Topics relating to Trial Experience | St. Petersburg, FL

You’ve Been Served With a Lawsuit: Now What?

Caitlin Szematowicz — Mon, 20 Apr 2020 16:27:30 +0000

If you have been named as a defendant in a lawsuit, and a process server has served a copy of the complaint and summons upon you, you may be wondering what you need to do.

Time to Response to a Complaint

Pursuant to Florida Rule of Civil Procedure 1.140, “Unless a different time is prescribed in a statute of Florida, a defendant shall serve an answer within 20 days after service of original process and the initial pleading on the defendant, or not later than the date fixed in a notice by publication.” This means that a defendant shall generally serve an answer to the complaint within twenty days after the service of process. There are certain exceptions to this general rule – such as responding to an eviction action – so it is critical to understand when your responsive pleading is due. The time to respond to the complaint should appear on your summons.

Avoid Default

It is important to ensure that you file a timely responsive pleading to the complaint. If you do not file a responsive pleading within the timeframe required by law, a default may be entered against you. There are two types of default: a clerk default and a court default. Pursuant to Florida Rule of Civil Procedure 1.500, if a party fails to file or serve a document in the action, the plaintiff may request that the clerk enter a default against the defendant for failing to serve or file a document. This is known as a clerk’s default. Pursuant to Rule 1.500, the court may also enter a default when the defendant has failed to file or serve a document in the action. This is known as a judicial default or a court default. If you do not file or serve a responsive pleading to the complaint, it is likely that the plaintiff will seek to have a default entered against you. Once a court’s default is entered, the plaintiff will then likely move forward with having a judgment entered against you. If a default has been entered against you, you can move to set aside the default. You would need to establish due diligence, excusable neglect, and meritorious defenses in order for the trial court to consider moving to set aside the default. Thus, while the trial court can set aside a default or even vacate a final judgment in certain instances, you should certainly avoid a default. For this reason, a defendant will typically file a responsive pleading. A responsive pleading to a complaint will generally either be an answer or a motion to dismiss.

Answer

An answer is one way for a defendant to respond to the plaintiff’s complaint. Florida Rule of Civil Procedure 1.110 provides that an answer must state in short and plain terms the defendant’s defenses to the claim asserted. The answer will admit or deny the allegations to the complaint (or state the defendant is without knowledge). An answer also typically includes affirmative defense – which are legal or factual defenses in response to the complaint. Pursuant to the Florida Rules of Civil Procedure, an answer must set forth the affirmative defenses of accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.

Motion to Dismiss

There are multiple reasons why a defendant would elect to file a motion to dismiss. Pursuant to the Florida Rules of Civil Procedure, a motion to dismiss may be filed for: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and/or (7) failure to join indispensable parties A common motion to dismiss is known as a motion to dismiss for failure to state a cause of action. The Florida Rules of Civil Procedure require that the pleader state a cause of action, contain a short and plain statement of the jurisdictional grounds, a short and plain statement of the ultimate facts showing the pleader is entitled to relief, and a demand for judgment. Thus, if a plaintiff did not set forth a plain statement of the ultimate facts establishing entitlement to relief, a defendant may choose to file a motion to dismiss. This type of motion to dismiss thus tests the legal sufficiency of the complaint in order to determine whether the complaint states a valid claim. When considering a motion to dismiss, a court must accept the well-pled allegations contained in the complaint as true, and the trial court generally has no authority to look beyond the allegations contained within the complaint. However, the court is not required to accept as true any allegations that are inconsistent with law. Further, the facts establishing the plaintiff’s right to relief must be clearly and definitely pleaded. This means that mere statements of opinion or conclusion unsupported by specific facts will not suffice. The function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action. A motion to dismiss should only be granted where the non-moving party can prove no set of facts in support of the proffered cause of action. If the trial court grants a motion to dismiss, the plaintiff may be permitted to amend the complaint in order to state a cause of action.

Motion for More Definite Statement

A motion to dismiss may include an alternate motion for a more definite statement, or a defendant may file a motion for more definite statement on its own. The Florida Rules of Civil Procedure provide that “if a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, that party may move for a more definite statement before interposing a responsive pleading.” If the trial court agrees that the complaint is vague or ambiguous, it will order the plaintiff to provide a more definite statement.

