Often, claims are denied simply for a lack of medical documentation.  It is very important for a disability claimant to furnish a detailed and accurate history of medical treatment for the injury or disability that prevents them from working.  If the disability examiner is not made aware of those records, they will have nothing upon which to base a favorable decision and you will be denied disability benefits.  Sometimes it is the lack of documentation of the claimant’s disability within the medical records which causes the denial of benefits.  For instance, perhaps the treating physician did not include any statements regarding the patient’s current level of functioning and the functional limitations that would prevent him or her from engaging in work activities.

Of course, if the claimant does not follow through with medical treatment or does not seek the proper treatment for her disabling condition she will almost assuredly be denied disability benefits.  Even if the claimant has a condition for which there are few treatment options, it is extremely important to follow through with all available options.  From Social Security’s point of view, a history of medical evidence from the date of onset through the present is necessary for you to prevail on your claim for Social Security Disability benefits.

An attorney experienced in Social Security Disability claims can help make sure that all of the necessary facts are presented in the initial application, the reconsideration stage and at the administrative hearing level.  If you are about to apply for Social Security Disability benefits or have already been denied, you should consult with an attorney who understands the details of the system and what is required to prevail.  The law firm of Lesser, Lesser, Landy & Smith, PLLC represents disabled persons who are seeking Social Security Disability or Supplemental Security Income benefits.  Please contact our office for further assistance.

There are two major exceptions to this general rule.  “Willfully” selling or furnishing alcoholic beverages to someone under the legal drinking age creates liability for injury or damage caused by or resulting from the intoxication of the minor.  The same holds true for “knowingly” serving or furnishing someone who is “habitually addicted” to alcoholic beverages.  Section 768.125, Florida Statutes.  Regardless, a commercial vendor is not generally liable if alcohol is sold to an adult in a closed container with the understanding that it will not be consumed on the premises.

Significantly, Florida law does not provide a cause of action for simply serving an adult too much alcohol.  Section 768.125 provides protection unless the person served is a minor or is known to be “habitually addicted” to alcohol.  Obviously, a responsible social host or business should make every reasonable effort to watch a guest’s level of alcohol consumption — regardless of 768.125.

It is important to know your rights.  If you or someone you know has been injured due to a drunk driver, the experienced attorneys at Lesser, Lesser, Landy & Smith are here to help.  We have handled many serious drunk driving wrecks. Contact us for a free consultation.

Many residential lease agreements provide for the payment of a security deposit to be held by the landlord in the event the tenant causes damage to the property.  In a residential landlord/tenant relationship, the tenant is supposed to leave the premises in broom swept condition with no damage to the premises; normal wear and tear excepted.  Sometimes though, at the end of the lease term, the landlord and tenant will not see eye to eye as to damage to the property and whether or not the tenant left the premises in broom swept condition.

Many times an initial walk thru will be conducted and existing damage to the landlord’s property will be noted either by way of a checklist or by way of written description.  At the end of the lease term, another walk thru may be conducted and existing damage will again be noted on a checklist or by way of written description of the damage.  Whether you are the landlord or the tenant, one thing that could help in the event of a dispute as to whether or not the tenant caused the damage, or whether the damage was existing at the beginning of the lease, is for the parties to the lease agreement to photograph such things as the property, appliances, walls, doors and fixtures.   In the event of a dispute at the end of the lease, photographs and/or video will oftentimes be the deciding factor as to whether the damage was caused by the tenant or was preexisting prior to the commencement of the lease.  An important factor to consider, though, is that with the ability of having a date and time stamped onto a photograph, or inserted into a video, the parties should make certain that the date and time are set correctly.  Dates and times on a photograph, or in a video, are often just as important as the photograph or video itself.

If you are a former landlord or former tenant and think you may need to pursue litigation to determine your rights to a security deposit, please seek the assistance of the lawyers from Lesser, Lesser, Landy & Smith, PLLC.

