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     When you hear someone say it’s Veteran’s Day, what comes to mind?  Many express thanks for the service of brave men and women, and the sacrifice they give.  Sounds great doesn’t it.  Yet, most of us have no idea of the sacrifices the families our service men and women quietly make.   The families of Veteran’s often are overlooked and unless you have lived it, you really have no idea.

    Some facts to consider this Veteran’s Day 2011.

     Our country currently has about 100,00.00 trps in Afghanistan, and by the end of the year, all but enough to staff/protect our embassy will remain in Iraq..  1750 US service men and women have been killed in Afghanistan since 2001.  4801 US service men and women have been killed in Iraq since 2003.  Over 32700 US troops have been wounded in both wars. These members of our military have parents, brothers and sisters, spouses and hundreds of thousands of children.  In an article published in USA Today, children (age 3-8) make 18% more visits to Dr.’s for behavioral problems, and  19% more visits for stress disorders of deployed parents.

     Most of us have a similar story growing up.  We enter into an elementary school, perhaps stay in the same school until we are old enough for high school.  If we are involved in sports, often we’ll compete with and against our friends and neighbors for years.  Our lives have a semblance of stability, and we take that for granted because we know nothing else.  How many of us move to different parts of the U.S. or even the world every 2 1/2 – 3 years?

     The children who grow up in the military have a completely different childhood.  I know, I lived it.  My father retired after 26 1/2 years at the grade of Chief Master Sargeant, and my mother was an Officer when she resigned her commission to marry my father.  In the 50′s female officers and enlisted men were not allowed to fraternize between the ranks.   I was born in England, moved to Arizona, the Philippine Islands, California, and moved to the panhandle of Florida, where my dad retired.  When I spend time with my current friends, some of them have known each other since grade school, that is something that is foreign to me.

     I hear of deployments that stretch 18 months in Iraq or Afghanistan, and for some, this is their 3rd or 4th deployment during this period of war.  We hear of this, think wow – that’s gotta be tough, and then go about our daily lives.  Turn off your TV, radio, and turn away from the computer to take a moment and think of everything that you have seen your children accomplish over the last year.  If you were in the military and deployed at war, you would have missed it all.  More importantly, your child would not be able to share all of those moments with you.  When your son played his first T-ball game, where you able to be there?  There are countless sons and dads/moms that were not able to share these moments.  When your daughter was in her first school fashion show, did you help her get ready?  Deployed mom/dads not only couldn’t help, but were not there to see the gleam in their daughter’s eyes when all eyes were on her.

      During the Vietnam War, we lived in the Philippine Islands, and then Northern California.  My father flew Medical Evacuation missions and would deploy away from us for a month or two, would come back for a couple of weeks, and then redeploy.  My mother did her best to teach me how to play baseball, my uncle ( a long distance truck driver) taught me how to ride and fix a bicycle.  Friends of my dad were always dropping by the house.   During this time, we always lived on the air force base, so all of my friends were living the same life.  As an 8-year-old, that is all I knew.  A lot of people I know are genuinely supportive of our troops and military, but truly can’t fully appreciate the sacrifice of the families.

     On this Veteran’s Day, let’s do more than say thanks and have a day off from work.  Veteran’s Day also starts the preparations for Thanksgiving and the Christmas Holidays.  Let’s make Veteran’s Day more than just a day, make it a sentiment for the season. 

     Charities begin the push for holiday donations for the needy.  In every area of this country, there are charities and groups that focus on helping the military families of the deployed.  Contact your nearest military base or even recruiting office for contact information.  The next time you redecorate your house, or replace holiday decorations for you house, don’t throw the old items away.  Chances are your furnishings will be well received for donations, and put to great use helping a military family.

     As you travel this holiday season, if you fly chances are you’ll see a member of the armed forces with their family.The next time you are in line at a store and you see a man in uniform holding his daughter, or a woman holding her son’s hand, take the time to tell that child how proud we are of their parent’s.  Our service men and women didn’t make their commitment for our gratitude, but the expression of thanks can mean so much to them.  Their children have every right to be proud.  As they grow up and really understand, their pride in the character of their parents will help shape them forever.

     Probation Violations are referred to as either Technical or Substantive by the Courts.  What’s the difference?  A Technical Violation is an allegation that the probationer didn’t comply with one or more of the terms of probation.  That includes missed probation appointments, behind on monetary obligations, dirty urine tests, or failure to complete a counseling program.  A Substantive Violation is the allegation that the probationer has committed a new crime while on probation or community control.

