07 April

Sticky

Designating a Representative(s) to Serve as the Corporate Representative for Deposition

in Standard of Review, Trial Perspectives

Corporate representative depositions play an important role in the discovery of any dispute involving a corporate party. A corporate representative deposition requires the corporate representative to speak on behalf of the company – they are not speaking based on their personal knowledge, but as to the company’s position regarding designated topics. In fact, the designated corporate representative does not have to have the most knowledge about a particular topic to be the representative. See Fla.R.Civ.P. 1.310(b)(6). See also Sybac Solar, GMBH v. 6th Street Solar Energy park of Gainesville, LLC, 42 Fla. L. Weekly D771a (Fla. 2d DCA 2017) (“The...

31 March

0 Comments

Sticky

Punitive Damages for Business Torts

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Punitive damages can be warranted in business torts, although you are dealing with a much tougher threshold. Typically, the misconduct warranting the punitive damages needs to be intentional, i.e., the defendant had knowledge of the wrongfulness of the conduct and its high probability of damage and engaged in the misconduct anyway. See Fla. Stat. 768.72. This is because “‘the purpose of punitive damages is not to further compensate the plaintiff, but to punish the defendant for the wrongful conduct and to deter similar misconduct by it and other actors in the future.'” See Bistline v. Rogers, 42 Fla. L. Weekly...

25 March

0 Comments

Sticky

Significant Relationship between Claim and Agreement to Arbitrate

Posted by David Adelstein

in Trial Perspectives

Just because you have an agreement to arbitrate does not necessarily mean that every conceivable claim, including those unrelated to the agreement, are subject to arbitration. For instance, if there are separate agreements—one with an arbitration clause and another without—does not mean that a claim related to the agreement without an arbitration clause will be subject to arbitration per the separate agreement. There needs to be a “significant relationship” between the agreement containing the arbitration provision and the claim, as best explained as follows: "[T]he mere coincidence that the parties in dispute have a contractual relationship will ordinarily not be enough...

23 March

0 Comments

Sticky

Ebook: Innovative Attorney’s Fee Arrangements – Providing Value To YOUR Business Objectives

Posted by David Adelstein

in Trial Perspectives

Are you interested in learning more about innovative attorney's fee arrangements that provide value to your business and are outside of the boring, traditional hourly billing model. If so, check out my ebook on Innovative Attorney's Fee Arrangements: Providing Value To YOUR Business Objectives. You can also check out this ebook for Nook. Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1....

19 March

0 Comments

Sticky

Enforcing Non-Compete Agreement with Injunctive Relief

Posted by David Adelstein

in Uncategorized

There are numerous employers that want employees to sign a non-compete, non-disclosure, and non-solicitation agreement (collectively, the “non-compete agreement”). For good reason, they don’t want to train employees to learn the business’ trade secrets and business practices (e.g., marking strategies, pricing, techniques, customer lists, etc.) only to then compete with the employer and solicit its clients. The non-compete agreement will allow the employer to move for injunctive relief if a former employee violates the agreement to maintain the status quo and prevent the irreparable harm to the employer. An example is as follows. In Allied Universal Corp. v. Given, 42 Fla....

13 March

0 Comments

Sticky

Strict Construction of Condominium and Homeowner Association’s Declarations

Posted by David Adelstein

in Trial Perspectives

Do you live in a condominium or in a homeowner’s association? If so, then you know you are governed by a Declaration of Condominium (in the case of condominium unit ownership) or a Declaration of Covenants (in the case of home ownership). Please review these in addition to any amendments that may modify any of the paragraphs or covenants. These are recorded in the official, public records where the condominium or homes are located. So, you can obtain these documents online with ease. Declarations are covenants running with the land operating as a contract between the governing association and owners. See Woodside...

06 March

0 Comments

Sticky

Insurance Coverage Disputes where the Focus is the Policy Language

Posted by David Adelstein

in Standard of Review

Insurance coverage disputes are fairly common between an insured and his/her/its insurer. These are important disputes to an insured, particularly when they have been damaged and their insurer refuses to defend them from a third-party claim or otherwise denies coverage. An insured never wants to be in this position—understandably so. On the other hand, an insurance policy is not designed to cover every single risk under the sun as there are exclusions identified in policies for risks or perils that are not covered. This ultimately means an insured needs to have an appreciation of those risks or perils not covered...

26 February

0 Comments

Sticky

Don’t Neglect Mediation!

Posted by David Adelstein

in Trial Perspectives

I believe in the process of mediation for all disputes, particularly complicated factual business disputes. I use the word "process" because that is what mediation really is – a series of actions to achieve a particular end. Mediation can be a tiring process. A frustrating process. An informative process. A continuing process. A result-oriented process. In certain instances, a futile process. Oftentimes, mediation is a mixture of all of the above. Mediation allows parties to make a business decision based on their perception of risk -- the risk of losing or the risk of damages award (greater or lesser than...

24 February

0 Comments

Sticky

Stay Money Judgment Pending Appeal

Posted by David Adelstein

in Appeal

A money judgment is entered against you, but you are going to appeal. Can the collection of the money judgment be stayed pending appellate review? Yes. Florida Rule of Appellate Procedure 9.310 provides in material portion: (a) Application. Except as provided by general law and in subdivision (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief. A stay pending review may be conditioned on the posting of a good and sufficient bond,...

18 February

0 Comments

Sticky

Innovative or Alternative Fees Can be a Win-Win!

Posted by David Adelstein

in Uncategorized

What is the traditional model of lawyering? Simply put, it is hourly billing. There is nothing wrong with this model; however, there are other alternative or innovative attorney's fee models out there that factor in performance, results, and efficiency. These are models that incentivize performance which is always in a client's best interest. Stepping out of a comfort zone is tough considering we are all creatures of habit. But, there are instances where trying something innovative or alternative is a win-win for you from a budgetary standpoint and, importantly, a results standpoint. If you are interested in learning more about...

Author: David Adelstein