Things to Think About When Drafting Your Complaint

     There are certain things which you should think about before you begin to draft a complaint. If you consider these things in advance it will substantially increase the  chances of your complaint surviving a motion to dismiss.

  1. Understand Your Client.

     This may sound elementary. However, it is surprising how many lawyers do not understand who they are representing. Is your client a corporation, a limited liability corporation, or a partnership? Is your client from Florida, California or from China? All of these things factor into the equation of where your lawsuit will be filed.

      Who is it from the client that has to authorize the filing of a lawsuit. Is your client a public company? Is board approval required? Do the company’s bylaws have special provisions governing under what circumstances litigation may be commenced? These are all things  which the careful lawyer should think about in advance.

  1. Understand the Defendant.

      This is equally important, if not more important, than understanding your client. Who the defendant is will have a substantial impact on what type of lawsuit you file and where you file it. For example, is there diversity of citizenship? Is the plaintiff from one state and the defendant from another? Is the claim for over $75,000 in damages  ? If so, you may want to consider filing the Complaint in federal court. If you file in state court, and the claim is over $75,000, you and your client need to be aware of the possibility that the case may be “removed” from state court to federal court. Removal has serious consequences for the progress of the case and ultimate cost.

3. Personal Jurisdiction

     If you do not have personal jurisdiction, it is likely that the complaint will be dismissed. In order to have personal jurisdiction over the defendant, you must be able to show, among other things,  that the defendant  resides in or was doing business in the state in which you choose to sue. If the defendant does not reside in the state in which you choose to sue, consider how you may go about obtaining jurisdiction under the Florida long arm statute. See F. S. §48.193. The specific bases of personal jurisdiction under §48.193 are beyond the scope of this article; however, these are things to be aware of when drafting the complaint. Remember that you are required to plead the basis for long arm jurisdiction in the Complaint.

4. Your Complaint Should Tell a Story

      Litigators are, after all, storytellers at heart. What we do is explain our client’s saga in writing and, at appropriate times in front of the judge and jury. There is no reason to wait in order to get the story down pat. You should understand the story before you file the complaint. Try writing it down on a piece of paper, or dictate it before you begin. Make sure there is a beginning, a middle and an end and explain why, and how, your client has been harmed. You would be surprised how many complaints fail to follow this basic formula and are dismissed for that reason.

 5. Consider the Causes of Action

      Once  you understand your client’s story, you should give serious thought to causes of action. Now that you have told the court why  your client has been wronged, you need to explain why the law provides a remedy. There is an excellent book called “Florida Causes of Action” which you should review before you draft causes of action for your complaint. A simple review of the index will also help jog your mind as to what the defendant can be sued for. The book also contains the specific elements necessary to be pleaded in each cause of action. You would be surprised how many plaintiff’s lawyers fail to consult this book and rely, instead, on old forms or from memory. Bad idea. Why be lazy? A simple review of “Florida Causes of Action” significantly decreases the likelihood that your complaint will be dismissed.

 6.   Pleading with Particularity

     Many complaints, particularly those involving fraud, require that the circumstances constituting the fraud be pleaded with “specificity.” You should  understand what “specificity” actually means. Most often it means that, if the complaint was based upon false or fraudulent representations made by the defendant, that you identify who made representations, when the representations were made, how your client relied on them, and the dates of the representations, including a specific description of what was said. This will also assist in avoiding an early dismissal of your complaint.

7. Attach Relevant Contracts to your Complaint

      It is important to attach the contracts, if any, upon which your client is relying, to the Complaint. It is not necessary to attach every document and email to your complaint as an exhibit. Instead, the Florida Rules of Civil Procedure provide that you should attach copies of the contract upon which your claim is founded. This will assist in giving the defendant notice of what your claim is based upon. It is hard to understand why so many plaintiff’s lawyers fail to do this.

      You should also give consideration as to whether the contract which is attached to your complaint is actually consistent with the facts alleged in the complaint. If there is a contradiction, you will get a “Harry Pepper” motion. This motion is designed to dismiss your complaint based upon the fact that your complaint conflicts with the exhibits. By careful drafting, you should be able to avoid this.

      The above are just a representative sample of the things that you should consider before filing a complaint. Thinking through the allegations of the complaint in advance, including potential causes of action, jurisdiction and damages, will assist you in obtaining a better outcome.



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The Importance of Hiring Local Counsel


     Imagine that you are  sitting in a courtroom in New York City. Everyone is dressed in suits and ties and the men are wearing black shiny shoes. You may be able to see your reflection in them. You are  waiting for the judge to arrive who will likely appear in a black robe. Everyone will likely stand up when the Judge walks in. It is all very formal.

