds me of “HOUSE”. 😉

        • fl_litig8r says:

          You can speak directly with her and ask her not to testify. The only thing preventing your lawyer from doing so are the ethics rules — but these only apply to lawyers, not lay people. If she is deposed, you can attend (a party can always attend depositions in his own case). While you can’t force your lawyer to attend her possible deposition, he’d been potentially risking legal malpractice by choosing not to do so. I can’t imagine that happening.

          CA’s too expensive for my blood. Plus, I’m not a fan of earthquakes (I can live with hurricanes — at least you get a decent warning with those). I do love the show House, and I am a bit of a curmudgeon, but the similarities between me and Hugh Laurie end there.

          • Fonz says:

            You’re amazing, thank you for everything, now I’m more comfortable with my case. And they say you don’t meet nice people on the internet. Well thanks again Dr. Lawyer House. 😉

            Didn’t know what “curmudgeon” meant, sounds like that “cronut” thing everyone is going nuts about. Well again thank you for all your help, if you ever come to CA, let me know so I can pick at your brain.

  7. ISABELLA says:


    I have been working on researching my pro se claim and was under the gun to get the complaint in by October 25, 2013 because of a Statute of limitations on one cause of action.

    I had read and corrected the list of defendants probable 20 times – but as soon as I put the complaint on the counter I noticed I have not listed 3 prime defendant- I have punished my self for such stupidity but now I must get over it.
    My questions is do I simply add the three defendants and present it again to the court or do I have to ask the court for permission.

    I would be very grateful if you could give me some help in this.

    Also is it the law that a letter of intent must be sent to and individual before suing them.

    • fl_litig8r says:

      Adding the missing defendants now will not fix the statute of limitations issue on that one claim, if that claim is being brought against them. That being said, you get one “free” amendment at any time before the defendant files an Answer, so you can just file an Amended Complaint without getting court approval or consent from the defendants. Then just serve all defendants with the Amended Complaint.

      If you are referring to the notice required under Fla.Stat. §768.28, it is required for claims brought pursuant to state law against governmental defendants sued in their official capacity. It is not required for any federal claims, or for state claims against individuals sued in their individual capacity. If you haven’t sent the notice yet to defendants for whom it is required, and satisfied the 6 month waiting period after having sent the notice, that would be grounds for dismissing the state law claims against those defendants.

  8. ISABELLA says:

    Thank you so much-fortunately the cause of action against the three defendants has a four year statute of limitations.

    I have served the complaint except for one defendant in New Jersey – do I still have to serve her the first complaint or can I just serve her the amended complaint

    Again thank you so much

  9. Isabella says:

    Good Evening,
    I have just been informed that a defendant in my case who lives in NJ refused to be served and the processor will send me an Affidavit of Avoidance – how do I present those papers to the district court . Do I just present them to the Clerk or do I have to write a motion or something?

    I have found out that this defendant has a company in Florida and it names a Lawyer to take service, but I don’t know how to do it. Do I have to get a summons from the court? Can I mail it to him? If yes how do I get proof of service from him?

    I am very proud of myself I wrote a motion and it was granted

    • fl_litig8r says:

      The fact that the process server signed an affidavit saying the defendant is evading service doesn’t relieve you of the duty to obtain service by some authorized method. I refer you to Fla.Stat. §48.161, which generally authorizes service of process on nonresidents and those concealing there whereabouts (evading service) by serving the Florida Secretary of State. Note that compliance with this statute is construed very strictly (because obtaining actual service is the preferred method and substituted service needs to be monitored closely to ensure the defendants’ rights) and any error in complying with the statute will void the service. For guidance, see this case (pdf warning), which gives a good explanation of the requirements of the statute. I’d review other cases by Googling the statute to see mistakes made by other plaintiffs, as well.

  10. Charmaine says:

    Thank you for these–especially #2 and #7. I work in this field, and all too often see people claim injuries that aren’t even possible. I hear all kinds of stories about how “disabled” they are. More often than not they’re caught on video going about their business as if nothing’s wrong–which it isn’t. An ethical lawyer would fire this sort of client. Mine has.

    • fl_litig8r says:

      The fakers and malingerers ruin things for the legitimate clients, because insurers now tend to initially treat everyone as if they are frauds. I tell all my clients that it’s a whole lot easier to deal with a “bad truth” than a “good lie”, because lies tend to get discovered and they hurt cases more often than they help them. Of course, some of the blame has to fall on medical providers, mostly chiropractors, for overtreating and making low-value cases incredibly difficult to settle. Clients will just do what they’re told by the chiro, even if they’re told they need to “treat” 4 times a week. The clients don’t know any better, and often by the time they retain a lawyer, they’ve already run up a huge bill (often with little noticeable improvement in their condition).

  11. Isabella says:

    I attempted service by processor in New Jersey and she refused to take complaint. I sent it by certified mail and she refused to accept it.
    She has a company registered in her name here which has nothing to do with my case against her but she does have an attorney in Florida to accept legal documents- 1) can he accept a civil complaint against her even though the LLC is not connected to the with the case 2) Do I HAVE to do another try at service 3) if I have to serve him can I do it by Certified mail with a returned receipt.

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

    • fl_litig8r says:

      You can’t get service of process on an individual by serving the agent designated to accept service on behalf of an LLC which they own. The only way is by personal service or by substituted service, as I discussed in my last comment to you about this. Substituted service is obvious less desirable due to the strict and complex procedural requirements, but if you can’t get personal service it is the only way to go.

  12. Isabella says:


    I am a happy camper; the Court denied my defendants Motions to Dismiss and granted me permission to amend my complaint.

    1) I have previous orders from the Court following my original complaint to present to the Court a Joint Interim Status Report by March 13, 2014 is that now void? Should I expect a new Scheduling Order And Order of Referral to Mediation because I have presented an Amended Complaint.

    Service has been refused by one defendant who lives in New Jersey- I tried everyway suggested by the Courts and I actually made a Motion for a Special Processor for delivery of my first Amended Complaint – no answer yet

    1) Do I have to go through all steps again for this defendant as required by law to serve my Amended Complaint

    Thanking you in advance for any help that you can give me.


    • fl_litig8r says:

      I would expect that the original scheduling order is still in effect unless the court specifically orders otherwise, so don’t let that deadline slip by based on the assumption that an amended complaint means that a new scheduling order will be issued. More often than not, the court will stand by its initial scheduling order even after an amended complaint is filed.

      With respect to the defendant in New Jersey, because you weren’t able to obtain proper service on him/her yet, you would need to serve the Amended Complaint on him/her using the same process that would have been required for the original complaint. After the Amended Complaint is filed, you don’t need to serve the original complaint on the evading defendant — just the amended one. If you had gotten proper service on this defendant with the original complaint, you could serve the amended one by regular mail (or any other normal means of service).

  13. Isabella says:

    I have just received notice that one of the defendants in my case committed suicide on Sunday – He was the former Mayor of our town and although he did unforgiving damage against me I am still devastated because he lived in my condo and I knew him for over 11 years.

    But I have to continue because there are still another 8 defendants left – the deceased was being sued in his individual and official capacity in our town and was being represented by the Towns Insurance Company’s attorney.

    My question is do I have to remove his name from my case and how do I do that

    • fl_litig8r says:

      After you receive formal notice of the death of a party (usually through a filing known as a “Suggestion of Death”), you typically have 90 days to file a motion to substitute parties to keep the action alive against the decedent’s legal successors. In the case of the official capacity claim, you would substitute whoever takes the office that the decedent had while they were alive (so, if a sheriff dies, you substitute the new sheriff for an official capacity claim). In the case of an individual capacity claim, you’d need to substitute the estate of the decedent — in Florida, this is done by naming the personal representative of the estate. For example, you would name the new party as “Sheila Smith, as personal representative of the estate of John Smith”.

      Failure to move to substitute a party for the decedent within 90 days of receiving formal notification of the death can result in dismissal of the claims against the decedent.

  14. Isabella says:

    Good Morning,

    Just read my complaint again and I left off a name of an important Defendant out of the list of people in Count Four.
    She is named throughout the body of my complaint just not named on the Count; I did list the other 3 defendants just not her.

