Don’t Forget your Tire Safety Check

Everyone loves a road trip. When setting out, it’s important to check your car’s safety features and standard equipment before you go. One essential part of this check is your tires. Tire failure is one of the major causes of accidents that are unrelated to driver error. Tires require regular maintenance in order to perform properly. All car owners should check tire pressure, size, general condition and alignment at regular intervals, every 3000-5000 miles.

The most common reason for tire failure is under inflation. Tires that are not inflated properly can cause a vehicle to destabilize, skid and fail to brake. The inflation requirements are listed in the owner’s manual of the car and are also posted on an information sticker on the driver’s side door. Drivers should take care to inflate tires according to manufacturer’s instructions and keep tire pressure at that level at all times.

In addition to inflation, correct installation of tires is a critical element in the car’s performance in an accident. If a tire is not installed properly, is not positioned or lubricated as directed, the tire can blow out, causing the driver to lose control of the car.

Tires can also fail due to manufacturing defects.  Whatever the issue, when a tire blows it can be a terrifying event. If you have a blowout on a highway, instructors suggest keeping your foot on the gas in order to avoid braking. As soon as possible, let off the gas and allow the car to slow and move over onto the shoulder.

In the moment it is hard for some people to keep a cool head and remember not to brake. Braking at high speeds, especially during a blowout can cause the car to careen into oncoming traffic.

Maintaining tires is an essential part of practicing car safety. If you do have an accident, stay as calm as possible. Call for help, call the police, and get out of the way as quickly as possible.

In the aftermath of an accident it can be hard to know how to get the help you need. That’s when it’s time to call an attorney who can take your case seriously. A member of the litigation team at Lytal, Reiter, Smith, Ivy & Fronrath will take you through the steps needed to get you compensation for your injuries. Call our West Palm Beach office at 561-655-1990 or contact us online to schedule your free consultation.

New Federal Safety Regulations for Rentals

On June 1, a new federal law went into effect regulating the safety of rental cars. According to the National Highway Traffic Safety Administration (NHTSA), the Safe Rental Car Act requires all rental cars to be compliant with current safety standards and to be free of defects and open recalls prior to rental to customers. The bill was made into law during the Fixing America’s Surface Transportation (FAST) Act of 2015.

Also known as the Raechel and Jacqueline Houck Safe Rental Car Act, the bill was named in memory of two sisters who were killed in a rental car that had been recalled for a safety defect but had not yet been repaired. The new law requires all vehicles that have received recall notices to have the necessary repairs before they are rented or sold to consumers.

The law would apply to hundreds of thousands of vehicles that have been recalled this year as part of the Takata airbag recall. The faulty airbags, installed in Toyota, Honda, BMW and dozens of other models can explode on impact, propelling hot gasses and scraps of metal around the inside of the car.

In a car accident, there are a number of safety features that can affect the condition and survival of the driver and passengers involved. These include:

  • Seat belts — still one of the leading life-saving safety features, seat belts are mandatory in every state in the nation;
  • Airbags — standard in all cars since 1998, airbags save thousands of lives a year despite the risk of injury from the bag itself;
  • Antilock braking systems — designed to prevent brakes from locking in an emergency, ABS automatically pumps the brake, allowing the driver to maintain control in a skid situation;
  • Traction Control — a new feature that limits wheel spin capacity, allowing a driver to maintain maximum traction in et or icy conditions;
  • Electronic Stability Control — standard equipment since 2012, ESC can prevent a vehicle from rolling over when turning;

There are numerous up and coming safety features that remain in trial markets and testing labs. In most cases, luxury vehicles are the traditional testing ground for new features, so the rental market may lag behind for a while.

If you are involved in an accident, either in your own car or a rental car, contact a personal injury lawyer immediately. You may be eligible to collect money to pay your medical bills and more. A member of the litigation team at the Law Office of Lytal, Reiter, Smith, Ivy & Fronrath is on call to help you with your case. Call our West Palm Beach offices at 561-655-1990 or contact us online to schedule your free consultation.