     When someone is placed on probation, the sentencing judge will ask if they are aware of the maximum punishment for the charge.  They ask that for a reason.  The Judge knows the offender faces the original penalty that they did when they were first placed on probation.  For example if a person is on probation for a Misdemeanor, such as  Domestic Battery, if there is a violation, they are still subject to a year in county jail if they were charged with a misdemeanor.  Or if they are sentenced to probation for Sale of Cocaine, they are still facing up to 15 years in prison, technical violation or not.

     A person on probation for a felony charge can still be sentenced to prison for a dirty urine, for missing appointments, or dropping out of a counseling program.  That is why when someone says “It’s just a Technical Violation”,  I often cringe.  So many people believe that Technical Violations are harmless.  Remember this please:  Whenever you have to appear in front of a Judge who has the authority to send you to jail, the risk is NEVER harmless, it’s just a great outcome that can be harmless.

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     It was if Judge Scriven tipped over the first domino of an intricate design when she ruled earlier this year that Fla. Stat.  893.13 was unconstitutional.  In a lengthy opinion United States District Judge Mary Scriven ruled that Florida’s drug statute was unconstitutional because the Florida Legislature expressly eliminated knowledge as an element of a drug offense in Florida.  Florida is the only state in the country that doesn’t require knowledge to be guilty of a violation of the criminal drug statute. 

     Imagine if you had a friend come over and spend the night, after that friend got in a verbal argument with his/her significant other.  Unbeknownst to you, that friend had illegal painkiller’s(common in Florida) in the backpack that was left in the guest room.  You find the backpack, and intend to drive it over to the friend’s house.  A car runs a red light and hits your car.  You call the police to report the accident, and when they arrive they see the pills in a baggie in the open unzipped backpack.  The police seize the pills (20 Vicodin tablets), and since you don’t have a prescription, you are arrested for Trafficking in Prescription Drugs.  This charge carries a  minimum-mandatory prison sentence, and the fact that you didn’t know of the pills being in the backpack doesn’t matter.  Sounds far-fetched?  In 49 states, yes - in Florida, no.

     At least not until the opinion written by Judge Scriven.  Her opinion held that Florida’s drug statute was unconstitutional, because it criminalizeds the otherwise lawful conduct outlined above.  This federal district court opinion didn’t resolve this issue, however, it just started a complex state/federal appellate journey that lawyers generally only experience in a bar examination question.  The federal trial court ruled that due to the harsh potential penalty (up to 30 years for certain drug offenses, the stigma and overboard regulation of otherwise innocuous conduct), the strict liability drug statute isn’t constitutional. 

     After this ruling, defense attorney’s throughout the state began to raise this issue in any drug case they were defending.  If a stature is ruled unconstitutional, and this ruling is upheld on appeal, then all people who have been prosecuted would have been prosecuted on a statute that in reality doesn’t exist anymore.  So now not only recent arrests, but individuals on probation, and individuals who have been convicted and have already served their sentence, may be entitled to have their charges dropped.  So what does all this mean?

      This issue must proceed through the appellate court system for a Supreme Court ruling once and for all.  Currently, no judge in Pinellas County has agreed with this ruling on this particular issue, they have just denied the motion without even a hearing.  A Circuit Judge in Miami/Dade has granted motions to dismiss on over 49 Defendants due to the unconstitutionally.  So now, it depends on where you get arrested as to whether your charge will be dismissed.  The Second District Court of Appeals has now certified the issue to the Florida Supreme Court.  The First District Court of Appeals has denied the motions to dismiss, and has even gone so far as to rule that the Federal Court ruling, in essence, doesn’t matter.  Appellate Attorney’s will strongly disagree with that assessment.

     What to expect?  Nothing soon.  This issue will probably be ruled on sometime next spring by the Florida Supreme Court.  Regardless, the issue undoubtedly will be appealed federally to the United States Supreme Court.  This legal entanglement will not be over soon.  There is one way to fix this problem in the future.  If the Florida Legislature will amend Florida’ drug statute to conform with the other 49 states that require prosecutors to prove an individual knew that they were possessing illegal drugs, this problem would not continue to occur

      What does this long-standing story have to do with being a client?  There is a big difference between being involved in a case, and being committed to a case.  In every personal injury case, someone is hurt from the action/inaction of another.  This injured client hires an attorney to help get the compensation the law allows.  Should the client stop there once a personal injury attorney is on the case?  NO!!!  The client who stops is merely involved and not committed to the case.

     As a trial lawyer representing those who are injured, I want my client to be committed to their case.  I have made the conscious decision not just to represent them, but to invest my time, my office staff’s time, and my resources (both financial and even emotional), to winning their case.  It is normal to have over $10,000.00 of my firm’s money invested in a case that is ready to be tried in front of a jury.  If I have invested my own money in a client’s case, I want my client to be just as invested in their case as I am.  That being said, how can a client be committed and not just involved in their own case?

