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.

Settlement tip

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.

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).

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.

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

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111 Responses to Seven Deadly Sins for Plaintiffs

  1. Isabella says:

    The illegal ordinance that I am arguing about changed our form of government without a referendum. It violated multiple provision of our Charter and Statute 166.021(4) by giving the Council the Power to cherry pick and appoint Planning Board Members who had their own agenda. this is a weak Council/ Town Manager Government and these administrative duties belonged only to the Town Manager- this went on and from 2006 until 2011 when they actually acted on the error when I pointed it out but it took them six months and I allowed an illegally constituted Planning Board vote down the redevelopment of our only commercial site. These acts caused great injustices to the Town and robbed all residents of their right to make changes to our Charter without a referendum.

    I am going to study the difference between administrative and legislative acts of a local Home Rule Town.

    Their only job description in in the Charter and they certainly worked out of the scope of it.
    Oh well back to my research!!

    Thanks

    Thanks

    P.S. I don’t believe that violating our Charter and Florida Statutes cannot be considered discretional acts

    • fl_litig8r says:

      Passing an ordinance is definitely a discretionary act (this term merely delineates between acts that are ministerial/operational in nature and those that require decision making), regardless of whether it violates a statute or town charter. However, that merely means that you can’t recover money damages for those actions under state law. Other relief may be available, such as injunctive relief. The argument that injunctive relief is still available would apply to both the sovereign and legislative immunity issues.

      Another possible argument on the legislative immunity issue, one which I haven’t researched (so take it for what it’s worth), is that the legislators were not acting within their legislative jurisdiction when they passed the ordinance — therefore judicial immunity does not apply. By way of example, using judicial immunity again, if a county court judge imposes an illegally long sentence on a criminal defendant whose case should have been in circuit court, that judge doesn’t receive absolute immunity because he had no jurisdiction to hear the case to begin with. One could argue that the limits on the legislative authority of the council created by the town charter and whatever state statute you are referring to are analogous to the limits on what types of cases different levels of judges can hear, making the council’s actions outside those limitations beyond their legislative jurisdiction. Again, this is just an idea which should be researched. I can’t imagine there are a ton of cases on legislative immunity, so if you don’t find anything either way on that argument, I’d use it and cite to cases involving judicial immunity (which should be more common) that seem analogous.

  2. Isabella says:

    found this today but have not fully researched it thought if applicable may help others who live in a Charter Town

    “The hallmark of a discretionary act is that it requires the exercise of judgment ․ In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).”In order to create a ministerial duty, there must be a city charter provision, ordinance, regulation, rule, policy, or any other directive [compelling a municipal employee] to [act] in any prescribed manner ․ [T]he threshold inquiry in determining whether a duty is ministerial or discretionary is whether there exists a directive compelling a municipality or its agent to act in a prescribed manner ․” (Internal quotation marks omitted.)  Coley v. Hartford, 140 Conn.App. 315, 323 (2013).   See also Violano v. Fernandez, supra, 323 (“the plaintiffs in the present case have failed to allege that the acts or omissions complained of were ministerial in nature because ․ the plaintiffs have not alleged that [the defendant official] was required by any city charter provision, ordinance, regulation, rule, policy, or any other directive to secure the property in any prescribed manner”).   Further, the Supreme Court has specified that “what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment.”  (Internal quotation marks omitted.)  Evon v. Andrews, 211 Conn. 501, 506, 559 A.2d 1131 (1989) (court deemed the allegation that “the defendants failed to make reasonable and proper inspections” discretionary).
    In the present case, it can be gleaned from the complaint that at the time of the plaintiff’s fall, no city charter provision, ordinance, regulation, rule, policy, or any other directive, regarding procedures for the defendant to assemble, or light, the stage had been established.   Specifically, the complaint alleges that the defendant “failed to adopt adequate measures to ensure the safety of invitees from the risks as alleged.”   To further support this notion, the defendant has submitted a copy of the affidavit of William McMinn, Madison Facilities Department Supervisor, who states, therein, “at all times relevant ․ the Town of Madison had no rules, policies or procedures regarding the use of the [stage].1  Furthermore, there were no federal, state, or local rules and regulations regarding the lighting the lighting to be provided for the [stage].”   In response, the plaintiff does not contest in her memorandum of law, nor present any evidence to contradict the notion, that no such procedures existed at the time of her fall.   Accordingly, the allegations of the complaint alone, which, not to mention, find further support from the assertions in the McMinn affidavit, make certain that this case does not satisfy the Coley threshold.   In other words, without a directive prescribing the procedures for assembling and lighting the stage, the defendant’s alleged failure to adequately light said stage was, as a matter of law, necessarily an exercise of discretion.   Furthermore, the allegation that the defendant “failed to make proper and reasonable inspection of the premises,” is, under Evon, discretionary as a matter of law.
    Our courts generally hold that once a municipal defendant, as the moving party in a motion for summary judgment on the ground of governmental immunity, has established that the plaintiff’s claim involves purely discretionary conduct, and thus the court determines that governmental immunity applies, “it is incumbent upon the plaintiffs to allege and provide an evidentiary basis for an exception to the governmental immunity that attaches to discretionary acts.”   Bonington v. Town of Westport, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 08 5008124 (July 27, 2009, Adams, J.), aff’d., 297 Conn. 297 (2010).   See also Tebets v. Oliver Group, LLC, Superior Court, judicial district of New London, Docket No. CV 09 5013052 (March 19, 2013, Devine, J.) (once the defendant, in moving for summary judgment, has established acts as discretionary, “in order to prevail the plaintiffs must ․ show that the circumstances of their case present an exception to governmental immunity”).   Accordingly, having determined that the plaintiff’s claim in the present case involves acts purely of discretion, in order to survive the defendant’s summary judgment motion, the plaintiff must provide an evidentiary basis for an exception to the governmental immunity that attaches to discretionary acts.
    D