Takata Airbag Explosion

The horrible story continues as Takata airbags injure and take lives all over the United States of America.  The airbags have been tied to at least 14 deaths and many more serious injuries and is part of the largest automotive recall in history.  Inflators in about 64 million Takata airbags contain a defect that may cause them to explode and send metal fragments into cars as shown above.

This story from Texas just exacerbates the craziness of the problem as reported in the New York Time, August 29, 2016.

had been carrying the Takata parts. Engine parts were found as far as two miles away from the wreckage, according to some witnesses.

“A woman was killed in her home and four other people were injured when a truck carrying Takata airbag parts and explosives crashed and detonated on a Texas road last week, the company and local authorities confirmed on Monday.

The blast was immense — the victim’s remains were not located for two days — highlighted the potency of the explosives used by Takata in its airbags as a propellant to activate its bags in a car crash.   http://www.nytimes.com/2016/08/30/business/airbag-propellant-bound-for-takata-factory-detonates-en-route.html?ref=business&_r=0

Which automakers are affected?

  • BMW
  • Chrysler
  • General Motors
  • Ferrari
  • Ford
  • Honda
  • Mazda
  • Mercedes-Benz
  • Mitsubishi
  • Nissan
  • Subaru
  • Toyota
  • Volkswagen
  • Jaguar/Land Rover

Which models are most at risk?

Regulators are urging drivers of the older recalled Honda or Acura models listed below to stop driving their vehicles and have them fixed immediately because they are most at risk of rupturing during airbag deployment.

They are:

    • 2001-2 Honda Civic
    • 2001-2 Honda Accord
    • 2002-3 Acura TL
    • 2002 Honda CR-V
    • 2002 Honda Odyssey
    • 2003 Acura CL
    • 2003 Honda Pilot

So what can you do?

If you have received an automaker’s recall for a defective airbag, you need to schedule the service for it right away as there may be a long waiting period before the replacement part can be replaced.  If replacement parts aren’t available yet for your vehicle, your dealer may be able to offer you a loaner car.

Some rregulators are urging drivers of the older recalled Honda or Acura models listed below to stop driving their vehicles and have them fixed immediately because they are most at risk of rupturing during airbag deployment. They are:

    • 2001-2 Honda Civic
    • 2001-2 Honda Accord
    • 2002-3 Acura TL
    • 2002 Honda CR-V
    • 2002 Honda Odyssey
    • 2003 Acura CL
    • 2003 Honda Pilot

In May, 35 million to 40 million airbags were added to the recall, so if you checked before May and were told your vehicle was not affected, it would be a good idea to check again.  You can do a recall search by VIN on the SaferCar.gov website, which is run by the National Highway Traffic Safety Administration.  It is urged to check it frequently as it is updated on a constant basis.

Do not disable your airbag.  It is illegal and your airbag is still more likely to save you in a crash, not hurt you.  But if your airbag has been recalled — and it is not an older Honda or Acura listed above — regulators emphasize that the airbag should be replaced as soon as possible.  See the National Highway Traffic Safety Administration’s frequently asked questions for more information.

If you have already had your airbag replaced it will need to be replaced again in a few years, because they can degrade over time.

More detailed information and suggestion can be read on line at: http://www.nytimes.com/interactive/2016/business/takata-airbag-recall-guide.html?src=me

If you or a loved one has been injured by a defective airbag, contact the Law Firm of Lytal, Reiter, Smith, Ivey & Fronrath to answer any questions you may have or schedule a free consultation.  The call and consultaion is free and there is no obligation.  You may have a case but you have to make the call to to our West Palm Beach office at 561-655-1990.

When a Plane Crashes into a House, Who is Liable?

In most cases, when a plane crash occurs, those killed or seriously injured are the pilots and passengers. In many cases there is an investigation to determine who or what is responsible for the crash, and assign legal and financial responsibility. If, however, a plane crashes and people on the ground are injured, it may be more complicated.

