400 North Ashley Drive Suite 1700 Tampa, FL 33602
Call Our Firm Today 813-241-0123

General

Through the Eyes of the Jury

Throughout law school and during my first few years of practice as a trial attorney, I have been told by professors, mentors, and peers alike what should and should not be worn in a courtroom. The goal was to not offend anyone on the jury. This theory seemed simple and easy to follow.

The recommendations I received included such thing as: do not wear bright nail polish, do not wear heels which are too tall or open-toed, ensure your suit and shirt are freshly pressed, etc. I followed these tips to the letter during each and every trial attended. After the first few trials, and feeling the eyes of a jury panel scrutinizing my every move, I wondered what else jurors noticed about attorneys during trial.

A few months ago, I had the opportunity to see trial attorneys through the eyes of the jury when I was called for jury duty. As I entered the courtroom, I focused my attention on the attorneys. I immediately noticed their appearance and went over all the check-boxes in my mind to determine who had followed the unwritten rules that were ingrained into my conscious and subconscious. As the attorneys began voir dire, I realized that, as a juror, I noticed much more than the appearance of the attorneys. The conduct of the attorneys is also under strict scrutiny. Did the attorney try to make a connection with the jurors? Was their presentation concise? Did they seem prepared?

As these thoughts raced through my mind, I wondered what other jurors were thinking. Maybe I was being too harsh on these attorneys because I was one myself. After I was dismissed from jury duty, I conducted a little research into what juries actually think. This lead me to a recently published report by the Cornell University Law School Law Review titled “What Juries Really Think: Practical Guidance for Trial Lawyers.”

Surprisingly, a very small percentage (only 4%) of the jurors surveyed commented about attorney appearance. These jurors reported that the attorneys had holes in their jackets, wore wrinkled clothing, and looked sloppy. Such comments were consistent with what I heard from professors, mentors, and peers.

However, there were other factors that the jurors found more important than attorney appearance. Those factors included:

  • Organization/Preparation/ Efficiency: 44.7% of jurors expect attorneys to do more than simply “wing it.” Jurors expect attorneys to be organized and present their case efficiently.
  • Delivery or Style of Presentation: 36.1% of jurors expect attorneys to speak clearly, appear personable, and to refrain from dramatic presentations.
  • Repetition: 33.7% of jurors are insulted when attorneys repeat questions. Jurors expect attorneys to utilize technology and timelines during the presentation of evidence.
  • Good Behavior toward Opposing Counsel, Witnesses, and Jury: 31.3% of jurors expect attorneys to be respectful to other persons in the courtroom.
  • Other Professionalism Indicators: 29.3%.

Although the jurors surveyed were only asked to relay their thoughts about attorneys, it stands to reason that some of these concepts apply to corporate representatives, clients, and witnesses, who are also present during a trial. Since jurors are watching everything, it is reasonable to believe that the actions, appearance, and conduct of everyone in the courtroom must also be under the jury’s scrutiny.

While these concepts may seem simple and self-evident, we’ve all witnessed trial counsel who has failed to abide by these unwritten rules. Understanding a juror’s perspective can help trial attorneys meet expectations and earn the jury panel’s respect. Although the right conduct will not guarantee you will win, it certainly cannot hurt.

 

 

Over-payments: getting the advantage for the insurer

Overpayments to providers by insurers happen all the time. It’s not a matter of fraud but the complexities of the system. Medical providers rarely have fixed tables of cost for any given services and the actual price for any given treatment is often negotiable.

Insurers have a disadvantage in this system. The position is made even weaker by Florida law. The only way to regain the advantage, when necessary, is to be prepared for civil litigation.

The law in Florida

Insurance payments to providers are covered in Florida statute 627.6131, Payment of claims. The exact dates and methods for all claims are spelled out in great detail. Section (6)(a) covers overpayments discovered as part of a review or audit and not related to fraud.

1. All claims for overpayment must be submitted to a provider within 30 months after the health insurer’s payment of the claim. A provider must pay, deny, or contest the health insurer’s claim for overpayment within 40 days after the receipt of the claim. All contested claims for overpayment must be paid or denied within 120 days after receipt of the claim. Failure to pay or deny overpayment and claim within 140 days after receipt creates an uncontestable obligation to pay the claim.

This establishes the procedures and the clock for payments. Further, in section 3 it is made clear that insurers cannot take any action on their own including reducing payment for other services as part of an overpayment claim.

What this means

If a provider simply ignores the overpayment request, it can be enforced after 140 days. But it often takes the threat of civil action in order to have that reimbursement occur.

It is often in the best interests of any provider to simply deny the overpayment as a matter of course. This leaves them in the even stronger position, given that it is not legal to reduce any payments to the provider. There is no recourse for hte insurer other than to threaten to sue.

How to proceed

For this reason, all situations involving overpayment have to be considered on the basis of how the information will be presented at trial. The providers must believe that the overpayment is going to proceed to trial before they will take it seriously, based on their strong position under the law.

That is why any collection action against a provider must be undertaken with a law firm experienced in handling collection and refunds from providers. There is simply no alternative, given the position insurers are in under Florida law.

How much security is enough?

In the wake of several incidents involving mass casualties, many Americans have become concerned for their safety. Property owners of large, public spaces are increasingly being called on to tighten security and provide adequate protection to their patrons.

But what is expected? The law is open to changing conditions and times for a lot of reasons. But property owners in general are not always expected to take into account every potential risk to the public. It’s important to understand the potential liabilities all property owners have and how they can cover them.

Premises liability

Under Florida law, owners of any establishment or property that is open to the general public have an obligation to keep their patrons safe. The most common things which come under this are appropriate lighting, lack of trip hazards, and other elements of basic safety.

The general public also has a right to feel safe from criminal acts, too. Any potential threat to safety which can be “reasonably foreseen” or expected has to be addressed. This includes breaking up a fight in a bar, for example, before patrons are seriously injured.

A property owner can be held liable if three conditions are all met:

  • A person is injured or otherwise harmed on the property
  • The property owner failed to provide basic security to stop “foreseeable” incidents
  • The failure of the property owner to do so is directly related to the harm caused

Defense against charges of premises liability or “negligent security” is based on proving that just one of these conditions is not met. That is where the question as to whether a threat is “foreseeable” becomes important.

Mass casualty incidents

To date, lawsuits claiming negligent security have been unusual in the aftermath of mass casualty incidents. The defense that no one could have seen this coming is easy to make as everyone absorbs the horror of the situation. But as they become more commonplace and the public questions what security should be provided, it’s only a matter of time before a claim that such an event was “foreseeable” will arise.

One response to this is additional insurance being offered to cover these incidents. Such products are relatively new and the cost is still being weighed. Mass casualty events are indeed very expensive – the Pulse Nightclub in Orlando was destroyed and only was able to reopen in a different location.

Are other responses, such as increased armed security appropriate? Property owners need to review their situation individually as times change to determine if this is appropriate. A conversation with an attorney experienced in premises liability is certainly a good place to start if you have any concerns.