Frivolous Lawsuits and Predatory Trial Lawyers?

2022 Florida Civil Justice Changes

The Florida Legislature did some serious spring cleaning during the legislative session. Massive and unprecedented changes have now been implemented across the civil justice system. Governor Desantis declared the changes necessary to decrease frivolous lawsuits and prevent predatory practices of trial attorneys who prey on hardworking Floridians. These changes impact the ability of lawyers to make claims, how and when those claims can be made, and the recoverable damages.

2022 Florida Property Insurance Changes

First up, the Florida Legislature overhauled first-party insurance law through Senate Bill 2A, Senate Bill 2D, and Senate Bill 4D. The office of Florida's Chief Financial Officer published a summary of the changes.

The notable changes include:

• Statute of Limitations:

• Reduces the deadline for policyholders to report a claim from 2 years to 1 year for a new or reopened claim, and from 3 years to 18 months for a supplemental claim.

• Attorney's Fees:

• Repeals the one-way attorney fee provisions related to property insurance claims. This means that neither party can be awarded attorney fees in a property insurance claims lawsuit. Each party is responsible for payment of their own attorney fees.

• Assignment of Benefits:

• Eliminates the assignment of benefits for an insurance policy to a third party such as a contractor, roofer, or plumber. Prohibits the assignment, in whole or in part, of any post-loss insurance benefit under any residential property insurance policy or under any commercial property insurance policy issued on or after January 1, 2023.

• Arbitration:

• Permits arbitration clauses in insurance policies. Clarifies that insurance companies may only issue an optional endorsement related to mandatory arbitration with consent from policyholders. Companies must also offer a policy without a mandatory binding arbitration clause. A premium discount is required for policies with mandatory arbitration.

In short, homeowners will have less time to file a property claim. When doing so, homeowners will no longer be able to recover attorney's fees and as a consequence, their recovery and ability to make repairs will now be less. Homeowners will also now incur out-of-pocket expenses for all needed emergency and mitigation efforts at the outset of a claim as an assignment of benefits is no longer available. Finally, homeowners may have to go to arbitration to have their claim decided rather than court if they end up having an arbitration endorsement attached to their insurance policy. It is expected that as a result of the changes that there will be fewer property claims filed in the future and fewer attorney's making claims on behalf of homeowners.

2022 Florida Civil Remedies Changes

Next up, the Florida Legislature undertook tort reform measures when it passed House Bill 837. Governor Ron Desantis released a summary of the changes and asserted the changes were necessary to protect Floridians and safeguard the economy.

The notable changes are:

• Statute of Limitations:

• The time to bring a lawsuit based on negligence has been reduced from four to two years.

• Comparative Negligence:

• An injured party will be prevented from recovering damages if they are shown to be more than 50% at fault for their injuries. Previously an injured party could recover damages in all instances with a deduction for their portion of fault.

• Attorney's Fees:

• Essentially eliminates attorney fee multipliers and limits one-way attorney's fees against insurers to only specific instances.

• Medical Damages:

• Limits the evidence and amounts that can be claimed for past or incurred medical charges. Further limits the evidence and amounts that can be claimed for future medical expenses based on what an existing health insurance policy would pay or 120% of the Medicare reimbursement rate or 170% of the state Medicaid rate if there is no applicable Medicare rate.

• For those services rendered under a doctor's letter of protection, the claimant must make certain disclosures before a claim can be made for the medical expenses.

In this instance, injured parties will have less time to file lawsuits and they will not be able to recover any damages if they are more at fault for their damages than the other party. Claimed attorney's fees are now limited as are the amount of medical damages that can be claimed. As with the property insurance changes, the tort reform measures are expected to reduce not only the number of personal injury claims that will be made but also the number that will be successful at trial due to the new comparative fault restriction.

The Takeaway

In the name of reigning in the number of lawsuits and the value of jury verdicts, the Florida Legislature has passed an unprecedented overhaul of the civil litigation system in a single legislative session. The motivation for these changes is to protect Floridians and safeguard the economy from the alleged danger of predatory trial lawyers. These legislative goals are to be achieved by limiting the time for parties to file lawsuits, reducing or otherwise eliminating legal fee claims, and restricting the type of claims that can be brought and the amount of damages that can be brought.