    There is nothing more that I want to change just that one line to add her name. This was an amended complaint and she was in the first complaint.

    My question is – is there anyway to add her name to Count Four without having to ask the Judge to amend my complaint again

    Thank you in advance for any help that you give me

    • fl_litig8r says:

      Any way you want to do it, you’ll need to get leave of court. Even if you want to couch it as filing a “Corrected” Amended Complaint instead of a Second Amended Complaint, you’ll need to get leave. If the original complaint had a “count four” with this person listed and you just accidentally deleted her while revising it (usually referred to as a “scrivener’s error” by lawyers), I’d call the revision a “corrected” amended complaint. If there previously was no count four, or she previously had not been listed in count four, I’d call it a second amended complaint. Either way, you should get leave of court when you file the revised version. Had it been something more simple like misspelling someone’s name, I’d say you could probably get away with filing a corrected version by notice without asking for leave, because that’s a minor error with a clear intention ascertainable from the original, and everyone likely knew what you meant. Your change doesn’t fall into this category — it’s more than a mere typo — so I’d get leave of court to be safe.

  15. Isabella says:

    Good Morning,

    Well I am stilling hanging in there- not thrown out yet!

    A defendant died but I want to use his taped statement to the police in my case. If I remove him from the case can I still use his sworn statement as evidence, if yes is there anything special that I have to do to get this into evidence.

    • fl_litig8r says:

      That’s way too vague a question for me to answer, and far too specific to your case for me to be willing to answer, as it would be too much like me acting as your personal lawyer. Whether the tape is admissible is going to depend on a variety of different issues that are particular to your case, so I can’t make any general statement as to whether dropping the declarant as a party will have any effect on its admissibility. Any time an outside statement is offered as evidence you have a lot of issues to examine. In this case, you may have a “hearsay within hearsay” issue, where the person discusses what someone else said in his statement. So, even if you get past the first hearsay obstacle of introducing a taped statement by a person not testifying, that person’s representation as to what someone else said would still be a hearsay hurdle to overcome. So much depends on the specifics of the statement that I can’t even give a general answer that will be helpful. A lot of it depends on the purpose for which the statement is offered. If the statement is being offered to show what the decedent believed, and not the truth of that belief, one analysis applies. If you’re trying to use the statement to prove the truth of what the decedent said, another applies. The “statement against interest” hearsay exception could apply. There could be a need to weigh the prejudice versus the probative value of the statement.

      Evidentiary issues are not easy for lawyers to decide and often require judicial resolution. They aren’t cookie cutter and depend on many facts and issues specific to the particular case and piece of evidence sought to be introduced. You’re going to need to research this one on your own based on the specific statement you want to introduce and for what purpose.

  16. FloridaQuestion says:

    Can a Florida parent record a face to face conversation with their child’s teacher and principal in an office.

    • fl_litig8r says:

      Even face-to-face conversations are subject to Florida’s wiretap law, Fla.Stat. §934.03, as “oral communications” (defined at Fla.Stat. §934.02(2)). Florida is a “two party consent” state, meaning that all parties to a private conversation must give consent for it to be legally recorded (as contrasted with some other states and federal law, which require only one party to know that the conversation is being recorded). If you intend to let them know that you’re recording them and they agree, then there’s no problem.

      If you intend to record them without their knowledge, the question becomes whether the parties have a reasonable expectation of privacy with respect to their conversation. Florida courts have held “[F]or an oral conversation to be protected under section 934.03 the speaker must have an actual subjective expectation of privacy, along with a societal recognition that the expectation is reasonable.” For your question, the second part of the inquiry (societal recognition) is the most relevant, as I would expect anyone party to a closed-door meeting would have a subjective expectation of privacy.

      After doing some research, I couldn’t find a single case addressing this issue as applied to teachers or principals. If this is a public school, one could make the argument that Florida’s broad public policy of “government in the sunshine” would eliminate the expectation of privacy of public employees interacting with the public, even if it is just a single parent they are speaking with. But that is all it is — an argument, not a definitive answer. If a court rejects this argument, you could face both criminal penalties and a possible civil suit under Fla.Stat. §943.10.

      If this is a private school, your chances of successfully arguing against a reasonable expectation of privacy by the teacher and principal are significantly reduced. If this is a meeting involving any other parents or students, I would say that those people almost certainly have an expectation of privacy which would preclude you from legally recording the meeting without their consent.

  17. FloridaQuestion says:

    Ok, here’s a hypothetical scenario. Student’s mother and father meet with teacher and principal in his office. The door is open and the administrative staff is privy to the meeting. The school is a private school. The conversation is recorded by the parents. However, the school isn’t private in the sense of protection from U.S.Dept of Education. This is a Title I funded school. The parents record discriminatory comments from the principal in an open door office.
    What is your legal conclusion?

    • fl_litig8r says:

      Title I funds do not convert a private school into a public one for purposes of Florida’s open government policy. For example, you have full access to all teachers’ and administrators’ personnel files under Chapter 119, Florida Statutes, for public schools. You don’t for private schools — receiving federal funds doesn’t make a school part of the Florida public school system.

      The fact that the door was open and that administrative staff may have heard what was said doesn’t really sway me. If this had been in a place where any member of the public walking by could have heard, like at a diner or in a park, I wouldn’t expect the general public to consider it a private conversation. Just being in a situation where the staff may have heard something doesn’t sound like it would be enough to remove the expectation of privacy.

      I would expect that a court would find that this recording was a violation of Florida’s wiretap law, but that’s just my opinion. I’ve done some research on the subject in response to your inquiry, but this is not an area of the law with which I claim intimate familiarity.

  18. Isabella says:


    Well I am still fighting on and the Judge just granted my Motion for the Court to help find me an attorney so I feel that maybe the Court thinks that I have some sort of claim.
    I have a cut of date coming up soon it is “Deadline to complete all fact discovery” O have research but have not found anything that O as a layperson can understand- could you please explain for me what that means.

    I am working on Admissions and Denials and I was wondering if I had to get the to the defendants lawyer before the “Deadline to complete all fact discoverys”

    I am on the understanding that while I am waiting for any attorney to take my case, if one will that the case just continues on as usual.

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


    • fl_litig8r says:

      Typically, an order like that means that the responses to your discovery must be due on or before the cut-off date. This means that you need to serve your discovery sufficiently in advance of the deadline (30 days plus “mail rule” time, if applicable) so that the other side’s responses are due by that date. It depends on the specific wording of your order, but all of the ones I’ve seen have been as I described. If you’re already too close to the deadline to serve new discovery, you’d need to seek an extension of that deadline. If you serve it so that the response is due after the cut-off, and you didn’t get an extension, the other side can just ignore your discovery (as you can do to them as well).

      The court sending out a pro bono notice to lawyers who are members of that court’s bar, telling them that you are seeking counsel, really doesn’t mean anything. I get these on occasion (most frequently for prisoners’ civil rights cases), and I imagine that 99% (or more) of them get ignored. Your case will proceed as planned, and if by some miracle a lawyer contacts you to represent you, he may ask the court to extend discovery (the notices typically mention that the court will hear such motions if the lawyer thinks he needs more discovery than the client has done).

  19. Isabella says:

    Thank you for your answer – wow you blew my mind about pro bob lawyers because my research showed that this motion is only for about 15-20% of the cases and only if the Judge believes that the case is “exceptional” bummer!!

    • fl_litig8r says:

      It may well be that they only issue such a notice in 15-20% of pro se cases (maybe even fewer), but I suspect the judges tend to issue them based not on merit, but on how long they think the pro se plaintiff can tie up their docket. It makes the court’s life easier when both sides have a lawyer, as pro se parties are more likely to file things that the court doesn’t recognize but still has to deal with. For example, I saw one pro se plaintiff tie up the docket for about a year after he lost his case with weird motions like “Motion to Set Aside Judgment in the Name of Justice” and “Motion for Mercy”, things that had no chance of being granted, but that the court still had to address.