The study also found that children were at greater risk than adults for falls from a golf cart. Despite these statistics, with the rise in use of golf carts we are finding that children are more often being permitted to utilize golf carts by their parents or other adult golf cart owners. Under Florida law, a golf cart is considered a “dangerous instrumentality.” As such, the owner of a golf cart can be held responsible for the negligent use of the golf cart by any person whom they entrust to use that golf cart, including a child. This is true both on and off the golf course.

Injuries from golf cart accidents can be very serious and, in some cases, fatal. The attorneys at Lesser, Lesser, Landy & Smith have decades of experience helping injured victims of golf cart accidents. If you, a family member, or a loved one were involved in a golf cart accident, call us for a free consultation.

When deciding whether or not to file a commercial litigation lawsuit, it is necessary to conduct a thorough analysis of the facts, damages incurred, likelihood of success, and the cost and time necessary to achieve a desirable end result.

Facts and other elements vary drastically from case to case, which is why it is recommended to consult an experienced attorney. The lawyers at Lesser, Lesser, Landy & Smith have many years of experience in handling commercial litigation type cases.  During an initial consultation, we help analyze cases by examining the strengths and weaknesses and determining whether it is wise to pursue litigation. If appropriate, we stand ready to represent your interests to the best of our abilities.

If you think you may need to pursue litigation, please feel free to contact us for an initial consultation.

• On average in the United States in 2009, someone died in a fire every 175 minutes, and someone was injured every 31 minutes.
• Deaths from fires and burns are the third leading cause of fatal home injury.
• Fatal fire and burn injuries cost $3 billion, representing 2% of the total costs of all fatal injuries.
• Hospitalized fire and burn injuries total $1 billion, or 1% of the total cost of all hospitalized injuries.
• Non-hospitalized fire and burn injuries cost $3 billion, or 2% of the total cost of all non-hospitalized injuries.

What can you do to protect your family from fire and burn injuries?  The data compiled by the CDC is compelling:

• Approximately 4 out of 10 home fire deaths occur in homes without smoke alarms.
• Smoking is the leading cause of fire-related deaths.
• Cooking is the primary cause of residential fires.
• Alcohol use contributes to an estimated 40% of residential fire deaths.
• Most victims of fires die from smoke or toxic gases and not from burns.

The answers are obvious, aren’t they?  If you do not have smoke detectors, get them – TODAY.  If you have smoke detectors, when did you last change the batteries?  If you do not know the answer, change them – TODAY.  Quit smoking, but if you insist on smoking, never smoke in bed or while sleepy.  Never leave the kitchen unattended while cooking – even “for a minute.”  The statistics show that alcohol contributes to nearly half of all residential fire deaths, so know your limits and do not make a bad situation worse.  If you find yourself in a building that is on fire, remember to crawl low in the smoke to the nearest exit; the freshest air is near the floor.

Burn injuries are notoriously painful and can cause systemic injury throughout the body.  Death resulting from fire and burn injuries can truly be described as horrific.  If you or your family are confronted with burn injury or wrongful death caused by the negligence of another, contact Lesser, Lesser, Landy & Smith for a free consultation.  We have decades of experience.

Texting has become one of the primary sources of communication, and its usage continues to increase. A study performed by the Pew Research Institute revealed that 72% of American adults text, and over 50% of teenagers send 50 or more text messages per day!¹ Texting may provide a good alternate means of communication, but we all owe it to ourselves and those around us to do so responsibly.

According to the Automobile Association of America (AAA) Foundation for Traffic Safety, 88% of drivers believe texting and emailing while behind the wheel creates a serious threat to their safety (makes you wonder what the other 12% are thinking), while 25% of drivers admitted to texting or sending emails while driving.²

“Distracted driving” has become an increasing problem as the mechanisms for becoming distracted have also increased. There are three primary types of distraction according to the National Highway Traffic Safety Administration (NHTSA):