In a recent accident, a small plane crashed in a residential area in Pompano Beach. The pilot, a flight instructor, was teaching two students, practicing take off and landing procedures when the plane took a nosedive and caught fire. The pilot and both passengers were badly burned in the crash.

According to witnesses on the ground, the plane took a sudden turn shortly after taking off and clipped the roof of a home. The plane continued to descend and move along its route, eventually crashing to the ground. It was a lucky accident that there were no children in the pool or backyard at the time. Had it been school vacation, there may have been more injured.

While the investigation into the crash is still ongoing, it is not immediately apparent who or what caused the accidents. There are a number of factors to consider when determining liability in a small plane accident:

  • Pilot negligence
  • Air traffic error
  • Equipment malfunction
  • Equipment maintenance negligence

Most crash accidents involve a combination of negligence and product liability, meaning both failure of the responsible party to act within an expected range of behaviors, and failure of a piece of equipment to function as intended or expected. In this scenario, liability is shared between the negligent person(s) and the manufacturer of the faulty part. In some instances a crash is caused by air traffic control error, and the liable party is a federal agency such as the Federal Aviation Association (FAA).

Many people survive small plane accidents, though many sustain serious burns and injuries that require months and years of treatment. It is crucial that a person injured in a plane accident receive sound legal advice in order to collect the appropriate compensation.

If a plane crash has affected your life, speak to an aviation accident attorney at the Law Office of Lytal, Reiter, Smith, Ivy & Fronrath. Our litigation team is waiting to hear about your case. Call our West Palm Beach offices at 561-655-1990 or contact us online to schedule your free consultation.

Self-Driving Car Implicated in Fatal Crash

According to the National Highway Traffic Safety Administration (NHTSA) most car accidents are caused by driver error. New technologies have begun hitting the market that attempt to remove driver error from the driving experience, hoping to reduce the chance of accident. In a recent tragedy in Florida, a man was killed when his driverless Tesla collided with a truck.

In an apparent technological failure, the car’s sensors failed to identify the side of the truck, which was turning, misreading the bright white paint as a bright sky. The car failed to engage its braking system and crashed into the truck. Upon investigation, police concluded that the driver was watching a movie at the time of the crash.

The accident calls into question the wisdom of removing the human factor from the driving experience. Bearing in mind that most accidents involve some degree of driver error, this may be a worthy goal.

Most common causes of car accidents are:

  • Weather — errors in appropriate speed, following distance, crossing traffic for left turn, etc. due to rain, snow or fog;
  • Speeding — driving at a speed that is not appropriate for the conditions;
  • Drunk driving — impaired judgment affecting following distance, changing lanes, disobeying traffic signals;
  • Distracted driving — taking eyes off road due to texting, using handheld phone or GPS systems;
  • Jumping red light or stop sign — misjudging timing of oncoming traffic or turning traffic at a light or stop;

Driver error is most common among new drivers, ages 17-25. Among the other leading factors in car accidents — inclement weather and impaired judgment — inexperience plays a major factor. While the idea that technology can eventually replace drivers does address the dangers caused by human error, it does not address the issue of incorrect judgment, something computers are apparently vulnerable to.

Accidents happen, and people are often injured as a result. When a driver or passenger is injured in a car accident, they may be eligible to collect monetary compensation to pay medical bills, make up for lost wages or buy a new car.

If you’ve been injured in a car accident, contact an auto accident attorney at the Law Office of Lytal, Reiter, Smith, Ivy & Fronrath in West Palm Beach at 561-655-1990 or contact us online to schedule your free consultation.

The Automobile is nearly 100 years old

The Automobile is nearly 100 years old and certainly Karl Benz, founder of Mercedes Benz automobiles, the first gas powered cars on the road, would roll over in his grave if he knew how bad a shape the auto industry is in today.

The Law Firm of Lytal, Reiter, Smith, Ivey & Fronrath is located in West Palm Beach, Florida and was established in 1985 as a personal injury law firm for the plaintiff.