      This isn’t meant to be a knock on you or your case. If anything, it’s at least an endorsement of the court’s belief that you’ll be able to keep this matter going for some time without getting dismissed or having summary judgment entered against you. So, take it as a compliment, but don’t get your hopes up about a lawyer taking your case based on that notice.

  20. Isabella says:

    Thank you for this added information – I now feel much better – I will fight this case pro se until the last breath in my body. I am also bolstered by the fact that the my Town has corrected their illegal violations of the Us and Florida Constitution and have stopped violating our Charter – I first told them of these violations in 2010 but the ignored me until May 25, 2014- I now can rest just knowing that I was correct in the accusations I presented in my complaint – again thank you

  21. Isabella says:

    I went to my deposition last Monday there were trying to intimidate me throughout the time I was speaking to them by repeatedly telling me they were going to put in a summary judgment against me – In my case the cut off date for filing all dispositive motions is July 31,2014 so I assume that is when they will put in the summary judgment- how long do I have to put in a motion to deny their summary judgment motion

    • fl_litig8r says:

      You may have already written this, but I can’t find a comment where you said what court you are in. I need to know if it is state or federal, and, if federal, whether you’re in the Northern, Middle or Southern district.

  22. Isabella says:

    I am in the District Court West Palm Beach -If I decide to write a summary judgment for myself I only have until next Thursday that’s almost impossible – but if forced I will just have to try
    Thank you for you quick response

    • fl_litig8r says:

      Under the Southern District of Florida’s Local Rule 7.1(c) (pdf warning), you have 14 days from the filing of a motion to file a memorandum opposing that motion. Note that there is also a local rule (same link as above) for summary judgment motions and responses, Rule 56.1, which requires that a summary judgment motion be accompanied by a separate Statement of Material Facts (stating which facts are undisputed, listed in numbered paragraphs) and that any memorandum opposing a summary judgment motion must include its own separate Statement of Material Facts, which tracks the numbered paragraphs of the movant’s statement and identifies any facts that are indeed in dispute (including citations to filings, such as depositions and affidavits that show that the fact is in dispute). Failure to include your own separate Statement of Material Facts disputing the defendant’s version will result in the facts he set forth being deemed admitted by you (Rule 56.1(b)), much like a defendant who fails to deny allegations in a Complaint has those allegations deemed admitted by him.

      Following the local rules, you therefore have 14 days from the filing of the defendant’s motion for summary judgment to file an opposing memorandum (and a statement of material facts which disputes some or all of the facts alleged by the defendant in its own statement of material facts). Your response isn’t called a motion. It would be called “Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment” — if there are separate defendants who file separate motions for summary judgment, you’d identify the specific one you are responding to in the title instead of generally saying “Defendant’s”. You can file supporting documents, such as depositions, affidavits and interrogatory answers through a separate “Plaintiff’s Notice of Filing Materials in Opposition to Defendant’s Motion for Summary Judgment”, listing each item you are filing on the notice and then filing all the materials at once. This should also be done by the time you file your opposing memorandum, though the court may technically allow such materials to be filed later (some courts, through a separate order, set a specific “advisement date” by which summary judgment supporting/opposing materials must be filed).

      In sum, no later than 14 days after a defendant files a Motion for Summary Judgment (and accompanying Statement of Material Facts), you will want to file:

      1. Your own Memorandum in Opposition to Defendant’s Motion for Summary Judgment,
      2. your own Statement of Material Facts, which opposes and tracks the defendant’s numbered paragraphs, citing specifically to supporting documents that show that the facts that the defendant claims are undisputed are, in fact, disputed, and
      3. a Notice of Filing all of the supporting materials (deposition, affidavits, etc.) you need to cite in your Memorandum and/or Statement of Material Facts.

      You may not want to file your own motion for summary judgment. Don’t do it just because the defendant is filing one. Most plaintiffs don’t, because their goal is merely to defeat the defendant’s motion and get to trial. Also, filing your own motion may work against you, because to make a case for summary judgment, you must allege that the facts underlying your motion are undisputed. To defeat the defendant’s motion for summary judgment, you want to claim that as many facts as possible are in dispute (and therefore must go to a jury). Filing your own summary judgment motion, and claiming that certain facts are undisputed, may hurt your ability to make the case that the facts cited by the defendant in its motion are in dispute.

  23. Isabella says:

    Good afternoon,

    I was deposed on July 21, 2014.
    On July 31,2014 defendants put in a Motion for Summary Judgment and attached were selected pages from my deposition all out of sequence.

    I have to reply in opposition to the Summary Judgment by September 2, 2010 and I am working on all day and every day.

    At the deposition defendants attorney told me that I would be sent a copy to read, correct and sign.

    It is 30 days and I have not even been advised by the defendants lawyer that the transcript is ready and I certainly have not received a copy.

    It is difficult for me to answer this summary judgment because I have no idea if I corrected my answers in the body of my deposition.

    I am thinking of trying to write a motion to suppress this deposition evidence – can that be done?

    I never waived my right to read and correct my deposition

    • fl_litig8r says:

      It’s not really the defense attorney’s job to tell you when your deposition transcript is ready to be read and signed. It’s the court reporter’s. You should contact the court reporter’s office about reading and signing. If you want a copy for yourself, you’ll have to pay for it — though it should be a fraction of what the defendant had to pay for the original.

      Unless you actually plan to change the parts of the deposition submitted by the defendant, trying to have it stricken due to it not being read and signed is merely delaying the inevitable. He’ll just re-file the same thing after you’ve been given a chance to read and sign. If you do file a motion to try to strike the transcript, or even a motion to have your response date delayed to give you time to read and sign, you should probably file an affidavit with it stating that you were never contacted by the court reporter and that you weren’t given the opportunity to read and sign yet. But again, unless you actually plan to make changes to the potions of the deposition that he filed, I don’t know how much good that is going to do you.

  24. Isabella says:

    Thank you I won’t waste my time then

  25. Isabella says:

    Oh what a day! – I went to mediation in the beginning I was in a room with 4 lawyers the Mayor of my Town and the Chief of Police of my Town – their top offer to me was $2,500 and I went home. They tried to convince me and the mediator that my case was dismissed by the court yesterday. I was at a complete disadvantage because I had not read the docket on the 26th, but thought if my case was dismissed why were we having a mediation.

    I drove home devastated and immediately went onto pacer and found that in fact that out of eight causes of action only two were dismissed with prejudice and the 6 were still viable and the court gave me permission to amend my complaint.

    I am so overwhelmed!! The question to you is that I have to present to the court my opposition to their summary Judgment by September 2, 2014 – but I need to know if I still have to do that now that the Motion to dismiss was really turned down.

    Also my case can really only be proven by the tape recordings and videos that I have – How can I get those attached to my opposition to their summary Judgment and how many can I attach

    • fl_litig8r says:

      To be safe, I would assume that the summary judgment deadline still stands, though the defendant’s motion is moot as to the two counts that were dismissed with prejudice. An amendment to your Complaint may affect summary judgment issues as well, depending on the nature of the amendments.

      With respect to your question about your recordings, to file things like tapes/CDs/DVDs, you’re going to have to do deliver hard copies to the court, as well as opposing counsel, along with a Notice of Filing (I’d call it Plaintiff’s Notice of Filing Video/Audio Recordings in Opposition to Defendant’s Motion for Summary Judgment). Label each item (tape, DVD, whatever) with an exhibit sticker, and identify each item by exhibit number in your notice. You’ll need to reference those exhibit numbers in your memorandum opposing summary judgment. I strongly suggest that you edit these recordings down to only those parts which are needed to oppose the summary judgment motion. The judge isn’t going to sift through hours of recordings to find the relevant parts for you. There’s no limit to the number of things you can file, but, as I said, don’t expect the court to listen to 3 hours of audio to find the 10 relevant minutes.