1. Visual: taking your eyes off the road;

2. Manual: taking your hands off the wheel; and

3. Cognitive: taking your mind off what you are doing.

Distracted driving includes not only texting, but also eating, talking to passengers, grooming, and changing the radio station. While all such distractions can endanger roadway safety, texting is the most dangerous because it involves all three types of distraction. According to the NHTSA, in 2009, 5,474 people were killed, and an additional 448,000 were injured, in motor vehicle crashes involving distracted driving. Drivers who use hand-held devices are also four times as likely to get into an accident that causes them injury.³

It’s clear that texting while driving poses a problem, but the question remains – what do we do about it? In January, 2011 the Department of Transportation (DOT) issued a federal texting ban for truckers, providing for fines of up to $2,750.00 for truck drivers who text while driving a commercial vehicle. Earlier, in 2009, President Obama issued an Executive Order banning federal employees from texting while driving federally-owned vehicles. 33 states, plus the District of Columbia and Guam, have banned texting while driving. Despite several bills presented in the Florida Legislature to prohibit texting while driving, no such bill passed. Such bills ranged from implementing educational programs to levying fines.

Despite the lack of legal initiative taken by our Legislature, we must all take the logical, common-sense initiative to make our roads safer by practicing what we all seem to preach. If the vast majority of us agree that texting while driving creates a serious threat to our safety, and the statistics surrounding distracted driving supports this belief, we all must vow to not to text while driving to create safer roads for us all. This may seem overly simplistic, but keep that commitment in mind the next time you are driving and have the urge to pick up your phone to send a text message. The lawyers and staff at Lesser, Lesser, Landy & Smith are confident that the intended recipient of your text would prefer to wait until you stop driving to receive it, rather than run the risk of never having the opportunity to receive it.

The lawyers and staff at Lesser, Lesser, Landy & Smith are dedicated to not only helping those who have been injured as a result of someone else’s negligence, but also getting the message out about the dangers of texting while driving. Much like drinking and driving, texting and driving don’t mix.

1. Pew Internet. 2010. “Cell phones and American Adults.” http://www.pewinternet.org/Press-Releases/2010/Cell-phones-and-American-adults.aspx.September2

2. AAA Foundation for Traffic Safety. 2010 Traffic Safety Culture Index. http://www.aaafoundation.org/pdy/2010TSCIndexFinalReport.pdf

3. U.S. Department of Transportation, 2009. “Statistics and Facts About Distracted Driving.” http://www.distraction.gov/stats-and-facts/index.html

Christopher Ayotte found this out in Pensacola, Florida last year. Mr. Ayotte and his girlfriend had gone out for a few drinks one evening. His girlfriend had asked him to hold some of her prescribed hydrocodone. An officer testified that he had observed Mr. Ayotte showing some pills to another bar patron and possibly exchanging them. The officer also testified that Mr. Ayotte confessed that he was selling the pills to pay for drinks. Mr. Ayotte denied making any such statement(s) and testified that the pills only left his pocket accidentally, when they fell out as he reached for cigarettes in the same pocket.

Mr. Ayotte’s case eventually went to trial, but even though it was undisputed that the pills had been obtained with a valid prescription by his girlfriend (who was with him), the jury was never instructed that there is a statutory exception to Florida Statutes section 893.135(1)(c)1, the drug trafficking statute. Mr. Ayotte was ultimately convicted of trafficking in hydrocodone.

Fortunately for Mr. Ayotte, the First District Court of Appeals held that the failure to instruct the jury as to the statutory exceptions to the prohibition on possession of hydrocodone when the substance is obtained by a prescription was fundamental error where the state failed to refute his defense that he was holding the pills for his girlfriend and argued that possession alone was sufficient to convict.

In cases involving the trafficking of prescription medications, it is extremely important that your lawyer specifically requests that the jury be instructed on the statutory exceptions to the possession of these substances. While we will never know what the jury might have done had they been given the instruction, Mr. Ayotte learned what happened when they did not. Don’t let that happen to you!

John M. Howe is Of Counsel at the Law Offices of Lesser, Lesser, Landy and Smith in West Palm Beach, Florida, handling all of the Firm’s criminal law cases. Mr. Howe is the President of the Palm Beach County Bar Association and a Director-At-Large of the Florida Association of Criminal Defense Lawyers. To learn more about Mr. Howe and LLL&S, visit them on the web at www.lesserlawfirm.com.

