THE IMPORTANCE OF WORKING WITH A FIRM WITH TRIAL EXPERIENCE FOR YOUR INJURY CLAIM

By Aubrey O. Dicus, Jr., Shareholder

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 absolutely 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 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:

  1. 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.

  1. 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.

  1. 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.

  1. 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.

 

Estate Planning: How to Save Taxes with Qualified Charitable IRA Rollovers

By: Rachel Drude-Tomori, Esq., LL.M.

The Tax Cuts and Jobs Act of 2017 increased the standard deduction in 2019 to $12,200.00 for individuals and to $24,400.00 for those married filing jointly. This means that less people will be itemizing and more people will be using the standard deduction. In fact, it’s estimated that 21 million taxpayers will stop taking the charitable deduction under the TCJA. How can taxpayers who will not be itemizing still take advantage of their charitable bequests?

The answer is through a “Qualified Charitable IRA Rollover,” which permits an individual over 70-1/2 to make up to $100,000.00 per year of charitable gifts directly from an IRA. By making a qualified charitable distribution (“QCD”) from an IRA, the individual will not have to report the IRA distribution as taxable income, although the individual will not be able to claim an itemized charitable income tax deduction for the gift. In other words: reduce your taxable income by converting all or a portion of your taxable Required Minimum Distributions (“RMDs”) to non-taxable QCDs to fulfill your charitable pledges and gifts to save federal income tax.

Given the increased standard deduction under the TCJA, most taxpayers are better off reducing their gross taxable income vs. claiming an itemized deduction. Consider the following example of how a Qualified Charitable IRA Rollover can reduce your income taxes:

  • In 2019, Susan and Russell, a retired couple in their mid-70s, had taxable income of $200,000.00, of which $40,000.00 came from RMDs from their IRAs. They made $20,000.00 in charitable gifts from their post-tax income. They paid $8,000.00 in county property taxes, which is less than their combined standard deduction of $24,400.00, so they will not itemize and therefore cannot deduct the $20,000.00 in charitable gifts. In this scenario, they will pay approximately $30,500.00 in federal income tax.
  • Same facts, but in 2018, Susan and Russell learned about making gifts using a Qualified Charitable IRA Rollover from their Estate Planning Attorney, Rachel Drude-Tomori. Instead of using post-tax income to make their charitable gifts, they use $20,000.00 from Susan’s IRA to make the gifts, and they inform their CPA accordingly. Their taxable income will be reduced by the $20,000.00 QCD, and they will pay approximately $26,000.00 in federal income tax, meaning an estimated tax savings of $4,500.00!

The above example makes it clear that in almost every case, individuals age 70-1/2 and older should be utilizing QCDs for their annual charitable giving. What’s more, most IRA carriers now provide their clients with checkbooks linked directly to their IRAs. For more on creative Estate Planning using IRAs and retirement assets, please contact Rachel Drude-Tomori, Esq., LL.M. at rdrud@brdwlaw.com.

 

What You Need to Know When Selling Your Primary Residence in Florida

By Andrew R. Pardun, Esq., LL.M.

Are you considering selling your primary residence in Florida? If so, there are a few things you must consider that could save you a bundle on your real estate and capital gains taxes.

The first thing to consider is capital gains. The Tax Cuts and Jobs Act excludes up to $250,000.00 for single taxpayers and $500,000.00 for married taxpayers (“Threshold”) on realized capital gains on the sale of the taxpayer’s principal residence. To calculate capital gains, you take the price paid for the residence plus the cost of any improvements (“Basis”) and you deduct the Basis from the sales price giving you the capital gain (“Capital Gain”). Capital Gains are then multiplied by the applicable capital gains tax rate to arrive at taxes due. Therefore, it is important to keep good records of all improvements made to your home throughout the years as improvements will increase your Basis and decrease your Capital Gain. If your Capital Gain exceeds the Threshold you may want to consider a 1031 or “like-kind” exchange which will allow you to defer your tax liability to a later date.

Some more important considerations to keep in mind in Florida are the Homestead Exemption, Save Our Homes Cap, and Portability. Florida Residents are permitted to claim a Homestead Exemption on their primary residence which, among other things, lowers the amount of property tax they pay annually.  Along with the Homestead Exemption comes the Save Our Homes Cap which limits increases in the assessed value of a primary residence to the lesser of 3% or the Consumer Price Index (CPI). When a Florida Resident sells their primary residence they have the ability to transfer their Homestead Exemption/Save our Homes Cap to their new residence and lock in the benefits previously enjoyed by the prior residence (this is known as “Portability”). Portability can equate to large savings in annual property tax and will most likely save you a ton of money in the long term.

EMPLOYMENT LAW IN THE #METOO ERA

By Caitlin C. Szematowicz, Partner

The #MeToo era initially addressed the issue of sexual harassment in politics and the entertainment industry. However, the movement has since shifted to the workplace. Claims of workplace harassment have greatly increased and many employers have changed their employment practices as a result.

Historically, many employers required that claims of sexual harassment be handled in private arbitration. They also required that any settlement agreement concerning workplace harassment include confidentiality and non-disclosure provisions. Such requirements have recently drawn criticism from advocates of the #MeToo era, who argue that such mechanisms shield businesses from public scrutiny and allow the harassers to continue their behavior.

To address these various concerns, numerous pieces of state and federal legislation have been enacted or proposed. In fact, over ten states have already passed laws which bar an employer from inserting a non-disclosure provision in workplace harassment settlement agreements. Further, several federal bills have been proposed to address the issue of sexual harassment in the workplace. The “Ending the Monopoly of Power over Workplace Harassment through Education and Reporting Act” would prohibit employers from requiring that an employee sign a non-disclosure or non-disparagement agreement concerning workplace harassment as a condition of their employment.

The “Ending Forced Arbitration of Sexual Harassment Act” would render arbitration agreements signed by an employee unenforceable.  This Act could be revolutionary since, if passed, it would likely invalidate most arbitration agreements signed between employees and employers. The “Sunlight in Workplace Harassment Act” further seeks to require companies to publicly report sexual harassment data.  The law concerning tax deductions in the area of workplace sexual harassment or abuse has changed as well. In cases of workplace sexual harassment or abuse, where any payments (such as settlement, payouts, or attorney’s fees) are subject to a non-disclosure agreement, those payments are now deemed non-tax-deductible.

In addition to various revisions or proposals in the law, many employers are also voluntarily addressing the issue of workplace harassment. Major companies such as Microsoft, Uber, and Google have already announced that they will no longer force their employees to private arbitration over sexual harassment claims. Many businesses are performing heightened background screening of job applicants for executive positions, revising their policies, adding workplace sexual harassment training, and revising the way they address the reporting and handling of such claims.

In fact, many employers are also revising their employment agreements. Employers are now defining that termination for “cause” specifically includes sexual harassment. Inserting sexual harassment into the for “cause” definition provides an additional incentive to avoid any perception of sexual misconduct and further allows the employer to avoid paying severance and other benefits to sexual harassers.

In summation, the #MeToo movement has greatly affected how employers respond to sexual harassment in the workplace. It is important for employers to consider updating their policies, providing sexual harassment training, and revising their employment and settlement agreements. Employers should take all steps necessary to prevent harassment in the workplace and respond properly if such an incident occurs or is alleged. Further, and importantly, employers should keep informed about any updates in this area of the law to ensure they are in full compliance.