  26. James says:

    Is an initial tortfeasor liable for subsequent *negligence* during treatment of injuries suffered by the initial tortious action? In general, an initial tortfeasor is liable for subsequent *medical malpractice*. But, in this situation, the subsequent wrongful act was committed by a massage therapist, and at the time massage therapy was not a licensed profession in the state. Case law in the state clearly says that medical malpractice is only for licensed professions, and unlicensed professions fall under negligence. (I realize each state may answer this question differently, and am looking for your understanding of the situation, and know I’d have to do my own follow-up research to see if it applies here.

    • fl_litig8r says:

      If this massage therapy was not done pursuant to a doctor’s recommendation, then it’s questionable whether such care would fall under the general rule that an initial tortfeasor is liable for malpractice that occurs during treatment for accident-related injuries. The reasoning behind this general rule is that reasonable medical care is a foreseeable consequence of the accident and medical malpractice is a foreseeable consequence of said treatment. In the case of a massage therapist, if the plaintiff sought such treatment on her own and not pursuant to a medical recommendation, an argument can be made that the therapy was not reasonable and that a defendant should not be held liable for elective treatment by an unlicensed individual. This is an issue that could produce very different results from state to state, so I can’t say how it will play out this case.

      Clearly, not every act of negligence that occurs secondary to an accident is attributable to an initial tortfeasor. For example, if the plaintiff is injured in a car accident on her way to a doctor’s appointment for treatment from a previous accident, the initial tortfeasor won’t be held liable for the new injuries, even though the plaintiff never would have been in the second accident had she not been injured in the first.

      I can’t say whether your state would treat a massage therapist more like a medical provider or more like a subsequent negligent driver for purposes of attributing the new injuries to the initial accident. This is something that requires state-specific research, and may even be a matter of first impression in your state.

      • James says:

        Very good point. I left that important issue out. Primary doctor recommended chiropractic, and massage therapy due to muscle spasms. (Licensed) chiropractor had (unlicensed – state didn’t offer license at the time) massage therapists working in their office, and it was one of those massage therapists. In case it matters, we thought the massage therapists were employees of the chiropractor or their practice, but it turns out they were paid as independent contractors. Regardless, it was the chiropractor who billed insurance for the massage therapists. Does that make you lean more toward that the initial tortfeasor would be liable? (Of course recognizing each state could play out differently, and you have no way of knowing about my state.) And, why has my case already raised about 6 first impressions in my state? 🙁

        • fl_litig8r says:

          The fact that the massage therapy was done pursuant to a doctor’s recommendation makes me lean towards this being treated like subsequent medical malpractice. Of course, that’s just my opinion — your state’s caselaw may differ.

          With respect to why your case presents so many “first impressions”, know that I’ve come across so many issues in my tenure as a lawyer that one would think were clearly decided by now (because they must come up all the time) but weren’t, that it’s really mind-boggling. What it boils down to is that these issues are decided by appellate courts, so unless someone who had this issue decided in his case appeals the decision (and the appellate court issues a published opinion on it) the issue will remain open for future cases. Therefore, an issue which has come up hundreds or thousands of times before may still be considered a matter of first impression if no appellate court has ever ruled on it. When you think of the tiny percentage of civil cases which go to trial, and then take the tiny percentage of those which are appealed and factor in that not every appellate decision contains a full discussion of the issues on appeal (many just affirm without an opinion), it becomes easier to understand how so many common issues are still up in the air. Believe me, this is frustrating for lawyers as well ,but none of us particularly want to be the one who does all the work of an appeal to resolve the issue, perhaps obtaining a bad result that screws every plaintiff in the state — sometimes uncertainty is better than certainty.

  27. James says:

    If there were injuries from an auto accident, and later someone treating one of those injuries commits medical malpractice or negligence making one of those injuries substantially worse… And plaintiff filed two separate lawsuits, one for the auto accident, and the other against the subsequent person who treated the injury… And now wants to amend the auto accident suit to include the injury made worse during subsequent treatment… Does the plaintiff now HAVE TO file a motion to consolidate cases or for joinder of the cases? Does a plaintiff even have standing to file such a motion, having made the initial determination to file separate suits? Can the plaintiff decide to leave the cases separate, and leave it to a defendant to file such a motion?

    • fl_litig8r says:

      You wouldn’t need to join the two cases together. The defendant can move to have them consolidated if it chooses — it would definitely want to make the other tortfeasor a third-party defendant in its case for purposes of asserting a cross-claim for equitable subrogation (this type of claim would allow it to recover for any injuries caused by the third-party defendant for which it is being held liable).

      Assuming that you can assert the claim for the subsequent injuries, I would leave it to the defendant to consolidate the cases.

      • James says:

        Excellent. Three (hopefully easy followups.) I recognize it may vary per state, but with the understanding you have in the jurisdictions you’ve practiced in… (1) If a defendant moves for consolidation, which judge hears the consolidated case? Both cases are being heard in the same circuit court, but by different judges. One case was filed about 6 months before the other, so I assume the judge hearing the earliest case would continue with the consolidated case. Or, does it matter which case has a defendant move for consolidation? My state’s court rules allow for consolidation and joinder, but don’t specify how to handle separate judges. (2) Should defendants be able to obtain costs if they are the ones who consolidate? Or, did we have the right to file separately? (3) If we (plaintiffs) are the ones who ask for consolidation, should that affect the issue of costs? We very well may prefer to combine these.

        • fl_litig8r says:

          The defendant can only move for consolidation in the case to which it is a party. The judge on that case will hear the issue. How they are consolidated and which judge keeps the case moving forward is something that would likely take the longevity factors into consideration — one wouldn’t expect a judge who had a case for a month to take over one that’s been going on for over a year.

          I’m not sure what you’re getting at with the costs question. To what costs are you referring?

  28. Isabella says:

    Good Evening,

    It’s been a long time since I ask your advice- good news and bad news. Bad news fell had a severe concussion and complex fractures on each side of my right wrist which needed an operation.

    Good news Defendants put in Motions to Dismiss which were denied then they put in summary judgments against me on behalf of the Town and Individuals both denied; and I was allowed another Amended Complaint which I completed and filed on November 3, 2014 –yippee I am still in there!.

    Now on November 21, 2014 both I and defendants have to file joint pretrial stipulations

    The Defendants did not contact me so I e-mailed them today and asked if they would like to see my stipulation to see if they agreed with them – should I do this? I know that I cannot put in a stipulation as a stipulation if they defendants don’t agree to stipulate- and then I will have to do a unilateral stipulations.

    Are the stipulations that I list things that I do not think that they can defend?-Almost all of my evidence are public documents and our Town Charter and they cannot really be denied.

    I have researched a little and some people included a copy of the full docket sheet- is that necessary?

    Would be grateful for any input

    Thanking you in advance for any help you can give


    • fl_litig8r says:

      Typically, the plaintiff initiates contact with the defendant (as you have) about the pretrial stip. Usually, one side will agree to prepare the first draft (in this case, you may want to see if the defense attorney wants to, because he’s paid by the hour), and the the attorneys work out revisions in person or via conference call. Don’t expect any major concessions. Usually, the stip identifies only the most benign issues of fact as being stipulated to. As to what else needs to be contained in the stip, there should be an order specifically laying out the requirements. Usually it will have numbered lists of facts stipulated to, facts which are contended, issues of law stipulated to and issues of law which are contended. It may also include witness and exhibit lists from each side, with the opposing side’s objections, and other miscellaneous things like a brief overview of the case. It really depends on what your specific court requires. I don’t see the point of including a docket sheet, though.

  29. Isabella says:

    Hi it me again,

    Good news court said that I have causes of action- denied none
    they have told the Defendants to answer my complaint by November 25, 2014- can’t wait to see it

    I sent them my list, and it is very long, of my stipulations but they have not contacted me – if the do not contact me do I just go ahead and send them to the Court- deadline November 21, 2014.

    thanking you in advance for any help that you can give me

    • fl_litig8r says:

      You should really be the one to initiate contact with the defense attorney about the stip. That means calling him, not just sending letters, e-mails or other correspondence. If he doesn’t take your call or doesn’t call you back, then I’d say you should file your version on your own, indicating within the stip the attempts you made to confer with him. The court won’t look kindly on a half-hearted attempt to hammer out a stip together — it will be pissed at both of you unless you show that you made a solid effort to meet with the defense attorney and he just blew you off. That means making phone calls, no matter how uncomfortable you may be speaking to him.