Only time will tell if the 2022 Florida civil justice changes will truly protect Floridians. Many questions remain unanswered. Will insurance companies reduce their premiums for homeowners as a consequence, or will they bankroll increased profits? Will all Floridians benefit, or will injured parties suffer more while others receive an underserved benefit? Is the problem frivolous lawsuits or is it frivolous defenses and the refusal to accept responsibility? Are trial lawyers predatory villains in this case, or is something else going on?

What say you?

Less conflict, more resolution.

Patrick Russell

Miami Florida Mediator

Meaningful Mediation is Ethical, Mindful, and Strategic

#mediation #adr #disputeresolution #mediationtips

Mediation Tip: Sharing Settlement Authority

If you are a parent, I am sure you have either used or heard the phrase that sharing is caring. The funny thing is that sharing can also apply to mediation and your mediator. Let me explain.

Mediation Can Benefit from Direction

Imagine showing up in a computer store and observing a customer who has no idea how much money to spend on a computer and a salesperson who will not reveal the prices of the computers. Would you expect there to be a sale under those circumstances?

Here is another example. Ever try to go somewhere new without directions? Do you just hop in your car and hope for the best? Of course not! If you did, it would be a long, confusing, and frustrating experience.

But often that is what happens at mediation. Neither party will truly use the mediator as a mediator. By that I mean, involving the mediator as an active participant in the journey and sharing your ultimate settlement authority for where you intend to go.

A Typical Directionless Mediation

What results from lawyers and parties not sharing their ultimate settlement authority with the mediator? You have the same situation as driving without directions, you are in for a long, confusing, and frustrating experience.

Each party anchors their initial position with high demands and low offers. Each side feels insulted by the initial anchored positions and we can spend a long time getting back on track. From there, the process becomes a long and often endless exchange of small incremental offers until patience runs dry. Settlement brackets eventually get thrown out, and each side, including the mediator, has no idea where the mediation is going. Does this sound familiar?

Default Mediation Advocacy

Why do many mediations follow this same tired path of frustration?

First, it is a habit and apparently a time-honored tradition that most lawyers and parties are familiar with.

Second, many lawyers and parties come into mediation with a litigation mindset. A litigation mindset can include any or all of the following: extreme confidence or overconfidence; distrust and skepticism of the other side; a zero-sum I win-you-lose view; and a willingness to roll the dice and see what happens at trial. Often a litigation mindset will lead to a poker mentality for not showing any cards and an unwillingness to share information at mediation.

Do you notice the similarity between gambling and how mediation is often played? I would suggest that mediation can be played differently which would make it more efficient and effective. We can do better.

Trust Your Mediator and Share Settlement Authority

The prime directive for an ethical mediator is to protect the mediation process. That simply means that a mediator's sole responsibility is to ensure the parties are informed, that confidentiality is maintained, and they are utilizing self-determination to resolve their disputes.

Notice that I did not mention that a mediator's goal is to settle cases, although that would be a wonderful outcome. Rather, a mediator must utilize the confidential information shared by both sides to see if there is a pathway to resolving the case and generate creative solutions to do so when necessary. If that information and settlement authority is not shared, a mediator is working in the dark and without direction.

Conversely, if you place trust in your mediator and share your settlement authority you are now giving direction to the mediator and the mediation. The mediator is no longer in the dark and is armed with valuable information and tools to do the real work at mediation.

Armed with each side's settlement authority, a mediator can efficiently gauge whether a settlement is possible and save everyone a lot of time. Comparing the settlement authority from each side, a mediator can first determine if there is an overlap between the offers which means settlement, or if the parties are sufficiently close for a realistic resolution.

How to Share Settlement Authority

In the ideal world, both sides would share their ultimate settlement authority with the mediator very early during the mediation. This would compress the time of the mediation to a negotiation concerning the interests of the parties and not their positions.

At the very least, early on, lawyers and parties should trust the mediator with settlement authority at or near the edge of their ultimate settlement authority if they want to leave some room to make a deal at the end. Another option would be to at least indicate a range for settlement authority so the mediator has a sense as to where this might be going. In both cases, if done early on, you are giving direction to the mediation so that the process is more efficient than a typical directionless mediation.

Trust is key here. Lose the litigation mindset of distrust and skepticism. Trust the process. Do you believe that your mediator is ethical and has no agenda to serve one party over the other? In that case, an ethical mediator is charged with getting the best deal for both parties but the mediator cannot do that if the information is not shared. If you do not trust the mediator, then I would simply ask you why did you hire the mediator in the first place?