Contact the Skilled Attorneys at Battaglia Ross

There are other motions which may be applicable to your case – such as a motion to transfer or motion to quash service of process. It is thus important to hire experienced trial counsel familiar with this area of law to defend you. In fact, in the State of Florida, if you are a corporate entity, you will need a lawyer. A corporation cannot appear pro se and must be represented by counsel. If you are in need of legal assistance, contact the skilled trial lawyers at Battaglia, Ross, Dicus & McQuaid, P.A. today.

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What Makes the Car Accident Lawyers at Battaglia, Ross, Dicus & McQuaid, P.A. Different?

Sean McQuaid — Tue, 18 Feb 2020 16:04:37 +0000

Car accidents in St. Petersburg are always unexpected and stressful. But, they don’t need to be more difficult than they already are. When you are injured, have lost the use of your car, and don’t know who to talk to, our team of car accident lawyers will provide the guidance that you need.

At Battaglia, Ross, Dicus & McQuaid, P.A., our team of car accident lawyers have helped countless people in Pinellas County over the decades. We were founded in 1958, so you can count on us to provide stability for your claim.

Our Car Accident Lawyers:

We have three lawyers who specialize in car accident claims. Sean McQuaid, the Firm President as of January 1, 2020 leads the personal injury department. His impressive work in handling car accident cases has led to an incredibly large and loyal client base. In fact, Sean has been elected to serve as the President for the St. Petersburg Bar Association from 2020-21. The St. Pete Bar is the premier attorney organization in the area and consists of over 1,000 lawyers and judges.

Sean is a competitor. He grew up playing sports and attended Princeton University from 1993-97. His senior year, Sean was the captain of the baseball team and led the team from his position as a catcher. His aggressive and competitive nature continued in law school where he graduated in 2000 with his law degree and MBA. While at Stetson, he was part of the moot court team, writing briefs and supporting them with arguments at competitions around the country. Simply put, Sean leads by example and for the past 20 years has established himself as a force in the legal community where he now specializes in car accident cases.

Aubrey Dicus is the past-President of the Firm and served in that position for over 20 years. Aubrey is also a past-President of the St. Petersburg Bar Association. Since his graduation from Stetson College of Law in 1974, he has handled every type of car accident injury claim that exists. Aubrey has tried several car accident cases to multi-million verdicts in his career, but what makes him different is the effort that he puts into every case. Aubrey’s never-ending devotion to his clients, sharp trial skills, and professionalism have established him as a legend in the legal community.

Jonathon Douglas is the newest partner to Battaglia, Ross, Dicus & McQuaid, P.A. and has established himself as a car accident trial specialist. Since his graduation from Stetson College of Law in 2005, he has tried countless cases. For six years he was a partner in a well-known insurance defense law firm in St. Petersburg where he learned all of the tricks of the trade that insurance companies employ. He has taken those skills to the Plaintiff’s side where he now represents victims of every type of car accident.

Why Hire Battaglia, Ross, Dicus & McQuaid, P.A.?

Between our three car accident lawyers, we have a combined 71 years of experience! There is no law firm in St. Petersburg that comes close to matching our combined legal talent and reputation. That is why clients have been loyal to us over the decades. It is not uncommon for our Firm to have represented many generations of family members because they know they can count on us to always be there.

What Do the Car Accident Lawyers at Battaglia, Ross, Dicus & McQuaid, P.A. Charge?

One might think that with all of the impressive accolades and reputation that our lawyers will be more expensive. What you may not realize is that all car accident lawyers charge the same. Car accident cases are handled on a contingency. This means that the lawyer is paid ⅓ of the amount of money that is recovered. This applies whether you have the best car accident lawyer, or someone else. Therefore, if you are paying the same amount regardless of the person whom you choose, wouldn’t you want to hire the best lawyer possible?

Where Do the Car Accident Lawyers Handle Cases?

While our car accident lawyers handle cases throughout Florida, most of our cases are in Tampa Bay. Because we handle cases in the same geographic area so regularly, we are familiar with the ways the insurance companies treat cases, know the best medical providers to help treat your injuries, and most importantly, know the judges that may ultimately hear your case. Our office is in St. Petersburg, so the majority of our cases are in Pinellas County.