  30. Isabella says:

    Ok I will call him tomorrow – thank you

  31. Isabella says:

    Good afternoon

    Well the defendants answered my amended complaint and denied everything and demanded that I prove my accusations – which to me a lay person is pretty strange because all of documents are public documents of the Town and can’t be proven to be lies – but I will worry about that when I have to.

    At the moment I am preparing my Evidence List and my question is do I have to list evidence that I want to use as rebuttal should the defendants lie about a question I ask them or do I keep that to myself.
    The trial is set for February 9, 2015
    Thanks for any help you can give me

    • fl_litig8r says:

      If they’ve answered the different allegations in the Complaint with “Denied and defendant demands strict proof thereof” (or similar language), that’s really just boilerplate language some lawyers use and not anything specific to your case. Most lawyers just go with “Denied” because the “and demands strict proof thereof” part is really superfluous, but some lawyers like being dramatic.

      With respect to your question about the evidence list, I would list everything just to be safe. Even if you were allowed to present evidence not included on the list solely for purposes of rebuttal (and sometimes this need will arise should something unexpected happen at trial), why risk having a judge ruling otherwise?

  32. Frank says:

    Opposing counsel is representing a person and that person’s business, and is asking for dismissing the person individually. Am I allowed to basically say I don’t believe the person should be dismissed, but I’ll trade you that if you don’t argue “X” against me? The person who owns their own business would have to make the call, and since their business only operates through them as the only owner, I don’t really see it as a conflict of interest for the attorney. Ultimately, I’m not asking if there’s any chance they will accept (especially because I haven’t said what “X” is)… I’m asking if I’d get in trouble by making the offer. If it matters, both whether the person is liable personally and “X” are debatable issues. If such agreement is made, and I wanted to keep “X” out of the court file and stipulation to dismissal, could there be a private agreement with a confidentiality clause not filed with the court, and ultimately just a dismissal saying there was an agreement, without specifics?

    • fl_litig8r says:

      It’s really hard to say without knowing what “X” is. For example, if you were offer to stipulate to the dismissal in exchange for them waiving a statute of limitations or personal jurisdiction defense, I wouldn’t see a problem with that. Because the interests of the business owner and the business itself are aligned, I agree that there’s probably no conflict of interest (assuming that he is the sole owner of the business). I’m having a hard time envisioning an “X” that would present a problem, but without knowing exactly what “X” is, I can’t say for sure that it won’t be.

  33. John says:

    Defendant filed a motion. I agreed to stipulate with two modifications. He agreed, saying the 2 modifications didn’t matter. He said he would file a stipulated order with the two modifications. After that he got upset about an unrelated issue and now is proceeding to argue against the modifications. Can an attorney do this, or once verbal agreement is made, is that binding? (Assuming he admits rather than denies agreeing.). I’m thinking until an order is signed and filed he can do this – just hoping he can’t.

    • fl_litig8r says:

      He agreed to the modifications just to obtain your stipulation. If he no longer cares about your stipulation, and is willing to argue the motion over your objection, he can abandon those modifications. What he can’t do is submit the stipulation without modification and still say that you stipulated to it. He didn’t make a contract to file his stipulation with your modifications. At best, what he agreed was that he would only file it as a stipulated matter if the modifications were made.

  34. Isabella says:


    When do I have to give my evidence to the defendants and can I add more evidence that I have found?

    • fl_litig8r says:

      That’s kind of a broad question with a lot of potential answers. Generally, you need to give them your evidence in response to a discovery request by them and/or in response to a court order (usually a pretrial order) requiring an exchange of proposed evidence to be used at trial. As long as there isn’t a court-ordered cut-off for identifying new evidence (again, usually in a pre-trial order), you can supplement your prior disclosures any time.

  35. Isabella says:

    Thanks – that makes me feel good because I am not yet firing on all pistons and I left out lots of important evidence and I was afraid I would no be able to get it before the jury
    thanks again

  36. Randy says:

    Is it possible to communicate off the record to an uninsured co-defendant that it is your intention to only collect from them as a last resort, if the insured defendant’s insurance somehow falls through paying? (In a derivative liability case.) I really want to be a nice person and do this, but I’m thinking there’s nothing truly off the record. Maybe a written agreement even saying that a single communication after the agreement will be confidential, never asked about in discovery, never to be repeated?

    • fl_litig8r says:

      Parties can communicate with each other all they want, even when they’re both represented by counsel. It’s never recommended, but there’s nothing “wrong” about it (unlike an attorney speaking directly with a represented party, which is unethical). You, as a party, can speak to an unrepresented party all you want.

      The second part of your inquiry about somehow contracting with this party to keep your communication confidential is a non-starter, though. You can’t contract away the other (third) party’s right to discovery. If that were allowed, every party would enter into confidentiality agreements with other people to avoid talking about anything related to the case. Plus, the idea of creating evidence (your written confidentiality agreement) of a clandestine discussion is just a bad idea in general. Why create a record of the fact that you two had a discussion? You’re right that there’s no such thing as an off-the-record discussion (outside of mediation, at least).

      The bottom line is that you can let him know your intentions and just not commit anything to writing. There’s really nothing the other party can do about it even if they were to learn what you plan to do. It doesn’t give them any additional defense to your claim. I’m not sure why you see the need for the cloak and dagger stuff. You’re not doing anything wrong, or even that unusual.

  37. Isabella says:

    Hi and wishing you a very Happy New Year,

    Because I missed the deadline for admit or deny questions and 99.999999% of my evidence are Public Records I was thinking of asking for Judicial Review of all the illegal acts done by defendants and Town that cannot be denied because they are documented in the Towns Public Official Records.

    90.202 Matters which may be judicially noticed.—A court may take judicial notice of the following matters, to the extent that they are not embraced within s. 90.201:
    8) Provisions of all municipal and county charters and charter amendments of this state, provided they are available in printed copies or as certified copies.
    (9) Rules promulgated by governmental agencies of this state which are published in the Florida Administrative Code or in bound written copies.
    (10) Duly enacted ordinances and resolutions of municipalities and counties located in Florida, provided such ordinances and resolutions are available in printed copies or as certified copies.
    (11) Facts that are not subject to dispute because they are generally known within the territorial jurisdiction of the court.
    (12) Facts that are not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.

    1) I understand that a Judicial Review can be presented at any time.
    2) Can I only ask for review of evidence I have already presented to the Court. I have put in lots including Recordings of Town Hall Meetings, videos of how they treated me and only me in the public comment section, video of me being removed from Town hall for speaking from the audience when other people who acted in a “mob like behavior” were not. Illegal Ordinance which changed our Form of Government without a referendum in violation of the Charter and State Statute 166.021(4) their documented abuses go on and on.
    They asked for a continuation of the trial which was to start on Feb 9, 2015 and it is now to start March 30, 2015. I was unopposed because I need all the time I can get before I actually go to Court and also I was researching the Judicial Review option.

    Thanks for any input you may give me.

    • fl_litig8r says:

      When you say you missed the deadline to admit or deny questions, I’m assuming you mean you failed to timely respond to a Request for Admissions. I’m not sure what this has to do with your desire for the court to take judicial notice (and it’s “judicial notice”, not “judicial review”, FYI) of your records, but the best thing to do if you missed a deadline to respond to Request for Admissions is to seek leave of court to provide an untimely response. While Requests for Admissions are kind of designed to be a “gotcha” discovery tool, in practice, courts will often allow untimely responses because public policy favors cases being decided on their merits rather than based on procedural technicalities.

      As far as you requesting that the court take judicial notice of your records, what is the purpose of it doing so? You can’t just file a mess of documents and expect the court to do anything with them unless you specifically request it to take action via a motion. In your case, I assume what you want is summary judgment or partial summary judgment on certain issues. Therefore, in addition to any motion you file asking the court to take judicial notice of certain records, you need to file a concurrent motion asking it to do something using those records — again, I assume that what you want is summary judgment.