     Tell me everything.  Don’t just think you know what I need to know.  You have hired me due to my experience, let me be the judge of what’ important to the case.  Tell your doctors everything.  A doctor who forms an opinion about your injury after knowing about all of your treatment history is a doctor who can not only help you physically recover, but lays the factual groundwork for a more favorable financial compensation since his/her opinion is based upon a complete physical history, and not an edited one.  Follow doctor’s orders.  If you are not to lift over 25 lbs., then don’t.  If your doctor wants you to try 12 weeks of PT, try 12 weeks of PT and don’t give up after 3 sessions because it isn’t convenient to continue to attend those sessions.  As questions come up as your case progresses, ask them/e-mail them;  don’t assume they don’t matter. 

     I often tell client’s that they now have another job – their case.  When a client approaches their case with the seriousness of a job, and not just an afterthought, the end result is much more satisfying.  Those who are hurt, who are honest/straightforward, and those who are committed are the client’s who routinely will have the most satisfactory end result to their accident case.

      How could they possibly be innocent?  Innocent people don’t confess to things they didn’t do, especially murder.  That is a common belief, often times true, but not always.

     Years ago, early on in my legal career, I represented a young man on a felony charge in which he was arrested.  I received the police report that indicated he was identified as one of 5 kids in a pickup truck.   I had previously worked with the prosecutor at the State Attorney’s Office, and the prosecutor told me the victim’s had identified my client as the one who committed the crimes.  The police report also indicated that my client was identified.  He adamantly denied that he did anything wrong, nor did he know that the kid that actually did the crime told anybody what was going to happen.

     My client would qualify for a diversion program that could have the charges dropped in 12 months.  He wanted to go into the military.  We reviewed the case, and I told him based upon what I received from the State Attorney’s Office, it looked like we would lose, and he faced a prison sentence of up to 5 years.  After our long appointment, he left my office scared and in tears.  He called me a couple of days later, his voice shaking, said he didn’t do it and he couldn’t admit to something that he didn’t do.  At the time I thought the diversion program was his best option and continued to suggest it.  He didn’t take it.

     I conducted depositions, and a different prosecutor was now on the case.  During one deposition, he actually found a photopak conducted by an officer that had nothing to do with this case that showed my client was not identified by anybody involved.  In fact the victim said “That wasn’t him”.  The new prosecutor immediately gave me the evidence that proved my client did nothing wrong, and the charges were soon dropped.  My client was relieved, but his mother was concerned that I didn’t believe her son.

     What does that have to do with Confessions and Guilty Pleas of the truly innocent?  Mr. Dixon, Mr. Bevans and the deceased Mr. Ruffin were facing the death penalty in Mississippi in the late 70′s.  If they confessed and pled guilty at least they wouldn’t be killed by the government.  That is a much harsher consequence than my client was facing.  Their lawyers wouldn’t be the first well-meaning lawyers to give a recommendation to avoid a potential death sentence.  The stress of being accused and then executed by the government for something that you didn’t do can indeed cause people to admit to things they didn’t do.

     This doesn’t mean that every confession is false, nor that every plea is invalid.  The case of Dixon, Bevans, and Ruffin proves that it does happen.  It is important to understand in their case, DNA evidence conclusively proved that they did not rape and then murder that young lady.  In fact, the DNA proved who did, and he was subsequently convicted for other violent crimes.  The prosecutor is now investigating prosecuting him for this case as well.

     The next time we read about a horrible crime and that the suspect confessed, let’s continue to look at all of the facts before we close the door just because the suspect confessed.

     In Florida, to be properly insured, the driver must have PIP (Personal Injury Protection – No Fault Insurance) coverage.  This pays ordinarily 80% of the medical expenses and/or lost wages up to $10,000.00 combined , regardless of who is at fault.  So if your car is hit by a negligent auto driver, your PIP insurance is the first to begin paying for these bills even when you are at-fault.  It is when the damages for your injuries will/or have already exhausted your PIP coverage, and yet you still have bills, lost wages, pain and suffering, and other special damages bodily injury coverage comes into play.

     Bodily injury coverage pays for the damages caused by the at-fault driver.  When you purchase Bodily Injury coverage, you are insuring your assets from damages that you might actually cause.  Too many Florida drivers do not carry Bodily Injury Coverage, or if they do, they have very little in limits, often only $10,000.00.  With the cost of care and other expenses, the $10,000.00 coverage will not even cover moderate rehabilitation expenses, let alone expenses needed to pay for most surgeries.