At no time in history has there been so many recalls in the auto industry.   Defective Airbags, Ignition switches, transmission coming out of gear and now, the doors are flying open.  Of all things, Ford Motor co. has issued a recall because the doors won’t stay closed!

Millions of cars on the road today are simply not safe to drive!  Now the auto industry wants us to believe that autonomous cars will rule the road.  They can’t even keep the door on and they want the public to believe the car will drive by itself?   Defective auto parts are injuring and killing people.  We see this at our firm every day.

So what should you do to protect yourself in the event that the car you own or are driving happens to be one of these defective cars.

Here are a few tips.

First, if you have received a recall notice from an auto manufacture for your car, schedule the maintenance immediately, don’t wait.  The service is unusually free so there is no reason to postpone the service.

Second, if you have not received a notice but want to know if your car has any issued recalls, go to www.recalls.gov.  Look up your car and see if it is listed and what the recalls were issued for, if any.  Very easy!  Depending on the defective part, you may want to call your dealer and get it scheduled right away even if you have not received the official recall notice.

Third, you may want to see if your vehicle is listed in a class action law suit, similar to the one Volkswagen is now engaged in.  Look up www.classaction.org.  Should you find a class action on your car, don’t go it alone.  These are tricky waters to navigate.  Call attorney or give us a call and we will help you or offer and excellent referral.

Finally, if you or a loved one has been injured by a defective product, auto or otherwise, call our firm.  We will answer any questions you have and provide legal representation if you have a case.

Call Lytal, Reiter, Smith, Ivey & Fronrath at 561-655-1990 or visit our web site at www.foryourrights.com.

Surgical Errors: Can Newer Laws Affect Damage Awards from Older Injuries?

Doctors diagnosed Kimberly Ann Miles with melanoma in 2002 and successfully the tumor and all traces of the cancer in an outpatient procedure in December 2002. Just to be safe, Miles sought a second opinion from surgical oncologist Dr. Daniel Weingrad shortly thereafter. Dr. Weingrad recommended a second surgery, which Miles underwent in January 2003, despite the fact that postoperative test results showed no residual melanoma from her previous surgery.

After the second surgery, Miles experienced complications that hospitalized her for four days and did not resolve until April 2003. As a result of these complications she was left with permanent swelling, ongoing pain and limited mobility. She sued Dr. Weingrad for surgical malpractice in 2006. A jury verdict awarded her $16,104 in economic damages, $1.45 million in non-economic damages for pain and suffering, as well as, $50,000 to her husband for loss of consortium.

Dr. Weingrad filed a motion to limit the non-economic damages to $500,000 to comply with a statutory cap under Fla. Stat. 766.118, which came into effect on September 15, 2003. The trial court denied his motion noting that the statute was not retroactive, but the Third District Appeals Court reversed because they said that Miles had no vested right to a particular damage award.

On remand, the trail court entered judgment in accordance with the statutory cap, and Miles appealed. The case reached the Florida Supreme Court who disagreed with the decision of the appeals court. They ruled that retroactive application of a substantive statute cannot infringe upon a litigant’s substantive and vested rights.

Doctors and hospitals facing a surgical or medical malpractice lawsuit will often try to use statutory loopholes and other tricks to save money. There are many nuances and details that must be considered and addressed to get you the compensation you deserve. We see from the case above that medical professionals cannot infringe upon your substantive and vested rights by applying new laws to old injuries.

The Florida medical malpractice attorneys at Lytal, Reiter, Smith, Ivey & Fronrath have experience recognizing surgical errors and successfully litigating these types of medical malpractice cases. If you believe you have been the victim of a surgical error, contact a Florida medical malpractice attorney from our firm. We are here to help you recover the compensation you deserve. Call today at 561-655-1990 or toll free at 1-800-654-2024.

How Do Florida Courts Determine Strict Liability in Asbestos Cases?