      I think you have a misunderstanding as to what a motion for judicial notice accomplishes, because you seem to want to ask the court to take notice of records you’ve already filed. A motion for judicial notice will not cause the court to take any action based on whatever information you’re asking it to take notice of. That’s why you need to request it to take action via something like a motion for summary judgment. I don’t even know that you need to ask the court to take judicial notice of anything if you’ve already filed everything you want it to take notice of. You can just request summary judgment and refer the court to the documents you’ve filed.

  38. Isabella says:

    No I was never presented with any admit or deny questions. I believed that all discovery ended on when the scheduling order stated all dispositive discovery had to end on July 30, 2014- so I thought I could not send them my admit or deny questions after that-am I wrong God I hope so.
    Because I truly believe that they would be in serious trouble if they answered my questions honestly I was looking at anyway that I could find to try and shorten this trial – in the last 3 months after my concussion and fractured wrist it has been somewhat overwhelming but I am feeling better now and have no intention of stopping until the Court throws my case out.
    I admit understanding discovery limits and deadlines is a challenge to me – I would do anything to get these Admit or Deny questions to these defendants – can I ask for an extension of time to send them to them.
    99% of my questions to them cannot be denied because we are a Charter Town and this Town has been run by multiple violations of our Charter for over 10 years and I can prove it by the Town’s own docs!! They cannot deny their own documented, recorded and videoed abuses of our Charter- it’s the supreme law of our little Town. I have collected evidence against them for over three years before I went to trial and for years I have informed them that they were violating the Charter and Statute 166.021(04) and they completely ignored me so I was forced to sue them – the last time I told them that the Planning Board was illegally constituted was just 16 days before they allowed the Planning Board to sit and deny redevelopment of our hotel so they cannot plead innocence!!
    On 12/16/14 the defendants requested a continuance of the trial because a previous Summary Judgment of theirs was not adjudicated and made moot because of a Recommendation by the Magistrate Judge that denied their Motion to Dismiss- only two of my causes of action were dismissed and the report gave me another chance to amend my Complaint which I did- the Federal Judge agreed stating again that I did indeed have the Causes of action as suggested by the Magistrate Judge and told them to answer which they did by denying every line of my complaint but not offering any evidence against my statements in my complaint in their answer they also stated in their answer They state in that document “Plaintiffs remedies are limited or barred by after acquired information” I have this evidence for years !!The Motion for continuance by the defendants was headed “DEFENDANTS’ MOTION TO CONTINUE TRIAL AND SET DISPOSITIVE MOTION DEADLINE” and it was granted.
    I am fighting to stop 33 condos being built on the site of a very old hotel which was the only piece of beach that was open to the public in this Town since1964. 379 units in this Town do not have their own access to their own beach because of the beachfront condos- I don’t have to worry about it really because I have a deeded access to the beach but I am very upset that they took the only recreational site in our Town. All actions taken by Planning Boards regarding denying the Hotel being redeveloped and permitting the 33 condos were done by Planning Boards that were all appointed in violation of our Charter and Statute 166.021(4) which to my understanding makes them illegally constituted boards and everything they have done should be made null and void and there is no way that they can deny it!! I believe that the process regarding our only commercial site should be started again from the start – 773 residents signed petitions to have some redevelopment to the old hotel which were ignored.
    I am fighting to keep the only open space in this Town open to the public so they can sit as they could since 1964 and enjoy the entertainment and restaurant access and enjoy the ocean and the beach that they help pay for; there is no way just another 33 new unit owners should be allowed this privilege. Every step that was taken by the Town was illegal.
    In all of their Motions to dismiss or Summary Judgments they have never addressed or even mentioned the violations of the Charter or that fact that I am claiming that the Planning Board was illegally constituted they only argue in force about my causes of action for violations of my First and Fourth Amendment.
    I have put in an injunction to have the building of the 33 units from being built and the Judge did not deny it they told me to bring it up later because the timing of the request was not at the proper time within the process.
    A 20 story building in West Palm Beach was brought to a halt by a Judge last week because of some illegal steps taken by the Town regarding their permit process – I will bet my bottom dollar that the violations would never the ones taken by our Town!!
    Though I am sending you this on a Saturday I certainly do not expect you to answer it on your days of rest – any input would be appreciated when you have time

    • fl_litig8r says:

      I think you overestimate the usefulness of Requests for Admissions and the penalties for denying something which should have been admitted. In your case, the defendant can deny everything you ask, even if it’s blatantly obvious that what you ask should be admitted, and the only penalties it would face under Fed.R.Civ.P. 37(c)(2) would be having to pay whatever expenses you incurred in later proving the matter at trial. Because you have no attorney, these expenses would likely be quite small. Also, even this meager penalty is not automatic. It is within the discretion of the court to grant or deny. Therefore, I don’t think it would be worth the effort to try to re-open discovery just so you can serve Requests for Admissions. I doubt that the court would re-open discovery anyway, but if it did it would likely result in a further delay in your trial date and would likely allow the defendant to plague you with more discovery as well. If the matters you wish to prove are as black and white as you say, you should just prove them at trial.

      It sounds like the court set a deadline for dispositive motions which has now passed, so ignore my earlier suggestion about moving for partial summary judgment. It’s too late for that now. This is another reason why you shouldn’t try to re-open discovery. If you can’t use what you get through any requests for admissions to get partial summary judgment on those issues, I don’t see the point in even trying to get the admissions. Maybe they’d be useful in trying to obtain a directed verdict, but I’m not sure they would be because I don’t know if these issues even go to the heart of your case. If the defendants never addressed these issues you mentioned in their motions for summary judgment, these issues may not even be relevant to the disposition of the case. I am concerned that you may not have the claims you think you have before the court. How are these issues relevant to your case? Is this a “takings” case or a procedural due process case?

