As a Miami personal injury lawyer, an issue I often see is that regarding evidence of a prior settlement. Generally, bringing out prior litigation history or a settlement simply to prove a plaintiff’s litigiousness is a character attack and not admissible. This ruling goes back to the landmark case of Zabner v. Howard Johnson’s Inc. of Florida, 227 So.2d 543, 546 (Fla. 4th DCA 1969). In Zabner, a plaintiff sued for personal injuries sustained when her gum was pierced by a walnut shell concealed in ice cream. The defense sought to impeach her by interrogating her on the fifteen prior lawsuits she had brought, some for personal injuries unrelated to the present claim and some for commercial matters. The 4th DCA determined that bringing out prior litigation history simply to prove a plaintiff’s litigiousness was a character attack and had no other purpose than to prejudice the jury.
An opposite holding was rendered in the recent case of Jackson v. Albright 120 So. 3rd 37, (Fla. 4th DCA 2013). In the Jackson case the Plaintiff testified that she did not continue with medical treatment following a car accident because she could not afford it. During Cross Examination the Defendant was permitted to ask the Plaintiff about a $420,000 settlement she had received a year earlier. The reasoning for allowing the evidence of a prior settlement was twofold. First and foremost, the Plaintiff opened the door by claiming poverty, and secondly, the prior settlement was not a personal injury case, but was a recovery of an entirely different type of lawsuit. Thus, the jury was not given the impression that the Plaintiff was obtaining a double recovery for her injury.
Mark Kaire has been practicing law in Miami for nearly 30 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for many years.