THE DEATH OF THE DEMAND

Last month, I wrote briefly about the Omnibus Tort Reform Bill, known as HB 837 – some of the basics of the bill, how it was being hurriedly debated and pushed through both the Florida House and Senate, and how Governor DeSantis rushed to sign it into law on March 24, 2023. The article focused on the wave of litigation created in the wake of HB 837’s passage. I coined this drastic increase in lawsuits as “The Tallahassee Tsunami,” and discussed how Tallahassee failed to take the proper course of implementing the changes in HB 837 slowly over time with some practice tips for young lawyers who found themselves thrust into this political mess. This month, I am going to focus on some practice points for young practitioners now that the tsunami has hit our state court system.

In assessing the damage caused by the Tallahassee Tsunami in the weeks since HB 837 was signed into law, a few things have become apparent. First, the Clerks of Court throughout the State of Florida really did a fantastic job stepping up quickly to handle the wave of lawsuits that poured into the civil justice system. Second, the Tallahassee Tsunami affected the individual circuits across the state differently.

Each circuit seems to be surveying the damage and assessing how to proceed. Some circuits are issuing automatic stays, while others are scheduling Case Management Conferences early on in cases to see if early resolution is an option. Others still are operating like business as usual. There is no one size fits all solution, and it looks like the best approach needs to be tailored to the individual circuits. However, the one thing that does seem uniform across the board is that the Tallahassee Tsunami has brought about the death of the demand!

In this new world created by Tallahassee politicians through HB 837’s passage, there is no incentive to draft a detailed and thorough demand before filing suit. You just do not have the time or the data to do this! You will not have years of medical records to look through to see whether your client’s pain is lessening, worsening or remaining constant over an extended period of time. You will not be able to ascertain the permanent limitations your client has experienced due to their injuries. You also are not likely to have a handle on seeing how your client’s condition will deteriorate over time, which makes it difficult, if not impossible, to piece together proper pain and suffering damages.

Valuing cases is always difficult, but now with half the time to do it, you are going to have to err on the side of being aggressive and filing suit. The jury will determine the damages at trial, and the sooner you file suit, the sooner the jury can do its job and you can get your client justice.

With only a two-year Statute of Limitations, you will not know what the best course of action for your client is going to be. When in doubt – file suit! Filing the lawsuit is the only way to protect your client’s rights. Often times, clients who are severely injured need years of treatment to get to maximum medical improvement (“MMI”) or to get the pain from their injuries controlled.

If you are a young practitioner in the personal injury area, you cannot take the wait and see approach anymore. Your only option on these sorts of cases is to file suit, litigate the case and push for trial. Filing suit needs to be the new norm on every case you have. If you are not willing to file on a case – do not take it! You cannot afford to get stuck playing pre-suit shell games with the insurance company. They are a time waster, and you only have a two-year clock to work with. The insurance company can get all the information they need about the facts, liability and damages at your client’s deposition. Do not let them try to drag out the pre-suit process.

The Clock Is Ticking. So What’s the Plan?

1. From the very beginning of intake on a case, note the two-year Statute of Limitations date, and set a reminder on your calendar when the case becomes one year old.

2. Take extra time at intake to understand the factual scenario of what happened to your client and what initial injuries they sustained and note them in your file.

3. Get authority from your client to file suit when the case becomes one year old and document it in your file.

4. Once the case is a year old, file the lawsuit to protect your client and avoid SOL issues.

5. Test out the possibility of settlement before you serve the Defendant(s).

6. Remember that at the end of the day, the law has changed, but the jury is still the trier of fact and the amount of damages on a case remains solely within their purview.

7. Treat every case as a trial case. In this wild environment, who knows what cases will settle and which ones will require a jury?

8. Work with opposing counsel to try and resolve cases when possible, because they know which cases are the ones that will likely have to be taken to a jury and which should settle.

9. Pick up the phone and call opposing counsel. It will help you understand roadblocks to settlement, learn about the theory of defense and also how to best value your case

The bottom line here is that litigation resolves cases whether by legal mechanism, like a Proposal for Settlement (PFS), through alternative dispute resolution at mediation or non-binding arbitration, or at trial.

In this new world, the Tallahassee Tsunami may have washed away the roads and streets we normally take to resolve cases, and at the same time changed the substantive law in the PI world, but the jury trial is still very much alive and well – use it!

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By Sarah Nadal