     There is one way to protect you and your family from the driver’s with not enough, or no bodily injury coverage.  Make sure you have purchased enough Uninsured and Underinsured Motorists Coverage.  This coverage you pay for with your insurance to fill the gap in damages from an at-fault driver with insufficient coverage. 

     Consider if a  driver hits your child while your child is riding his/her bicycle in your neighborhood.  Your child did nothing wrong, but now has a broken arm that required surgery when the paramedics transported your child to the hospital.  The surgeon expects a great recovery with no long tem effects.  You are relieved until the bill for the surgery and other medical care bills come in.  These bills far exceed that full coverage the at-fault driver bragged about after hitting your child.

     In the above example, the parent who carries Uninsured/Underinsured Motorist Coverage would also be able to have the injuries their child sustained compensated based upon the coverage they purchased from their own insurance company.  Until Florida drivers are required by law to carry sufficient Bodily Injury coverage, UM coverage is a coverage that not enough consumers understand, and not enough drivers carry.

     UM coverage is so important that the Florida Legislature mandates that insurance companies have each policyholder sign an acknowledgement in order to waive UM coverage, or even have UM coverage lower than their Bodily Injury limits.  Be sure to ask your agent about the limits of your coverage. 

     DO NOT sign a waiver reducing your UM Coverage until you fully understand the coverage you may be declining, particularly when you realize how relatively inexpensive this coverage is compared to the benefits.

     Unfortunately, it’s not simple or easy.  When you are hurt from a car crash that wasn’t your fault, you were hurt from something that’s beyond your control.  Now that you’re in pain, missing work, seeing doctors and other medical professionals, falling behind in bills, and otherwise your world has just been abruptly turned upside down, you want to do something to fix it.  That’s the motivation of an independent person, but in many ways is contrary to achieving the right result in your claim against the at-fault party.

      I say let the doctors be the doctors, if you have an injury there is no magic cure.  Just like there’s no cure for the common cold, if you have a soft tissue injury there is not a physical therapy session that solves this injury overnight.  If you have an injury, your treating doctor won’t know immediately (unless your bones are broken, or an even more traumatic injury) whether you actually need or would benefit from surgery.  Let your doctor use the benefits of all of his or her training and experience as the two of you develope a treatment plan.  Notice I said develope a treatment plan.  You should always express to your doctor ALL of your pain/discomfort complaints, but it doesn’t help to tell your doctor how to treat you.  

     Anyone who has been in a car accident, and has hired a lawyer who achieved a favorable result often will think they know how auto accident cases work.  Unfortunately, there are so many factors in each claim, no one claim is alike.  When clients ask me what they can do, I tell them record keeping is helpful.  Keep track of how much they pay out of their pocket for medical bills and deductibles.  Keep track of hours they have missed from work going to doctors or physical therapy.  Write notes of their pain complaints as they go to their doctor’s appointment so they can remember to give their doctor a more complete picture of pain complaints.

     Client’s need to understand that they can’t win their case themselves by their answers in a deposition.  But they can significantly harm their claim by not telling the truth.  It is normal for a client to be nervous before a deposition or any other type of hearing on their case, but clients who are able to let their lawyers be the lawyers have a greater chance at a good outcome.  Often times the way facts can affect the case can go against common sense, and an experienced trial lawyer understands this.

     So if you are involved in a claim, let your lawyer be the lawyer, you be the client, and you’ll have an easier path  to a good result.

     Timothy Cole always maintained that he wasn’t the rapist.  He was offered a pardon, and turned it down since he would have to admit guilt in the rape of the college student.  His asthma resulted in hospitalization while serving the sentence.  The dust and institutional air was having a devastating effect on his lungs.  On December 2, 1999 he died in prison from his asthma.  He was a 39-year-old who was sent to prison at the age of 25 for a crime he didn’t commit.

     The actual rapist sent a letter to a Judge confessing to the rape.  That Judge dismissed it.  Another letter was sent to the clerk of court that was never acted upon.  Years after Tim’s death, the rapist sent a letter to Tim’s family, not knowing that he already died in prison.  The prosecutor’s office finally, with the help of the Texas Innocent Project had the DNA evidence tested.  The results conclusively show that Timothy Cole is innocent of the crime that sent him to prison where he died.

     After the results, even the victim was on the side of exonerating Tim.  Finally, 8 years after his death, Timothy Cole was declared to be an innocent man.  Governor Perry finally signed the pardon for Tim years after he died of complications from his asthma in prison.   Texas is currently leading the nation in the number of wrongfully convicted, while Florida leads the nation in the number of wrongfully convicted murders. 

