Posted On: October 27, 2008

FL Trial Lawyers -The Reality of Recoverable Costs

Ideally, this article will be utilized frequently by our readers in the near future. You have battled the adjuster, the defense attorney, the judge, and the jury and won a victory for your client; and to the victor goes the spoils. Hopefully, you filed a proposal for settlement entitling you to fees, but regardless, as the prevailing party, you are entitled to reimbursement of your reasonable costs.
Pursuant to Florida Statute 57.041, a prevailing party is entitled to reimbursement of costs as follows:

1.The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators and actions when they are not liable for costs.

2.Costs may be collected by execution on the judgment or order assessing costs.

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Posted On: October 14, 2008

Robert M. Montgomery, Jr. (1930-2008) "A Force of Nature"

Like so many others, Bob Montgomery gave me my first job as a trial lawyer. (In characteristic fashion, he offered me more to start than I asked for!) The list of the attorneys he hired over time, from Jacksonville to Fort Lauderdale, West Palm Beach and St. Petersburg reads like a “Who’s Who” of the trial lawyer elite. From most of the partners at Lytal and Reiter to most of the partners at Searcy, Denney – Roy Watson, Justus Reid, Edna Caruso, Lois Frankel, Wally McCall, George Mastics, Steve Billing, Mike Bragg, Jose Rodriguez, Mike Burman, Judge Moses Baker, Bettye King…I don’t mean to leave anybody out but I could fill this whole space with just the names of the superb lawyers he trained.

Bob believed in training – both in the art of the trial practice and the business side. He was a superb cross-examiner whose aggressive style won many an “unwinnable” case. He also didn’t hesitate to throw his young lawyers into “the deep end of the pool”. I remember handling cases with seven figure potential 30 years ago. With Bob you had to be the best prepared, have the best experts and make the best arguments. He gave us all the confidence to go beyond being a “litigator” (a term he never used and associated with “silk stocking” firms). To be a trial lawyer, he knew his lawyers had to cut through all the legalisms and get to the common sense essence of the case. He used to call it “the heart of the coconut”.

We spent money on preparing our cases (“you have to crack a few eggs to make an omelet”). We spent money on marketing to get cases (“you have to catch a rabbit before you can make rabbit stew”).

For as many large verdicts and settlements that Bob got, he always believed in giving back to the community. Between the Palm Beach Opera, Kravis Center, Home Safe, Armory Arts Center, Sickle Cell Foundation, Anti-Defamation League and many others, I’m told that he and his wife, Mary, will have given $100,000,000.00 to various arts and charitable causes.

Bob’s personality could only be described as a “force of nature”. He did things with speed and intensity. I remember trying a wrongful death case in Martin County where he got so worked up, he accidentally ripped open the zipper on the front of his pants – had to ask the Judge for a recess to sew it up so he could continue.

On another occasion, his secretary, Mrs. Tucker, who never made a mistake, put down 3 “a.m.” for a hearing time instead of 3 “p.m.” When opposing counsel poked fun by sending a letter saying “I’ve heard about wearing down out-of-town counsel, but isn’t this a bit ridiculous”, Bob shot back a letter: “that was no mistake buddy, we knew you’d be boozing it up in these environs about that time so we knew you’d be available.”

It is hard to appreciate now, but Bob was way ahead of his time in hiring minority attorneys, women, attorneys of color and others. He took a chance on this short, skinny (then) kid from New York with no trial skills.

A senior partner attorney in another firm once said to me many years ago: “How does Bob Montgomery find all these talented trial lawyers to come into his firm – what does he do to find them, what is his system?” After all these years, the answer is clear – he didn’t find them – they found him. Those that wanted to be the best – wanted to learn from the best. Bob, you were the best. For all of us that you taught to be successful, thank you, and we’ll miss you. You were exciting to be around. A real force of nature.

Posted On: October 3, 2008

FL Trial Lawyers - How the Plaintiff’s Have Been Restrained by the Seatbelt Defense

During the course of our practice many of us have encountered or will encounter the affirmative defense of the Plaintiff’s failure to use a seatbelt. Unfortunately, the battle over the seatbelt defense has ended with a resolving defeat for the Plaintiffs. Over the course of time, the case law and the jury instructions relating to the use of the seatbelt defense have placed Plaintiffs in a precarious position.

Florida Statute 316.614 governing seatbelt usage reads as follows:

4. It is unlawful for any person:

(a) To operate a motor vehicle in this state unless each passenger of the vehicle under the age of 18 years is restrained by a safety belt or by a child restraint device pursuant to Section 316.613, if applicable; or

(b) To operate a motor vehicle in this state unless the person is restrained by a safety belt.

5. It is unlawful for any person 18 years of age or older to be a passenger in the front seat of a motor vehicle unless such person is restrained by a safety belt when the vehicle is in motion.

This statute has placed the burden on Plaintiffs, both as operators and passengers in motor vehicles, to be restrained by a seatbelt.

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