      Suddenly, you turn around and into the courtroom walks a man wearing a ten gallon hat and cowboy boots. He is a lawyer. In fact, he is your lawyer. How do you feel about that?

      Court rooms can be similar to high schools. There is a dress code, albeit unspoken. There are certain norms to be observed. One unspoken rule is that a lawyer should not stand out as being different from the other lawyers. Your lawyer should be “one of the guys.”

      This is the reason that you hire local counsel  – so that you can avoid having your lawyer look like the guy in the ten gallon hat and cowboy boots in the New York City Court. You can keep the lawyer in the ten gallon hat and cowboy boots if you want. He (or she) is probably very good. In fact, the lawyer in the ten gallon hat and cowboy boots may be one of the best. Just don’t let him (or her) appear in court unescorted by local counsel. There are numerous things local counsel can do to help you (and your lawyer) blend in.

  1. Local counsel Will Most Likely Know the Judge.

     Believe it or not, It really is important for your lawyer to know the Judge, and for the judge to know your lawyer. This is why  local lawyers go to bar functions, judicial receptions and serve on committees. The knowing nod of the Judge when your local counsel walks into the court room is important. It means “I know you”. “You are part of our community. You are not the guy in the ten gallon hat who is here for only this one case. You will be here tomorrow. We will see each other again, so you have to behave yourself.”

  1. Local Counsel Knows the Local Rules.

     There are all sorts of rules. There are the federal rules governing federal courts. There are state rules governing state courts. And, believe it or not, there are local rules for each individual court. Certain judges even have their own rules. The likelihood is that your local counsel will know the local rules well; the guy in the ten gallon hat may not.


   3. Local Counsel Knows How the Court Papers Are Supposed to Look

      Believe it or not, court papers in each local state  or federal court look different depending upon the state you are in. In New York State, for example, lawyers affix blue covers to all of their pleadings which is called a “blue back”. Without the “blue back” the Clerk of the Court will not accept your papers for filing. Sound ridiculous? Of course it’s ridiculous. But it is the way they do things. And you have to know the way the do things.

      In California, the court papers are arranged in a certain style in which Counsel’s name appears on the upper left-hand corner of each court paper. Does this sound silly? Of course it is silly. However, if your court papers in California do not have your name in the upper left-hand corner you will look like the guy in the ten gallon. And you do not want to look like the guy in the ten gallon hat. 

   4. Local Counsel Has Connections

     Local counsel will be able to find you a qualified mediator when the time comes. He or she will know court reporters. Local counsel likely  will have an office with a conference room that you can use. Local counsel help you find a hotel. Local counsel should know all the good restaurants and take you and your client to dinner when you come in to town for a hearing or the trial.

     5.  Local Counsel Knows Local Lore.

      This may sound strange but there is law (or lore) that only  local counsel knows about. It is not written in the casebooks, cannot be found on Westlaw and is not reported anywhere.  Local counsel will know local stories by sitting in the Judge’s court room and watching the Judge. All day long judges make unreported rulings; rulings that no one knows about. Except your local counsel.  A good local counsel may be sitting in the courtroom, in front of your judge, listening, watching, taking notes, ready to report back on relevant developments that may affect your case. Local counsel will know that “Judge Smith doesn’t like discovery motions.” He or she will know that “Judge Jones doesn’t think very much of motions to dismiss.” These are things that are not written down anywhere. Local lawyers just know them. The guy in the ten gallon hat will not. 




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What Lawyers Can Learn from Vladimir Putin

     Vladimir Putin is a land grabbing dictator whose ultimate goal is apparently to take over a good portion of Eastern Europe. Nonetheless, his tactics, however malevolent,  merit study. There is a lot that lawyers  can learn from the dastardly dictator.

  1. Know your Enemy.

     Putin made a calculated gamble that his adversaries would not confront him when he decided to annex Crimea. Putin determined that the United States was spread too thin in Afghanistan and elsewhere to be able to successfully challenge him militarily.  Putin also correctly determined that the American people had no further appetite for war after exhausting themselves in Iraq and Afghanistan. This made it easy for Putin to simply step into Crimea without being confronted.

      In litigation and in business, it is also important to assess your adversary. Is your adversary spending a lot of money on litigation ? Does your opponent have the money necessary to fund opposition if your client decides to sue ? Is your client’s potential adversary war weary ? Does your adversary have a reputation in the community as  a lover or a fighter? These are all things to consider before you file suit. A calculated analysis of these factors may help put your client in a position to invade and conquer, just like Putin.