  39. Isabella says:

    Last month the defendants’ requested a “MOTION TO CONTINUE TRIAL AND SET DISPOSITIVE MOTION DEADLINE” I agreed to that. The Court agreed and stated within the Courts document’ “January 20, 2015- All pretrial Motions, including Summary Judgment motions and Daubert motions, shall be filed.
    After the motions were extended to January 20, 2015 I researched and researched to see if Admit or Deny was considered a Dispositive Motion. I could find what dispositive motions meant but no definitive yes or no as to Admit or Deny being one. But I believe that you are confirming that an Admit Deny Document is indeed a Dispositive Motion so therefore I will have it with the Defendants lawyers within days.
    I am not interested in getting them sanctioned I am only concerned to get as much documented evidence against them as possible – in other words if the deny something that is blatantly obvious and should have be admitted and I can prove with the Town Documents I could just question them at trial about it (if that is allowed) I am definitely a belt and braces kind of gal. At this moment the defendants have only taken one deposition and that was me. They have not asked for anything more from me.
    Our Town is a Home Rule and the Charter of our Town is considered the supreme law that can only be supersede by the U.S. and Florida Constitution or the Courts. My years of research of this Town is that for ten years our Charter has been violated , not on silly little things but massive abuses that has turned this Town into their own little fiefdom. We have a Weak Council / Strong Manger but that has been ignored and the Mayor and Council have taken over the Managers administrative duties. This was down by an Ordinance without a referendum of the Towns registered voters which are in violation of Statutes 166.021(04); 166. 021(4) and of course our Charter – which states clearly that the Charter cannot be changed without a referendum. I will be asking them very simple such as a) when you were appointed to the Council/Mayor you aware that this was a Charter Town; b) did you understand what that meant c) Did you read and understand all of the Town Charter d) did you understand that you had no rights under the Charter to nominate and appoint Board appointees e) did you understand that under our Charter that the only person with the Authority to recommend and remove Board Members was the Town Manager and that you do not even have the power to disagree or question any of his appointees or removals e) On Oct???? Nov ??? (This went on for 6 years) did you and the Council choose nominate and appoint Boards Members without input from the Manager in violation of the provisions in the Charter. I could go on and on that and I believe that they will be in trouble either if they admit or deny the question. They cannot claim naiveté because I have multiple documents and videos of town Hall Meetings that prove that I informed them that they were acting in violation of our Charter.
    I went to the OIG have started an investigation into the Town. In Contract Oversight Notification: No. 2014 –N- 0124 – Dated– August 5, 2014 – Finding: a) Commission of Highland Beach did not comply with the legal requirements to amend its Charter. B) Municipal Home Rule Powers Act, Chapter 166, Florida Statutes. Statute 166.031(1) Florida Statutes requires, with few exceptions, that a public referendum is required to change a Municipal Charter. This Notification also clearly states that because the Charter was changed illegally all provisions in the Charter stay the same. My quest is to have the Planning Boards that were cherry picked and illegally appointed in this Town since 2006 to be found illegally constituted and that all actions taken by them since 2006 are declared null and void. I want the process to start again from the beginning with an independent unbiased set of Planning Board Members who do not have conflicts of interest and should never have been appointed to the Planning Board even if it had been done legally. At the moment a company has the permit to build 33 condos on this land I will fight for as long as I can to try and stop that happening because of the illegal actions taken against the previous owners who wanted to redevelop the hotel and keep this very small area of the beach open to the public – they and the residents of this Town were robbed of their due process of fair proceedings.
    This is an example of just how corrupt this Town Government and Attorneys are; In June 2013 I sent a letter of intent to sue separately to the Town Mayor and Town Manager – just recently I requested a document as per my right under Statute 199 and I was informed that According to the General Records Schedule GS1-SL for State and Local Government Agencies – Item #4 states: “Minutes: Official Meetings (Preliminary/Audio Recordings/Video Recordings) –- Retention: 2 Anniversary years after adoption of the official minutes or certification transcript”. Ms. XXXX Former Town Clerk, did a Records Disposition on October 8, 2013 for Official Meeting Minutes (Preliminary/Audio Recordings/Video Recordings (Town Council/Town Boards) from 06/23/1955 – 09/30/2011. They had never destroyed any records since 1955 but destroyed them all after they had received my letter to sue. On the Records Disposition Document sent to the State with regards to this mass destruction of almost the whole history on this little they did not complete question No. 4 which reads Submitted By: “I hereby certify that the records to be disposed of are correctly represented below, that any audit requirements for the records have been fully justified, and that further retention is not required for any litigation pending or imminent”; they did not certify and sign to this question. The incomplete form was signed by the Town Manager, the Town Clerk and the Deputy Town Clerk. The Town Manager and Town Clerk are two of the defendants in my case.
    My cause of actions started off with 8, the Court dismissed 2 and I am left with; Count One – Right To Free Speech – Federal First Amendment; Count Two – Right To Petition – Federal First Amendment; Count Three -Federal Equal Protection – Class Of One; Count Four Federal Fourth Amendment Violation For Seizure Of Plaintiff October 25, 2011 And Violations Of Her Federal First, Fourth And Fourteenth Count Five -Violations Of 42 U.S.C.1985; Conspiracy To Violate Civil And Political Right Amendments; Count Six – Abuse Of Official Power / Violation Of Substantive Due Process.
    I am nervous about having to go to trial but I am not frightened – I think I have the right to be nervous because at mediation there were 5 lawyers for the defendant – Two for the Town and individual defendants ; Two from the Florida League of Cities who I believe are the Towns insurance carriers and one of the Town Attorneys who I am suing – the other Town Attorney that I am suing is the General Counsel for the Palm Beach County League of Cities, Inc. and yet she sat and allowed all of the abuses from 2006 until 2013 and so did the other Town Attorney- even when I brought these violations to their attention they took no steps to rectify the damages done; in fact she wrote the illegal Ordinance that changed our form of government.
    They go around the violations of Statues and our charter because they cannot deny them.

    • fl_litig8r says:

      No, Request for Admissions are not a dispositive motion. “Dispositive motions” refers to motions for summary judgment or partial summary judgment. You can move for summary judgment if you think you have sufficient documents to prove undisputed facts that entitle you to judgment as a matter of law on one or more of your claims, but you can’t conduct any more discovery without leave of court — which, as I said, I don’t think it would be worth it to obtain.

      I’m still pretty fuzzy on how your facts fit into some of your various counts, as it seems that some of the relief you actually want might have been better pursued through a writ of mandamus or prohibition in state court, which could give you problems in a procedural due process claim, if that’s included in any of your counts. There’s an awful 11th Circuit (our circuit) case called McKinney v. Pate which makes a mockery of procedural due process by requiring that a plaintiff be denied process by the state for a violation by a local government entity before a constitutional claim arises. In other words, the 11th Circuit imposes a de facto “exhaustion of state remedies” requirement for procedural due process claims (something that isn’t required under well-established federal caselaw) by claiming that you haven’t been denied due process by, say, a town, unless you pursued procedural remedies from the state first and were also denied. This doesn’t apply to substantive due process claims, but those in and of themselves are incredibly difficult to prove, especially when they aren’t based on a fundamental right, but rather on arbitrary and capricious acts by the government.

      I really don’t envy you in trying to prove this case. It’s not that I don’t believe your facts, but rather I fear you’ve entered an extremely convoluted area of law, which is made even worse by the fact that you’re in one of the worst federal circuits for constitutional claims. I really hope you’ve done your research, because this is a case that would probably make most lawyers’ heads swim with its legal complexity. I’m sorry if I’m making your anxiety worse, but you need to be ready for some seriously confusing arguments to come your way. I have a feeling that the defendants will be filing a very long motion for summary judgment on the last day possible (this is common because lawyers procrastinate when it comes to onerous motions like these). It’s going to be a beast to respond to.

  40. Isabella says:

    Thanks and I understand your concerns – what I don’t understand is why my case has not been thrown out already. It has survived a motion to dismiss and the last notice dated 11/12/14 stated “Upon review of the complaint, the Court finds that the Plaintiff has stated a claim under Federal Rules under the more lenient standard applied to pleadings filed pro se litigants”.
    One more question I thought a summary judgment was limited to 20 pages – that’s what their last one was.
    Anyway, thank you so much for all the time you have spent on me – I will keep plodding on and I will let you know what happens good or bad.

    and I was asked at mediation what else I had done to before

    • fl_litig8r says:

      Many courts have local rules limiting the number of pages for memoranda supporting motions, so there probably is a 20-page limit on their summary judgment motion. Of course, they can ask for leave to file more than that, but even a 20-page motion can be a beast to respond to if it contains little fat.

  41. Isabella says:

    By the way I am suing the people with regards to Public Documents for conspiracy not to get the docs. Fortunately for me I have collected enough evidence for my case -even 17 recordings of Town Hall Meetings-and I have many private videos of their abuses of my First Amendment rights.Problem for the defendants lawyers is that they cannot get evidence because it has all been destroy by the Town before I actually put the complaint into the Court.

    • fl_litig8r says:

      I’ve also dealt with government agencies who suddenly decided it was time to destroy documents after not having done so for a decade or more, just because they were afraid of things that might relate to a lawsuit I had notified them of. You may be able to use a spoliation of evidence argument to allow the finder of fact to draw inferences against the defendants if they did not follow the proper procedures for destroying public records. Basically, if you win the spoliation argument, the fact finder can assume that whatever was in the destroyed documents was damaging to the defendant’s case, even if in reality it wasn’t.

  42. Sam WC says:

    Thank you. Just reading some of the questions/answers… has been extremely helpful. God bless you.

  43. Isabella says:

    Hi again,

    I am working on my Motion to Deny the defendants Summary Judgment and I have a question; I have presented to the Court many many exhibits and I was wondering if when answering this document instead of giving the court more copies of the same document can I tell them to refer to the docs already with the court – In my research I have seen mentions to refer to documents by the docket numbers- if yes is there a special way it has to be written.

    also do you know of any limitation to how many material facts I can attach to my request to deny.


    • fl_litig8r says:

      You can just reference records that have already been filed with court using the document number on the court’s docket. Referencing specific pages is advised, as well, so if you want to cite page 5 of document 23, you’d write (Doc. 23, p.5) after the assertion supported by that reference. If you need to file new documents, you can use an Appendix to your motion and cite to that (Appendix A, p.5) or use a separate notice of filing and refer to that.