    • fl_litig8r says:

      Florida caselaw has been less than clear in distinguishing between discretionary and operational/ministerial acts. I’m sure there are cases that appear to directly contradict some of the rulings above. For example, it’s generally understood that the decision as to whether to install a stop sign is discretionary. However, once that decision has been made, the maintenance of the stop sign and making sure it is visible (like trimming back trees and bushes) is considered operational and must be done in a reasonable manner. Some of these cases appear to require specific mandatory standards for stop sign maintenance before it would become operational, but that’s not how court’s have ruled on this issue. Instead, they apply a general reasonableness test, which makes more sense. In short, the test, generally stated, is that the decision to do or not do something is discretionary, but once that decision is made, it’s execution is generally operational and subject to a reasonableness standard. While this doesn’t really speak to your case, which involves passing an ordinance (something that would be considered discretionary), I just thought it would be helpful to share my own shorthand version of distinguishing discretionary from operational acts by a government agency.

  3. Isabella says:

    Well another document to produce this time the court gives us a choice either present Proposed Finding of Fact which I have studied and looks very complicated – the other choice is to present Jury Questions ( I believe these are question are for voir dire ) which seem much easier to me and I already have them.

    Wondering why there would be a choice.

    Again I have researched and I can find no definitive amount of question allowed.

    Also I am to request Motions in Limine – problem is I don’t have my problem with any of their evidence because they have presented nothing but Affidavits of the defendants that I caused a disturbance at the Town Hall Meetings no dates, act, words or Documentation presented to back their statements up.

    The one thing that I wonder questioning are Affidavits of two policemen that I sued for malicious prosecution who say they were at multiple Town Hall Meetings where I caused a disturbance- the problem is that the only officer at 99.99% of Town Hall Meetings was the Chief of Police who of course is also a defendant; I was wonder if I should state I have a problem because they do not state any dates or anything. How do they prove they were there I prove they were not!!!!

    I have checked every minute ( MCCI twice) of the Town Hall Meetings since the beginning of my problems for speaking out and questioning and they is not one that states I caused any type of disturbance.

    But I have videos, documentation of their abuses of me – I am choosing not to dispute any of their evidence.

    They put in something about Roberts Rules but they are inferior to our Charter Provisions and they violated out Charter Provisions for years.

    Thanks

    • fl_litig8r says:

      I suspect that you really haven’t been given a choice as to the proposed findings of fact or jury questions. The first is used in a bench trial and the second in a jury trial. You provide the one that applies to your type of case. I assume that it also asks for proposed jury instructions and a verdict form, as those would be a better analog to proposed findings of fact than voir dire questions.

      While there is no defined amount of proposed voir dire questions allowed in federal court, don’t expect the judge to consider a very long list. Federal judges conduct the voir dire (unlike state court) and will ask all the standard conflict questions on their own. Expect the judge to use only a small handful, if any, of the proposed questions by the parties, so don’t go crazy with your proposed questions. Asking something like whether they were part of any defendant’s political campaign would be reasonable. Asking who they voted for probably wouldn’t. Remember that you’re looking for things that indicate a clear bias, not the mere potential of one. It’s not so easy to have a juror excluded for cause.

      For your motions in limine, keep in mind that the motion doesn’t have to be directed at a specific known piece of evidence (though it can be). You can ask that the defendants not be allowed to mention something generally, as long as that something is sufficiently described and the court agrees that it shouldn’t be before the jury (usually due to the prejudice it will instill). For example, if my client is gay and it has nothing to do with the case, I can ask that his sexual orientation not be mentioned if I think that might be something that would prejudice a conservative jury. I don’t need to exclude evidence piece by piece. In fact, many times that won’t work because you’re trying to preempt them from asking certain questions of witnesses. Direct the motion to a particular fact or subject if that’s what you’re getting at. I doubt that this would work on the subject of you supposedly creating a disturbance because the defendants can present evidence in the form of the testimony of the police chief that you did, regardless of whether you can dispute that with evidence of your own.

      I doubt that you’ll be able to prove that the two policemen who gave affidavits weren’t at the meetings — at least not in such a way that would prevent them from testifying. Unless you can prove exactly where they were at the time, how will you definitively prove their absence from the meeting? The mere fact that you don’t recall seeing them won’t suffice. If they say they were there, you’d need some pretty compelling proof that they weren’t (like video of the meeting or some record of them being elsewhere) to keep them from testifying that they were there. You can still claim that they weren’t there through your own testimony, but that will just create a factual dispute that the jury would need to decide. They’d still get to testify. Similarly, the absence of a record of a disturbance in the minutes is just evidence the jury will weigh. It doesn’t prove anything definitively.

      Hope this helps.

  4. Isabella says:

    Thanks so much – the Defendants asked for a delay in the trial date again – they way they talk to me and write the court docs as if they will want to the floor with me can’t understand why they just don’t want – had a month to do and waited until yesterday

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