William P. Aubin worked as a supervisor for his father’s construction company. In the course of his work, Aubin was exposed to drywall joint compounds and ceiling texture sprays that contained asbestos manufactured by the Union Carbide Corporation. Aubin eventually developed malignant peritoneal mesothelioma, a fatal, incurable cancer in his abdomen know to develop from asbestos exposure.

Aubin sued Union Carbide and other companies claiming that inhalation of the dust and fumes created by their products had exposed him to asbestos, which caused his disease. Aubin further claimed that he had not known these products contained asbestos or that he had been inhaling toxic fumes on the worksite. A jury verdict in Aubin’s favor found Union Carboide liable for $6,624,150 in damages under theories of negligence and strict liability, defective design and failure to warn.

The Third District Court of Appeal reversed. They claimed (a) the trial court should have used a “risk utility test” for the defective design claim, (b) that a design defect was not the cause of Aubin’s disease and (c) that the jury should have been instructed on the “learned intermediary defense.”

The Supreme Court of Florida disagreed, reinstated the trial court decision and sent the case back to the appeals court with specific instructions. It established the following points in dealing with toxic torts:

  1. Design Defects – according to Florida precedent, strict liability design defect claims should be decided using the “consumer expectations” test, placing the burden on the manufacturer to compensate victims of unreasonably dangerous products and avoiding risks of harm.
  2. Causation – the plaintiff only needed to show that the defective design of Union Carbide’s product naturally and directly produced or substantially contributed to his disease. He did not need to show that Union Carbide’s defective asbestos product was somehow more dangerous than other defective asbestos products.
  3. Learned Intermediary – learned intermediaries, like distributors, can provide warnings to consumers about the dangers of a manufacturer’s product, and it is a question of fact (usually for the ju­ry) to determine whether such reliance was reasonable. Here the Court found the jury instructions as a whole were not misleading, and did not warrant a retrial.

Toxins are highly dangerous, and manufacturers need to take responsibility for toxic products they introduce into the market. As this case makes clear, a good legal team can expose corporations who poison consumers. The lawyers at Lytal, Reiter, Smith, Ivey & Fronrath have the experience and resources to go up against big corporations who sell toxic products. Call today to schedule a free initial consultation.

The Recent Decision in Wilde: Is my cause of action “under” or “limited by” the DRAM Shop Act?

The Fourth District Court of Appeal’s recent decision in Okeechobee Aerie 4137, Fraternal Order of Eagles, Inc. v. Wilde, 41 Fla. L. Weekly D1783a, 2016 WL 4132105 (Fla. 4th DCA Aug. 3, 2016) seems to answer that very question.

What Happened in Wilde?:  In Wilde, the Appellee, Rodney Wilde (“Wilde”), suffered severe injuries at the hands of a drunken motorist, Leroy Felt (“Felt”).  While “heavily inebriated,” Felt caused his vehicle to crash into Wilde (the “Accident”), while Wilde was operating his motorcycle.  Felt, “at least partially,” was inebriated after consuming alcoholic beverages purchased from Okeechobee Aerie 4137, Fraternal Order of Eagles, Inc. (the “Eagles”).  Wilde, and his wife, sued the Eagles, “alleging they were negligent and in violation of section 768.125, Florida Statutes, for serving alcohol to ‘a person habitually addicted to the use of any or all alcoholic beverages.’”

 The jury found in their favor and awarded Wilde and his wife $11,000,000.

 At issue on appeal?  On appeal, the Eagle did not challenge the jury’s determination that Felt was known to be a habitual drunk.  Rather, with regard to the DRAM Shop Act (as well as relevant arguments made pursuant to the “Responsible Vendor Act”), the Eagles contended:

  • the “only cause of action here is under section 768.125, Florida Statutes” (the “DRAM Shop Act”) and, thus, “evidence of negligence is irrelevant”;
  • the trial court’s admission of evidence regarding the Responsible Vendor Act was reversible error;
  • the trial court’s jury instructions on Responsible Vendor Act was reversible error; and
  • the trial court reversible erred in not including Felt as a Fabre Defendant on the verdict form.