  1. Have a long-term game plan.

     Vladimir Putin has a long-term game plan. He wants to take over Eastern Europe and put it back under Soviet influence. He knows it will take time, and will be costly, but he is prepared to stick it out. He does not seem to care about being evicted from the G8 (now the G7). Similarly, in litigation, it is often necessary to assess your position one stage of the time. It is often difficult to see the end game. Instead, it is often useful to assess your position in terms of limited battles, occurring over  an extended period of time, with the ultimate objective to conquer your opponent. Having a game plan will assist you in that effort.

3. Enjoy small victories.

     Victories, however small, can dispirit your opponent. A small victory at a discovery hearing can, under certain circumstances, discourage your adversary. This may work particularly well  with an adversary who may not be in it for the “long haul”. Thus, enjoy your victories, however small, and count them regularly as a harbinger of things to come.

 4. Use Time Worn tactics.

     Many tactics in war, geopolitics and in litigation have been used for centuries. For example, you may recall that Putin  announced that he was taking back Crimea in order to “protect” the local Russian population. As Hillary Clinton adeptly pointed out, Adolf  Hitler said the same thing about protecting the German population before he invaded Austria. Surprisingly, there are apparently people who actually bought this argument both times. It worked once, why not use it again?

      The competent lawyer will look back at his repertoire for arguments that can be used over and over again successfully.

 5. Bury them in Paper.

     Putin has millions of troops that he can round up on a moment’s notice. He has 20,000 of them on the Ukrainian border right now. The folks in Ukraine, Crimea and the United States obviously know this. The mere threat of a mass invasion is often enough to convince the other party to raise the white flag. The appearance you create regarding your ability to wage war is often as important as your ability to actually do it.

6. Pound your chest.

     When you win, make sure the other side, and their counsel, know about it. It is okay to brag a little. Ask Muhammad Ali and see how it worked for him. A little bravado may go a long way in helping you win on a psychological level.

     While you may not want to use all of these tactics bear in mind that each of them may have a place in your arsenal. It has been working for Vladimir Putin and it could work for you.



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The Attorney-Client Privilege and the Perils of “Reply All”

     The attorney-client privilege, once sacrosanct, is under attack. The privilege is being attacked by clients and lawyers through inadvertence and carelessness. This Post will discuss common ways in which the attorney-client privilege can be waived and what you can do to prevent that from happening.

      The attorney-client privilege is generally defined as a private communication between an attorney and client, intended to be confidential, for the purpose of obtaining or receiving legal advice. Not every communication between attorney and client is privileged. For example, when the client forwards a document to his or her attorney for review, the underlying document is generally not considered privileged. Otherwise, all a client would have to do, in order to invoke the privilege, would be to transmit numerous documents to counsel. Courts have held that the underlying documents are not privileged in those circumstances.

     There are numerous ways, however,  in which individuals can waive the attorney-client privilege through inadvertence. Here is a sample of things to watch out for.

1. Unintentional Copying of Third Parties.

     The attorney-client privilege covers communications between the attorney and the client only. Accordingly, when a party is copied on an email, who is not either the client, somebody who  works for the client, the lawyer, or someone who works for the lawyer, it can raise questions as to whether the attorney-client privilege was waived. Accordingly, care should be taken in order to make certain that only the lawyer, the client, or their respective employees are included in email correspondence.

     When lawyers write to opposing in email correspondence they should be careful not to directly copy their own clients on that correspondence. The client may not realize that opposing counsel is copied on the service list of an email. Accordingly, there have been instances in which a client hits “reply all” and sends what would otherwise be attorney-client privileged correspondence to opposing counsel. This is bad for a host of reasons which should be obvious but, essentially, it gives the other side an opportunity to learn the private thoughts of the client or the lawyer.  Then it is often hard to put the cat back into the bag.

2. Why “Reply All” is Dangerous.

     As it turns out, in Microsoft Outlook, the most popular email program, the “Reply” key, and  the “ReplyAll” key, are right next to one another. Accordingly, care should be taken when either the lawyer, or the client, responds to an email to make certain that only the intended recipients receive the communication. If individuals outside of the email chain receive the communication, it could be determined by a court to have been a waiver of the attorney-client privilege.

     Unintentional disclosure can be determined to be a waiver by the Court. However, courts routinely analyze the facts and circumstances surrounding the transmission of the email to determine whether a waiver was intended. Making this determination can often be a time-consuming and expensive process that could eat up substantial resources in connection with ongoing litigation. Resources are certainly better spent in advancing the case rather than defending claims of a privilege waiver.

3. When You Receive the Privileged Communication

     Many clients jump for joy when their lawyer receives a privileged communication from the other side which was not intended for them. The client, however, is not required to follow the rules of the Bar unless the client also happens to be a lawyer. Lawyers, however, are obligated to return the communication immediately to the sender and destroy all copies unless there is some reasonable argument  which can be made that the information was sent to the lawyer intentionally. This can be hard to explain to the client but that is most often the only remedy available.