The Takeaway

Mediation does not need to be a directionless, time-consuming, or frustrating experience. To bring it full circle, remember that sharing is caring, and it is also contagious. If you share your ultimate settlement authority with me, know that I will advise the other side that I know your authority without revealing it and encourage them to do the same so we can be efficient and explore a resolution that works for both parties. Someone has to go first and trust the process. In most instances, the other side will reciprocate and we can get on to doing good work.

Less conflict, more resolution.

Patrick Russell

Miami Florida Mediator

Meaningful Mediation is Ethical, Mindful, and Strategic

#mediation #adr #disputeresolution #mediationtips

Mediation Tip: Dealing with Difficult People

Dealing with difficult people can be our greatest challenge. Difficult people are everywhere in all facets of our life. They are the one puzzle that we find the most challenging to unlock.

The Consequences of Difficult People

Difficult people are often a roadblock to what we are trying to achieve. If we do not skillfully interact with difficult people they will not only frustrate us but also send us down the wrong path to our own detriment.

Block a deal? Check. Cause anger? Likely. Elicit an inappropriate response? Possibly. Result in a Bar complaint? Hopefully not.

Analyze and Do Not React

The first step in dealing with difficult people is not to react but to analyze. Consider this as a strategic scouting mission to determine the lay of the land. Do not default to the assumption that difficult people are just inherently crazy and then move on.

Be curious and try to figure out what is really driving this person. Are they simply having a bad day and this is a temporary reaction? Perhaps they have an agenda and this is their means of achieving it, such as grandstanding for a client. Or are they innately difficult because they lack the proper communication or emotional skills?

How do you do this? First take a breath, pause, and not get triggered by the antics of a difficult person. Make your first priority the acquiring of data for why the difficult person is acting the way they are. Trust me, most of us skip this step but it is a very important skill to practice.

Gather Information

You will want to non-judgmentally observe the situation with the goal to solve the problem for what is driving the person. Read the room. Are there clues in the environment that can help you to figure out what is going on with this person?

Next, ask open-ended questions. Get the difficult person to talk. You can start by stating that it seems as though they are (angry; cannot help you; don't believe you; don't want to make a deal; are confident they will win, etc.) and ask them to tell you more about why they feel that way.

Just validating a person's feelings or position, whether or not you agree with it, goes a long way to defusing the situation and can provide valuable information.

If a difficult person makes an outrageous statement or insults you, ask them what their intention is by making such a statement. They may fess up that their statement was not intended and apologize. In that case, it was just a misunderstanding and it has been fixed. If not, you now know the person is a bully or immature. With a bully, leave it there. The bully will have to respect you going forward as you have called out their behavior and identified it.

Remember the Goal

The goal is to see if you have a chance to solve the riddle of what is making the difficult person tick. If you can solve the person, you have a chance to solve the problem.

Communication and understanding is the key. Dismissing the difficult person or their feelings/position will not solve the problem but that is often what we do. We are then faced with a complete lack of understanding or two immovable forces pushing against each other without any progress or resolution.

Employ the Proper Response

How you can skillfully deal with a difficult person will differ and depend on what is driving them. There is no one-size fits all tool here. That is why it is important to first take a step back and assess.

If the difficult person is just having a bad day, that is a temporary condition that hopefully can be resolved by listening and validating it. Showing interest and concern for the person can certainly turn that situation totally around.

If the difficult person is grandstanding or showboating, then you know you need to take them aside privately to have a real conversation. Trying to solve the problem in the presence of the client will most likely only result in more grandstanding and escalation.

When a difficult person has an entrenched and confident position that either their cause is just, right, or will prevail, you now have the opportunity to find out the basis for it. Likewise, you can share information that can call into question the difficult person's position. When skillfully practiced, you can have a merit-based discussion rather than just a positional one. This is often the secret sauce to resolving conflict.

However, if you find that a difficult person is a bully, not willing to communicate, engage, or share, well then you know there is not going to be much that you can do. Now you just have to focus on your agenda and push on the best you can.

The point is that you tried. You never will know until you try. Do not lose the opportunity to engage with a difficult person that is actually capable of being engaged.

The Takeaway

Not all difficult people are the same. Many engagements with difficult people can actually be solved if you analyze each non-judgmentally and try to learn what is driving them at the moment. If you are able to do this, you can turn the situation around and move on to working towards your ultimate goal.

Less conflict, more resolution.

Patrick Russell

Miami Florida Mediator

Meaningful Mediation is Ethical, Mindful, and Strategic

#mediation #adr #disputeresolution #mediationtips