In Mr. Coleman’s case, the police officer failed to tell him that he had a right to have a lawyer present during questioning, and Mr. Coleman proceeded to answer questions without a lawyer present and made harmful statements.  The trial judge found that the Miranda warning read to Mr. Coleman was defective under the case of Powell v. State of Florida, since it did not advise him that he had the right to speak with an attorney during police questioning. However, the U.S. Supreme Court reversed Powell in 2010.

The State then challenged the order suppressing statements made by Coleman. The Florida 5th District Court of Appeals reversed the suppression Mr. Coleman’s statement and held that a Miranda warning is sufficient so long as it reasonably conveys the required information to the suspect. The warning form advised him that he had the right to speak with an attorney before talking with law enforcement; that if he could not afford an attorney, one would be appointed before questioning; and that he could, at any time, exercise these rights and decline to answer any questions. These warnings reasonably conveyed to him that he had the right to have an attorney present at all times.

Had Mr. Coleman made a smarter decision and asked to speak to an attorney, his attorney would likely have pointed out how his statements might be harmful and would have advised him to remain silent.  Furthermore, if he had requested an attorney and the officer continued the questioning without the attorney there, his statements would certainly have been suppressed. Mr. Coleman learned the hard way that you cannot always rely on “the system” to strictly enforce the rules of the game.  Always ask to speak to a lawyer!!

John M. Howe is Of Counsel at the Law Offices of Lesser, Lesser, Landy & Smith, PLLC in West Palm Beach, Florida.  Mr. Howe is the President of the Palm Beach County Bar Association and a Director-At-Large of the Florida Association of Criminal Defense Lawyers.  To learn more about Mr. Howe and LLL&S, visit them on the web at www.lesserlawfirm.com.

What are the primary causes of rollover crashes and how can injury be avoided? Numerous studies have been prepared on these issues. The Fatality Analysis Reporting System (FARS), an annual census of all fatal motor vehicle crashes occurring in the United States as well as the Federal Highway Administration data on vehicle registrations and Vehicle Miles Travel shed interesting data. The National Center for Statistics Analysis (NCSA) published a comprehensive analysis of the statistical data obtained by these entities. The most important conclusions are as follows:

1. Nearly 3/4 of occupants killed in rollover crashes were not using restraints and slightly less than two-thirds of them were completely ejected from the vehicle.

2. Most fatal rollover crashes are single vehicle crashes.

3. Positive elevated blood alcohol levels are associated with fatal rollovers, and particularly fatal single rollovers. Involved drivers with positive blood alcohol levels are more likely to have blood alcohol at or above the intoxication level.

4. Rollover crashes are more likely to result in fatalities than other types of crashes.

5. Rollover crashes constitute 1/5 of all fatal crashes.

6. The number of fatal passenger car rollover crashes has been decreasing in recent years.

7. The number of fatal light truck rollover crashes is increasing, particularly among SUVs and vans.

8. The number of fatal SUV rollovers has more than doubled since 1991, growing faster than any other class of light trucks.

9. Speed was an important factor in fatal rollovers, with most crashes occurring on the roads where the speed limits were 55 miles an hour or greater.

Obviously, the above data demonstrates a few irrefutable statistics. Driving under the influence and speeding increased the likelihood of rollover accidents. Moreover, failure to use a safety restraint system greatly increases the risk of the injury and death. Equally irrefutable, however, is the fact that SUVs are at a greater risk of rolling over in an accident. Unfortunately, often the risk is unnecessary and due solely to defective designs in the vehicle by the manufacturer. Before purchasing a vehicle, you may obtain its rollover rating from NHTSA at http://www.safercar.gov/Vehicle+Shoppers/5-Star+Safety+Ratings.

SUVs can be a fun, as well as an efficient, source of transportation. In order to minimize the associated risks, however, be smart, educated, and be prepared.