Contact Battaglia, Ross, Dicus & McQuaid, P.A.

We are different from other law firms and are proud of that distinction. Our firm has been rated by US News & World Report as a Tier 1 law firm for decades. But, our accolades and awards only tell half the story. We are different because we care about the well being of our clients. In every case, we want them to get better and to put as much money as possible in their pockets. We are tireless advocates for our clients and often develop long-lasting bonds with them over the course of the case. Our clients normally have our cell phones or email and can contact us with questions about their case at any time. We do not advertise on buses, billboards, on the radio or on television because we don’t need to. We consider our clients and our cases to be head and shoulders above the rest. Over the decades, the lawyers and insurance companies have learned that we do not play dirty tricks or games with our cases and we have found that our clients get rewarded for that. We know that our clients recover more in their cases due to our personalized knowledge of the cases and our willingness to aggressively pursue maximum recoveries.

If you have been involved in a car accident and are looking for honest lawyers to assist you through the difficult process, then please contact us for a free consultation. We are confident that you will be impressed with us and the service that we are able to provide you.

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The Importance Of Working With A Firm With Trial Experience For Your Injury Claim

Aubrey Dicus — Tue, 23 Apr 2019 15:58:12 +0000

A commonly asked question by those injured in an accident is “Should I hire a lawyer with trial experience?” Because injury claims have the potential of going to trial in a court of law, the answer is absolute yes. While there may be many excellent lawyers in your community, you want a lawyer with relevant experience in personal injury claims. Just like when you have a broken bone you should hire a doctor with experience in treating broken bones, like an orthopedic surgeon rather than a cardiac surgeon who specializes in the care of the heart.

So, while the short answer is simple – hire a lawyer with trial experience – it becomes a bit more complicated from there. Typically, there are two types of trials one may confront in litigation: a jury trial or a nonjury trial. The difference is significant. Since almost all personal injury claims are tried by a jury trial, you want a lawyer with not only trial experience but jury trial experience.

Only a small percentage of lawyers in Florida actually litigate cases and among those, even a smaller percentage actually have gone to trial; interestingly, even a smaller percentage of those have actually been in a jury trial on a personal injury claim. The vast majority of personal injury cases settle without having to file a lawsuit. Of those cases where a lawsuit is filed most are settled without a trial. Government statistics show that less than 5% of personal injury cases that are actually filed go to trial, which means it is likely that substantially less than 1% of personal injury claims are resolved by a jury trial. So, the population of lawyers with actual jury trial experience is limited.

You should exercise appropriate due diligence in selecting your lawyer with jury trial experience. Following are some of the factors you should consider:

The lawyer’s amount of jury trial experience.

Obviously, a reasonable degree of experience with jury trials is important. Trial lawyers with just a few cases of jury trial experience usually have a lot more to learn. Beware, because quantifying the quality of your lawyer based on how many cases he or she may try in a given year can be misleading. Because so few cases actually go before a jury, it may be that a seasoned trial lawyer, especially a well-known one, may try less than one jury trial in a year’s time, but overall have substantial jury trial experience.

The quality of the lawyer’s jury trial results.

This can also be tricky because often cases actually go to trial because the case has inherent problems. For example, is “who’s at fault” an issue, is it a low impact case which creates causation issues, or does it involve a client that already had significant injury problems. Nonetheless, it will be important to know that the lawyer has had good results.

The lawyer’s reputation in the community.

Whether your lawyer has a good reputation among the judges and other lawyers in the community is important. It can often make a difference in courtroom results. It can also make a difference in settlement values if it is known by defense lawyers and insurance companies that your lawyer does file and go to trial, unlike the many lawyers who don’t.

The lawyer’s personality and people skills.

This may be difficult to assess in an initial interview which will likely be all you have before making a decision. Nonetheless, you should look at this factor in your interview. Again, the lawyer’s reputation in the community would also be a factor to consider.

Considerations related to hiring a lawyer is quite an involved topic and beyond the scope of this article. So, let me conclude with the strong recommendation that for your injury claim you should definitely hire a lawyer with jury trial experience and your vetting process should, at least, include the considerations mentioned above.

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