Frequently Asked Questions Q: Do I need a lawyer? A: It depends on your case. It is always a good idea to at least talk to a lawyer about your case. Some cases are simple enough that you may be able to handle your particular case without a lawyer as long as you do your homework, get help when needed, and are good at following rules and procedures. But there are many cases that are very complicated and, without a lawyer, you could hurt or even lose your case, no matter how strong it is and how right you think you are. Q: Are there any cases that require that I have a lawyer? A: Yes. A party in a lawsuit must generally be represented by a lawyer when the case is outside small claims court AND that party: Is a corporation, a limited liability company, or an unincorporated association; Is a trustee, a probate fiduciary, a personal representative, or a guardian ad litem; or Is some other type of fiduciary like a conservator or guardian in certain situations. Get legal advice if you think you may be in one of these situations to find out for sure whether you can represent yourself or must be represented by a lawyer. Q: Why do I need a lawyer in a construction defect case? A: Construction defect cases often depend on expert witnesses to prove or disprove the allegations of the complaint. This may not be true of a small case in which the property owner hired a handyman or contractor to perform a single job on the property and 1 person performed all the work. For example, if you hired a roofing contractor to install a new roof, and the new roof leaked, you may be able to sue the roofing contractor without a lawyer or expert witnesses because you may be able to prove on your own that (1) you hired the contractor to install a new roof, (2) you paid the contractor, (3) the roof leaked, and (4) the leaks caused damage. But if you had several people working on your house (like an architect, a structural engineer, and a general contractor who, in turn, hired subcontractors and purchased supplies from different suppliers), proving who is at fault when something goes wrong becomes very difficult, and you would probably need an expert witnesses to determine fault and explain it to the court. Also, construction experts are expensive, especially if you need many experts in different specialties. Expert costs for these types of cases can run in the tens of thousands of dollars. Some lawyers will take construction defect cases on a contingency basis, but most charge by the hour. You may be able to hire a lawyer on a limited-scope basis, to help you with certain parts of the case, while you handle other parts on your own. Q: Why do I need a lawyer in a case involving competing title to real estate? A: Real estate cases that allege someone committed fraud, like cases in which there is competing title to real property, are usually too complicated for a person without a lot of legal training and experience. Also, even if you win, if you make a mistake in writing up the final order (in civil cases, the court generally does not prepare orders, it is up to the parties to do it), the title insurance company may not insure title, in effect preventing you, as the property owner, from selling or refinancing. Q: Why do I need a lawyer in a case involving wrongful termination or employment discrimination? A: If you are suing your employer for employment discrimination or wrongful termination, you most likely will need a lawyer. Proving these cases is complicated and the employer’s lawyers usually fight these cases vigorously. To win this type of case, you must have a lawyer skilled in direct and cross-examination of witnesses and the rules of evidence. Q: Why do I need a lawyer for administrative writs and appeals? A: Cases appealing a final decision by an administrative agency or hearing officer are extremely complicated and limited in the type of review the court can make. A lawyer can tell you if you have a sufficient basis in the record for an appeal and discuss other options with you. Q: What if the deceased left no will? A: First, be sure there is no will. Just because you do not quickly find one does not mean there is not one in a safety deposit box or hidden away with other papers. If the deceased stated before death that he or she had no will, then you can be fairly sure there was none. If there is no will, Florida has an “intestate succession” law which states that certain persons receive the estate. If there is a surviving spouse but no “lineal descendants” (children, grandchildren, or great-grandchildren, natural or adoptive), then the spouse gets the entire estate. If there are lineal descendants, the spouse gets at least half the estate, but the descendants get some part also. If there is no surviving spouse and no lineal descendants, then the estate goes to any surviving parents of the deceased. If no parents, then it goes to other relatives of the deceased, starting with brothers and sisters. Many times this intestate succession is not exactly what if we cannot find the original will but only a copy. Q: Where can I find copies of state and federal laws? A: You can access state statutes online at http://www.leg.state.fl.us/statutes/index.cfm. The United States Code is quite extensive, but can be downloaded at http://uscode.house.gov/. Local libraries and the State Library are also excellent resources for information on government Q: My landlord is not doing what he is supposed to do according to our lease. Who can help me? A: The State of Florida has a law governing this relationship. The tenant has certain responsibilities, but the landlord does as well. For more information concerning your rights, you may wish to consult with an attorney. Q: What is business law? A: Business law encompasses the many rules, statutes, codes, and regulations that are established