Florida’s personal injury defense lawyers must have all gone to the same seminar and came back with a concerted effort to try to intimidate and harass Plaintiffs and their attorneys with the use and misuse of Rule 57.105 of the Florida Statutes. Section 57.105 is found in the Florida Statutes and serves to provide attorney’s fees and sanctions against lawyers and their clients. I am a lawyer who sues Florida’s hospitals for injured patients for over twenty years. I have never before seen the flurry of Rule 57.105 motions that I have witnessed in 2011. They have been misused and abused and meant for nothing more than a scare tactic to dissuade the zealous representation of the injured.

According Rule 57.105, it is appropriate to award sanctions in either of the following cases:

Frivolous Facts or Law

If a court finds that a lawyer or party “knowingly” brought a claim or defense that is unsupported by material facts or the then existing law then it can be argued that the claim or defense was frivolous. The court must specifically find by a preponderance of the evidence that the attorney knew that the claim was essentially baseless or that the law simply does not support the action.

Unreasonable Delay

In addition, a motion for 57.105 can be brought by any party at any time in a Civil proceeding in response to a pleading or discovery demand that is done primarily for the purpose of unreasonable delay. If the court finds that the opposing side’s actions are frivolous it can award damages that include attorney’s fees, and other sanctions as a result of the improper delay.

One exception to the rule is if the Court finds that the party making the argument subject to the motion for sanctions had done so with a “good faith” in an effort to extend or modify the then-existing state of the law or is trying to reverse existing law to establish new law. In order to try to protect parties, there is a 21 day “safe harbor” period where parties are notified of the intention to challenge a particular paper, pleading, claim or defense. This gives the accused an opportunity to reconsider his argument and withdraw the offensive pleading without the risk of having to pay sanctions and attorney’s fees.

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Our Broward County personal injury law firm believes that laws are meant to be followed but have to be challenged when they prevent justice from being served. For example, same-sex marriage is illegal in Florida. It deprives many partners of the loss of support and services when significant others are injured or killed due to the carelessness of a Florida business owner, physician or hospital.

The Florida law that prohibits same-sex marriage is an example of a Florida law that should be challenged by plaintiff’s lawyers in every applicable case. I believe that lawsuits should be filed on behalf of same-sex partners to force courts to address this issue as both unconstitutional and as a deprivation of due process and equal protection. As a Florida injury lawyer I encourage all lawyers to bend unjust laws until they break; challenging our legislature to provide equal justice for every single member of our society, rather than just protection for the few.