25 December

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Proposals for Settlement and Dismissals WITHOUT PREJUDICE

I have talked about proposals for settlement in a number of prior postings. (See here, here, and here for a few of these postings.). Proposals for settlement are a vehicle to create an argument for attorney’s fees under Florida Rule of Civil Procedure 1.442 and Florida Statute s. 768.79. A party receiving a proposal for settlement has 30 days to accept the proposal. If they do not, it triggers an argument to recover attorney’s fees from the date of the proposal for settlement on forward based on the amount of the recovered judgment. However, Florida cases have held that even if...

19 December

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Just because You Recovered an Affirmative Judgment does NOT Mean you Are the Prevailing Party for Purposes of Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

The prevailing party in a litigation for purposes of being awarded attorney's fees is NOT determined by how the money flows at the conclusion of the litigation. In other words, just because you recovered an affirmative judgment does NOT mean you are the prevailing party for purposes of being entitled to attorney's fees. See Skylink Jets, Inc. v. Klukan, 45 Fla.L.Weekly D2829a (Fla. 4th DCA 2020). To be the prevailing party for purposes of being entitled to attorney's fees, a party must have prevailed on the significant issues in the litigation. Id. And a trial court has broad discretion to...

13 December

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PLEAD SUFFICIENT ALLEGATIONS SUPPORTING PERSONAL JURISDICTION

Posted by David Adelstein

in Trial Perspectives

Remember when drafting a complaint, jurisdictional allegations are important. This is especially true if you are suing a defendant located outside of Florida. Jurisdictional allegations should be plead with detail supporting the factual basis for personal jurisdiction. There should be a consideration that a nonresident defendant may challenge personal jurisdiction and the very FIRST STEP in a court’s analysis in determining personal jurisdiction “is to determine whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute, section 48.193, Florida Statutes.” Williamson v. Prime Sports Marketing, LLC, 45 Fla.L.Weekly D268a (Fla. 3d DCA 2020). ...

05 December

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Pleading the 5th Amendment Right Against Self Incrimination in a Civil Dispute

Posted by David Adelstein

in Trial Perspectives

If you watch TV, you have seen legal shows where the witness on the stand refuses to testify under his/her Fifth Amendment’s right against self incrimination. Most of these TV shows are in the criminal context. However, the Fifth Amendment right against self-incrimination also applies in civil disputes: The Fifth Amendment provides no person “shall be compelled in any criminal case to be a witness against himself.” Amend. V, U.S. Const. The Fourteenth Amendment incorporates the Fifth Amendment so that the privilege against self-incrimination is protected from both federal and state action. See, e.g., Malloy v. Hogan, 378 U.S. 1, 8 (1964). The privilege...

29 November

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Owner can Testify as to the Value of His Property

Posted by David Adelstein

in Trial Perspectives

There are disputes that concern the valuation of an owner’s real property. Oftentimes, an appraiser or even a real estate broker is utilized for this purpose. But, this doesn’t have to be the case. An owner of the property can render opinions as to the valuation of his property despite not being an appraiser or real estate broker. An owner's testimony about the valuation of the property based on his familiarity and use (or intended use) of the property, along with the characteristics of the property, add an aura of authenticity. This is an important consideration when the valuation of...

22 November

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Piercing the Corporate Veil is NO Easy Feat

Posted by David Adelstein

in Trial Perspectives

Piercing a corporate veil to go after principals in their personal capacity is no easy feat. And it should not be viewed as an easy feat. While there are times trying to pierce the corporate veil is warranted, a party still MUST PROVE the requirements to pierce the protections of a corporate structure to go after the principals in charge of the corporate entity. Otherwise, doing business under a corporate structure would be severely emasculated. To pierce the corporate veil, a party must prove the following elements: “(i) [the person] dominated and controlled [the corporate entity] to such an extent that the...

15 November

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3-Step Process to Determine Production of Document under Trade Secret Privilege

Posted by David Adelstein

in Discovery, Trial Perspectives

During the discovery phase of litigation, a party will serve a request for documents on the opposing party. The request for documents will include numerous categories of documents. The responding party will then identify whether it will produce the documents or whether it will not due to a privilege or another legal objection. A hearing will then need to be conducted to determine the merits of the privilege or objection. One such privilege a party may raise is that the requested documents fall within the trade secret privilege. Such documents would be itemized on a privilege log and would identify trade...

01 November

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Loss of Future Earning Capacity Damages Must be Proven with Reasonable Degree of Certainty

Posted by David Adelstein

in Trial Perspectives

Loss of future earning capacity can be a difficult damage to recover because of what is seen as the inherent speculativeness of this damages category. Economic damages need to be proven with a reasonable degree of certainty and this can become challenging when dealing loss of future earning capacity damages, especially if the person has no earning capacity or no earning capacity in the area they are claiming they lost future earnings. Importantly, how do you establish with a reasonable degree of certainty the diminished earning capacity and, then, what that figure should be? This difficulty be seen in a recent...

25 October

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Declaration Cannot Take Away Common Elements in a Condominium

Posted by David Adelstein

in Trial Perspectives

The recent case of IconBrickell Condominium No. Three Association, Inc. v. New Media Consulting, LLC, 45 Fla. L. Weekly D2272a (Fla. 3d DCA 2020) is an interesting case discussing the common elements of a condominium where the trial court, affirmed by the appellate court, found that the Declaration governing a condominium violates Florida’s Condominium Act (Florida Statutes Chapter 718) because it “impermissibly divested residential unit owners of their undivided share in the common elements of the condominium.” Because the Declaration took away common elements from residential unit owners, it was determined that doing so was contrary to the law. The...

18 October

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Dealing with a Choice of Law Issue?

Posted by David Adelstein

in Trial Perspectives

Do you have a “choice of law” issue? In other words, does your contract require you to apply Delaware law (or the law of another state) but you will be filing your lawsuit in Florida? In this case, how do you know when to apply the law of another state versus Florida law? The answer depends on whether dealing with a substantive versus procedural issue: When dealing with choice of law matters, Florida adheres to a distinction between substantive and procedural matters. Siegel v. Novak, 920 So. 2d 89, 93 (Fla. 4th DCA 2006); Aerovias Nacionales De Colombia, S.A. v. Tellez, 596 So....