which govern commercial relationships and provide a legal framework within which businesses may be conducted and managed. Business law is highly diverse and includes areas such as: Business formation and organization Transactional business law (contracts) Business planning Business negotiations Mergers and acquisition Divestitures Q: What is Probate and why does everyone want to avoid it? A: When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed. If your loved one owned his or her assets through a properly drafted and funded Living Trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased. The length of time needed to complete probate of an estate depends on the size and complexity of the estate as well as the rules and schedule of the local probate court. Every probate estate is unique, but most involve the following steps: Filing of a petition with the proper probate court Notice to heirs under the will or to statutory heirs (if no will exists) Petition to appoint Executor (in the case of a will) or Administrator for the estate Inventory and appraisal of estate assets by Executor/Administrator Payment of estate debt to rightful creditors Sale of estate assets Payment of estate taxes, if applicable Final distribution of assets to heirs Q: What is the purpose of “recording” a deed? A: When you purchase real property, you receive a written document called “the deed” which transfers the ownership of the property from the buyer to you as the purchaser. The deed gives you formal title in exchange usually for a specified amount of money. The transfer of interest in real property is not complete until the deed is delivered to you. The deed should be recorded immediately with the county clerk in the county where the property is located. By recording the deed, you give notice to all future potential buyers of that property that you now have an ownership interest in that particular piece of real property. Recording also tracks the chronological chain of ownership from a series of buyers and sellers. Before you purchase real property, a search is conducted at the county clerk’s recording office to confirm that the seller (as well as all previous sellers) has legal title to the property in question. Title insurance typically performs this function to determine whether any defects occurred in prior conveyances and transfers. If so, such defects may then be pointed out and excluded from their coverage. Q: What is a quitclaim deed? A: A quitclaim deed transfers or “releases” to the person acquiring the property whatever present interest the grantor has in that property. Unlike a grant deed, a quitclaim deed carries with it no express or implied covenants or guarantees. Therefore, if the grantor has no interest in the property, a quitclaim deed conveys nothing. Q: What are some examples of “bad faith” conduct? A: Some examples are: Failing to promptly and thoroughly investigate a claim Unreasonable interpretations in translating policy language Refusing to settle the case or reimburse you for the entirety of your loss, etc. Unreasonable denial of benefits to a claim or termination of an insurance claim that should have been paid Unreasonable delay in making payments to the policyholder Unreasonable failure to defend a policyholder who has been sued under a policy containing a liability provision Unreasonable attempts to under-settle or lowball the payment of a claim Q: Can an insurance company deny my claim? A: Yes. Insurers have the right to deny your claim if you have reneged on your end of the contract, or if the claim is fraudulent or not covered by the policy. Bad faith occurs when the insurance company’s conduct is egregious Q: How long does it take to foreclose a property in Florida? A: Depending on the court’s schedule, it usually takes approximately 120-180 days to effectuate an uncontested foreclosure. This process may be delayed if the borrower contests the action, seeks delays and adjournments of hearings, or files for bankruptcy. Thus, it is absolutely critical for the borrower to contest the action. A mortgage foreclosure suit is a scary thing. Don’t face it alone. Hiring a lawyer may allow you to stay in your property longer, help you avoid being on the hook for the difference between the amount owed and the amount the home is worth, help you to force the lender to sit down face to face with you to work out a solution to keep the home, or in some rare instances even avoid the mortgage completely. Q: What can I do to try and reduce the legal fees I spend on my attorney? A: Be as organized as possible so that you are buying the attorney’s services/time as efficiently as possible. Before phoning or emailing the attorney, plan what topics or questions you need answered and restrict your conversation or email to brief and specific topics related only to your legal issue. Request a Written Fee Agreement in advance from the attorney to prepare yourself about what to expect and how to handle issues related to fees. Ask the attorney whether mediation, arbitration, or some other legal or non-legal solution might be a lower-cost way to handle your issue. Seek out local community mediation services or legal aid information. If you have a fixed amount of funds available, determine a legal budget and contact attorneys in your practice area until you can make a positive connection with an attorney who will fit your budget or who will be willing to take installment payments Q: What are compensatory damages? A: Compensatory damages “compensate” the injured person for various kinds of losses or damages. These may also be referred to as “actual damages.” The courts do not allow lawyers to argue that the award should be what a juror would want if he or she were to go through a similar injury, but the instructions call for “reasonable” compensation.