The Fourth District held that there is no cause of action “under” the DRAM Shop Act; rather it’s a “protective statute:  As held by the Fourth District:  “From its clear language, section 768.125 does not create a cause of action.  Rather, it is a protective statute meant to eliminate a cause of action where one might otherwise exist, except in certain circumstances”—meaning, negligence is your underlying cause of action, but that action is limited, or constrained, by the requirements of section 768.125.   This was explained by the Florida Supreme Court in Ellis v. N.G.N. of Tampa, Inc., 586 So. 2d 1042, 1046-49 (Fla. 1991), where, as stated by the Fourth District, the court:

  1. “described its prior case law expressly rejecting the claim that section 768.125 created a cause of action”; and
  1. simultaneously recognized that “although limited by the provisions of section 768.125, there is a cause of action against a vendor for the negligent sale of alcoholic beverages.”

Hence, the Fourth District held that the Eagles were “incorrect in their assertion that the only cause of action here was under section 768.125 and the evidence of negligence was irrelevant.  The cause of action was negligence; however, it simply was negligence that was alleged to be limited by section 768.125.”  (emphasis added).

The Responsible Vendor Act (the “RVA”):  The Fourth District held that “the evidence of and the instructions on the RVA” were not appropriate “in the negligence action brought by the Appellees.”  The Fourth District held this was so because the “RVA is a voluntary statute that imposes no duties on any vendor.  Instead, the RVA serves to protect a vendor from certain administrative penalties resulting from serving an underage person or from selling or allowing the sale of illegal drugs on its premises.”  See § 561.706, Fla. Stat.  Hence, a vendor “may choose to comply with the RVA’s certification provisions or to not comply, and suffer no harm whatsoever because of that decision.”  Since “the RVA cannot be violated,” it may not serve as evidence of a breach of standard of care.  As such, the evidence and jury instructions permitted to the contrary by the trial court constituted reversible error.

Derivative Liability- Felt is not a Fabre Defendant:  The Fourth District held that Felt was properly excluded from the verdict form as a Fabre Defendant because the Eagles’s liability in the action was “derivative.”  Derivative liability is that which “depends upon a subsequent wrongful act or omission by another.”  As held by the Fourth District, because the risk of Felt’s tortious conduct is the very risk that made the Eagles’s conduct negligent in the first place, his “foreseeable conduct therefore cannot be used to reduce the Eagles’ responsibility,” deeming the Eagles’s liability derivate in nature and precluding Felt as a Fabre Defendant on the verdict form.

 The Impact of Wilde:  The impact of Wilde is tantamount.  For many years, practitioners have often modeled their pleadings and defenses under the supposition that section 768.125, itself, abrogated common law negligence and created a statutory cause of action. Wilde clarifies that this is not the case.  Now, practitioners should frame their causes of action involving the DRAM Ship Act as negligence actions (not actions “under” section 768.125) limited by the “protective” elements of section 768.125.  If a practitioner has a DRAM Shop case pending, and if his or her pleadings are not in accordance with Wilde, they should move to amend immediately to prevent any negative consequences in motion practice, during trial, or on appeal, as ones pleadings must conform to the evidence presented.  See Fla. R. Civ. P. 1.190(b).  It also reaffirms the maxim that the drunkard may not, as a matter of law, be listed as a Fabre Defendant on a verdict form, as the vendor’s liability is derivative in nature.

 

Anthony M. Stella, Esq.
Appellate & Litigation Support Attorney
Lytal, Reiter, Smith, Ivey & Fronrath LLP
515 N. Flagler Drive, Ste. 1000
West Palm Beach, FL 33401
Direct Line: (561) 820-2235
Main Line:   (561) 655-1990

Why Do I Need an Appellate Practitioner?

Often, trial counsel find themselves in the predicament of having spent countless hours (and, worse, dollars) during discovery and preparing a case for trial to only find themselves in the situation of having lost their case in either a pre-trial motion (such as a motion for summary judgment) or, at a greater expense, during trial.  They are now faced with the ever-so-daunting questions:  Do I appeal? How much will it cost? Will I win?  Trial counsel may have also succeeded, but is now faced with an appeal by opposing counsel that could jeopardize their hard-fought victory (and million-dollar verdict) before the trial court.