      I don’t know what you mean by a limitation on how many material facts you can attach. Typically, when responding to a movant’s statement of undisputed material facts, you’re just attacking the undisputed nature of the facts they’ve claimed. You’d go line by line, if they numbered them, and say why certain thing are disputed, citing the conflicting evidence. Introducing a whole set of new “disputed facts” which the defendant isn’t claiming are undisputed usually does you no good. The defendant is claiming that he is entitled to judgement based on his undisputed facts alone — meaning that other things may be in dispute, but as long as his cited facts are undisputed, he still gets summary judgment. It’s best to focus almost solely on his facts, so I’d imagine the length of your statement of dispute facts would be roughly the same as his statement of undisputed facts. If you’re talking about a page limit, that would be governed by your local rules or a separate court order.

  44. Isabella says:

    thank you so much I want to tell you I research and research before I write because I know you must be a very busy man- thank you again


  45. Isabella says:

    Previously I had written to you that the TOWN had destroyed all of the Towns Town Hall Meetings and all public document from 1955 until 0ctober 2011 although they were well aware that I was going to sue them.
    I complained to the Court and this is what she did: PAPERLESS ORDER denying Plaintiff’s 86 Motion/Request for Information and Guidance from the Court. To the extent that the Motion attempts to bring new causes of action before the Court, it is moot per the Court’s 87 Order Adopting Magistrate’s Report and Recommendation and untimely, as the deadline for amending the pleadings has passed. To the extent that the Plaintiff attempts to raise matters pertaining to evidence and discovery, the Motion is denied without prejudice. Plaintiff may raise these issues again once she has filed an amended complaint that requires an answer due to its compliance with the federal pleading standards.
    Can I raise this issue in my motion to deny their Summary Judgment or should I request action by writing to the Court again.

    • fl_litig8r says:

      From what I can gather, the court is saying that it interpreted your motion as a new claim for damages based on the town’s destruction of records. It denied it because such a claim would need to be brought via an amended complaint, and the deadline for amending your complaint passed. It does seem to leave the door open for amending the complaint past the deadline, assuming you file such a motion and show good cause why the untimely amendment should be granted, but I would bet that it would deny such a request to amend unless there was a really good reason why you couldn’t have brought it before the amendment deadline.

      What it said about “matters pertaining to evidence and discovery” says to me that you can still make arguments about the destruction of the records, such as a spoliation of evidence argument, in the proper context. For example, in your response to the town’s motion for summary judgment, you could argue that the court should draw a negative inference against the town based on information that would have been shown in records the town improperly destroyed. Of course, you’d need to show that the records were improperly destroyed. You’ll need to research spoliation on your own (pay attention to the spelling — it’s not “spoilation”) because it’s not something I can easily explain without writing what would amount to an entire chapter of a book on the subject.

      The court also appears to be open to any arguments you may have that the destruction of records were a discovery violation. For example, if the town destroyed records after you requested them through discovery, or the town claimed that records were destroyed in a discovery response and they weren’t, you can raise those issues through an appropriate motion.

      That’s how I read the court’s order. For purposes of your summary judgment response, a spoliation argument based on the destruction of the records would be the angle that I’d try to take, assuming I could prove that the destruction was spoliation.

  46. Isabella says:

    Thank you so much I have all the documents that they signed and sent to the state. I also have an e-mail confirming it (it was very obnoxious and inappropriate) little did they know I would immediately see that they had lied on the paperwork and had not certified and swore that they were not in litigation. Fortunately for me I have boxes of evidence and paperwork (OCD LOL) against them and Town Records that prove that I was targeted – but because all of these things were destroyed 6 months before I put in my claim the defendant and their lawyers cannot get anything – what goes around comes around. I wanted to get more recording but of course I could not so that’s how I was thinking of getting the “spoliation” into my motion to deny summary judgment I believe there is also some sort of Jury instruction that I can request called “adverse actions” or something like that – thanks again

    • fl_litig8r says:

      Yes. Spoliation can be used both in your opposition to their summary judgment motion and to obtain a jury instruction telling the jury that they can draw an adverse inference from the improper destruction of records.

  47. Isabella says:


    Well I answered their summary judgment and they have made their response so now I have to wait.
    But meanwhile I am preparing another Pre Trial Joint stipulation to be in by March 3rd.

    My question is are there limits on how many Uncontested facts that I present on a pre trial joint stipulation – all the facts that present as uncontested are proven by public documents, town Hall recordings of Town Hall Meetings and videos.

    Thank you for any help you may give me.

    • fl_litig8r says:

      Technically, there is no limit. Realistically, it will be limited by the relevance of such facts, and if this is a stipulation where you are listing facts that both sides agree are uncontested, the agreement of the defense. I understand your point about them being matters of public record, but the other side can still claim that they’re contested if this is a stipulation. I wouldn’t let that concern me too much. If the matter is truly as clear as you say, just prove it at trial with the records. You don’t need all your facts to be stipulated to. If every fact had to be stipulated to, we wouldn’t need trials. What I’m trying to say is, don’t get upset if the other side won’t stipulate to your facts. It’s not necessary that they agree to them in the pre-trial stip for you to prove them at trial.

  48. Isabella says:

    I have one question regarding my evidence scanned and sent to the defendants – I have dozens of Town Hall Meeting Minutes some of them up to 11- 12 pages – can I just send the relevant page that covers my stipulation or do I have to send the complete minutes. Please God let it just be one page!!!


    • fl_litig8r says:

      If you’re only planning on introducing part of the records into evidence, you can just submit the relevant pages. If the other side wants the whole transcript put into evidence, they can do it themselves.

  49. Isabella says:

    Thank You! Thank you! Thank You!

  50. Isabella says:

    Was really side swiped when I checked the Docket List yesterday. A Magistrate Judge (the 3rd so far in my case) wrote an order DIRECTING PARTIES TOPROVIDE SUPPLEMENTAL BRIEFING.

    Within this document he points out that the defendants have never claimed Legislative Immunity and states cases which may cover the defendants’ rights under this law- and he encourages them to go forward with this defense.

    1) Can a Judge do this – he never gave me any information of what could help me!!

    2) I have spent hours researching Legislative Immunity in Florida and it always comes up is Sovereign Immunity – are they the same?

    3) Statute 766.28 covers that

    Also this Town has Liability Insurance which I believe means they have waivered any immunity.

    If this Town is let off the hook by legislative immunity it means that the multiple abuses over ten years will be forgiven and that they have every right under the law to do just as they wish – this would be unbelievable to a lay person!!

    As we say in England I was “gob smacked”.

    • fl_litig8r says:

      1) Yes, a judge can prompt one side who missed an issue to brief that issue. It doesn’t happen often, but it can and does happen. It’s kind of like the judge telegraphing to one side “Hey dummy, you missed an issue which would help me dispose of this case a whole lot easier”. I would be concerned about this, because it certainly indicates the leanings of the judge on that issue, but there’s nothing you can do about it. As an aside, if they didn’t plead legislative immunity as an affirmative defense, I’d argue that it was waived.

      2 & 3) They aren’t the same, though there can certainly be times when the two overlap. Legislative immunity is analogous to the “absolute immunity” judges enjoy against suit for things they do when acting within their jurisdiction. For example, a judge who sentences a criminal to an unlawfully long sentence can’t be sued for that under absolute immunity as long as the judge had jurisdiction to hear the criminal case to begin with. For legislative immunity, it’s immunity from being sued for things they do within their legislative capacity. For example you can’t sue them for failing to pass a law or passing a law which creates a safety issue. The sovereign immunity statute doesn’t waive immunity for discretionary acts to begin with, so pretty much anything I can think of offhand that would fall under legislative immunity would be barred by sovereign immunity as well, because they are all discretionary acts.

      4) Liability insurance doesn’t waive immunity. It used to a long time ago for sovereign immunity purposes (to the extent of the coverage), but it doesn’t any more.

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