     The Judge at Timothy Cole’s trial refused to allow the defense to present evidence that implicated the actual rapist as a suspect, and allowed forensic evidence without requiring the technician who actually did the testing. 

     Often I’ll hear people say, “I know he’s guilty, why waste the time and money of a trial”  How many innocent people like Timothy Cole would die in prison without aggressive defense attorney’s just because someone appears to be guilty.  How many hundreds – perhaps thousands of innocent people have been sentenced for every truly guilty person who lucked out in trial?

      Society, our own communities, and especially the victim’s of crimes have a right to punish the perpetrators, but we cannot lose sight of the Timothy Cole’s of this country that have died in prison for crimes they truly didn’t commit.  It would be nice to think that there will not be more innocent people convicted and ultimately die in prison, but that conflicts with history.  Without the right to a truly fair trial, there will be many more Timothy Cole’s than we already have.

     Florida leads the nation with 60% of juveniles sentenced to life without the possibility of Parole.  There are only 129 juveniles serving a sentence of life without possibility of parole in the entire country, and 77 of them are in Florida.  No one of these 129 cases involve a death.

     This past Monday, the United States Supreme Court ruled that this sentence violates the prohibition against cruel and unusual punishment.  The court did not rule that Graham should be released, just that he should be allowed to try to show that he has matured/rehabilitated to the extent that he could be considered for release.  Since Florida has no parole system, before this ruling he and 60% of  juveniles with the same sentence had no chance.

     It should also be noted that the adult sentencing guidelines called for a minimum sentence of 5 years, and his probation office was recommending a sentence of 4 years.  Even the prosecutor was not seeking a life sentence, but a sentence of 30 years.  The original sentence he received is calculated to be approximately twice as long as the average murder sentence in Florida.  This despite the recognized fact that a 16 or 17-year-old is still learning, and still maturing.  Because of his sentence he doesn’t even qualify for prison classes to get a GED.

     While this ruling doesn’t guarantee his release anytime soon, juveniles that commit crimes that don’t involve death, at least have some hope to show to a court that if they do rehabilitate themselves they have a chance to be released someday

     For instance, you have been rear-ended by a delivery truck, you have a herniated cervical disk with total unpaid medical expenses totaling $25,000.00.  You doctor says you will need surgery to relieve some of your symptoms.  This surgery is estimated to cost 15,000.00.  You let the adjuster know this, he then offers you $60,000.00 to settle the entire claim.  You think that this is livable since you’ll be paid $20,000.00 for your pain and suffering, and all of your medical expenses will be paid.  The adjuster doesn’t tell you that the company has a business policy with bodily injury coverage of $250,000.00.  You accept the settlement, sign a release, have surgery, the bills start to come in, and you now realize the problem.

     You now also have bills from the anesthesiologist, the surgical facility, post-surgery rehabilitation, and medication expenses.  Your surgery was successful, and your doctor also lets you know that since you are 45, you should have a good recovery, but you might also in the future need to address the disks above and below your surgery.  Your bills now total $65,000.00, and the adjuster says there is nothing he can do, you agreed to the settlement, thus closing the claim.  Your doctor didn’t tell you about the other expenses because he doesn’t do the billing for his practice, and he is unaware of the other expenses from the other’s that helped with the surgery.

     No one lied to you, yet you are now in debt from an accident that was not your fault.  The adjuster isn’t there to protect you.  The doctor’s are there to help you medically, but they are not there to protect you. 

      A PERSONAL INJURY TRIAL LAWYER IS THERE TO PROTECT YOU, AND PURSUE A RECOVERY THAT WILL FULLY COMPENSATE YOU FOR YOUR INJURY.

     In the example above, an experienced personal injury attorney representing you in the car crash would have recommended you reject that settlement offer.  An experienced trial lawyer representing auto accident victim’s would know of future medical bills, future medical needs, lost wages, and possible permanent injury.  In the above example, this type of injury could result in the insurance company tendering a substantial portion if not the entire policy amount.  Say you get a recovery of $180,000.00.  Even with the percentage to the attorney of 1/3, with all of the $65,000.00 medical bills paid from the settlement, you would now have a net recovery of $55,000.00.   This time with no surprises.

      A Trial Lawyer’s  experience is not just in the courtroom, but in helping the injured through the maze of recovering from an injury and protecting  their client’s from unintended consequences.  That’s why insurance companies continue to attack trial lawyers, and they don’t want the injured to have representation.  Never hesitate to speak with a lawyer when you are injured.  The consultation is free.  The cost of unintended consequences is not.