In such situations, the employment and representation of an appellate practitioner is vital to trial counsel’s success on appeal.  An appellate practitioner will provide the keys to successfully obtaining the much-needed reversal of the trial court’s decision, or that affirmance of a multi-million dollar jury award.   And even before trial court proceedings have concluded, an appellate practitioner can provide important advice concerning complex legal issues and preservation of issues and objections that may be essential and necessary for success on appeal.  The mere highlights of the help an appellate practitioner can provide trial counsel are:

1) Time and Money:  A seasoned appellate practitioner should be able to give you a fair assessment regarding the depth of the issues on appeal, the research required, the time needed for briefing, and whether oral argument will be needed (or, in some cases, ordered by the court).  These are the broad strokes of an appeal and what typically constitute the majority of appellate costs.  By being able to predict them, an appellate practitioner (as opposed to a trial attorney) should be able to give you a fairly accurate approximation of the amount of time and money your appeal would or will need.

2) Likelihood of Success:  Succeeding on appeal is difficult.  Period. Appellate courts are remiss to overturn trial courts and undue what are typically expensive trial court proceedings without good cause. Further, the law favors finality, meaning that the law itself (and not just the judges) favors affirming the trial court over reversing, and, as such, requires a “presumption of correctness” on appeal for the trial court’s decision below.  As a result, there is only about a 20% chance of success on appeal. This low likelihood of success on appeal is the prime reason why representation by an appellate practitioner is important. If you lost below, an appeal is your last shot at success.  An appellate practitioner who knows the appellate process and the application of the law on the appellate level will provide that last/best opportunity to obtain that vital “reversal” and “reset” of the case below, or obtain that much-needed affirmance of a jury’s verdict.

3)  Preservation of the Record:  The appellate court will only consider matters that constitute the record below.  If something is not part of the “record below,” the appellate court will likely not consider it.  An appellate practitioner will know how to “build the record” during the lower court proceedings (favoring the involvement of appellate counsel during the trial court proceedings), or, if needed, supplement the record appropriately after an appeal has been filed.

4) Preservation of Issues/Arguments/Objections:  Absent “fundamental” error, the appellate court will only consider those arguments, issues, and objections properly presented and preserved during the trial court proceedings.  An error is fundamental only when it is so egregious that is vitiates the fairness of the entire proceedings.  Such errors are severe and exceptionally rare.  Accordingly, in most instances, arguments on appeal concern only those arguments, issues, and objections properly presented and preserved before the trial court.  The advice of an appellate practitioner will provide trial counsel with the “know how” regarding the proper presentation and preservation of arguments and objections on appeal.  If preservation of error becomes an issue, an appellate practitioner is best equipped to climb the mountain of fundamental error and obtain reversal, or withstand any such attack if the decision below was favorable.

For these essential reasons alone, retaining an appellate practitioner when faced with, or the possibility of, an appeal provides the highest likelihood of success in what is, often, either: (1) a party’s last chance for success in his case, or (2) a party’s defense against the unraveling of a successful outcome before the trial court.

a-stellaIf you are in such a situation, and in need of an appellate practitioner for help on an appeal or in a litigation support capacity, please contact the author of this post,  Anthony M. Stella, Esquire, the Appellate and Litigation Support Attorney for Lytal, Reiter, Smith, Ivey, & Fronrath.  Anthony has extensive experience in appellate matters of all kinds, as he served as a staff attorney at Florida’s Fourth District Court of Appeal, a senior staff attorney at the Florida Supreme Court, and has over four years of appellate and litigation experience in personal injury, products liability, medical malpractice, and commercial law.  His e-mail is astella@foryourrights.com, and his direct line is (561) 820-2235.  He is available at any time for a free consultation regarding the propriety of your or your opposing counsel’s appeal.