      There are certain kinds of confidentiality and other agreements which provide for “claw back” provisions. This type of contract provision provides that, in the event that  an attorney-client privileged communication is inadvertently disclosed, the disclosing party has the right to get it back. While these contracts may be helpful, in cases involving a voluminous document production, it is not ideal to disclose privileged information, send it to the other side, and then be forced to retrieve it.

      Like most things, the best approach to avoid inadvertent disclosure of privileged information is prevention. Be careful to make certain that you know who is reading your emails and who is sending them to you.




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So, you want to start a business ? Tips for Avoiding a Debacle

     Now that the economy is up and running again, it is time to talk about business.  This is the time for business people start to talk about starting new businesses and investing.  There are many options for creating entities which will provide protection to investors in connection with  new businesses. An entity that is often used by investors is something called the de facto partnership. This  occurs when two or more people get together to start a business but never really decide whether to form a legal entity. In fact,  what often happens is that the business formed by two or more people rolls merrily along until something goes wrong. That is when the lawyers are called and a request is made to figure out, after the fact,  what the parties intended and how the assets and liabilities of the business should be apportioned.

     Perhaps we can all agree that this is less than an ideal circumstance. Competent business people should decide in advance, together with their counsel and tax consultants, the best entity to form in order to provide the maximum legal and tax protection. The Florida Legislature, however,  has recognized that many people simply do not have this level of foresight. Instead, what often happens is that a business is begun with only a trade name or a DBA (“doing business as” name). In cases in which the partners decide to go their separate ways, there is often a disagreement among the partners as to how to divide assets and/or profits and  it often becomes the job of counsel, with the assistance of the Court, to figure out who gets what.

     In Florida,  a business that is carried on by individuals as co-owners for profit is generally considered to be a partnership. Things get sticky when it comes time to figure out what percentage of ownership interest each party has. After all, not all things in life are equal. For example, many businesses are started with the capital of one partner and the “sweat equity” of the other. How profits are split in this business can be difficult to determine, particularly at the outset.  If the business has a track record, Courts may look to how the parties have treated one another historically. If there is no track record, it becomes more of a “he said, she said” contest. Under these circumstances, Courts will listen to the oral testimony of the parties. That means summary judgment likely will not be granted before trial.

     Using litigation as a vehicle to determine the rights and liabilities of the parties under these circumstances can be time-consuming and expensive. Accountants may  have to be called to testify regarding the finances of the business.  A value will have to be placed upon the value of the business and the contributions of the sweat equity partner. This too will require expert testimony. The bad thing about expert testimony is that it costs money. Imagine that you will have to pay counsel to litigate the case and then pay another person – the expert – to review the facts and testify. What was an expensive proposition to begin with becomes even more expensive.

     So what is the solution?  Competent business people should give careful consideration to forming a corporation, limited liability company or a partnership with a written partnership agreement prepared in advance. This type of planning and forethought will often prevent problems later on. After all, if their was a clearly drafted written agreement defining the rights and liabilities of the parties what is there to argue about?

     Unfortunately, there are some people who simply do not agree with this philosophy and would prefer to simply wing it (you know who you are).The person who prepares a written agreement in advance is the same person who changes the oil in their car on a regular basis. The person who ignores this is the same person who never changes the oil in their car, allows the engine to seize up and causes their car to suffer major repairs.

     What type of business person are you ?





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Can you (or your client) be Facebook Friends with the Judge ?

      Social media has created all sorts of opportunities for members of the Bar, and their clients, to interact with the Judiciary. It used to be that you would only see the Judge in court, at a local restaurant, or at a bar function. Now, it seems, the opportunities for interacting with the Judge are virtually endless. Consider the fact that many members of the Judiciary have  a Facebook page, a LinkedIn profile and a twitter feed. Judges who are in the election cycle routinely create Facebook pages in order to garner financial support for their election or reelection. Is the fact that a lawyer or her client  are connected with the judge on Facebook sufficient to justify the Judge’s disqualification ?

     A Recent case from the Fifth District Court of Appeals has answered that question at least in part. In Chace  v. Loisel, the Fifth District Court of Appeals was called upon to review the Trial Court’s treatment of a Motion to disqualify the Judge for bias. Prior to the entry of a final judgment in a divorce case the Trial Judge reached out to the petitioner, ex parte, in the form of a Facebook friend request.  Upon advice of counsel, the petitioner did not respond. Thereafter, the Trial Court judge entered a final judgment of dissolution of marriage allegedly apportioning most of the marital debts to petitioner and providing the Respondent with a disproportionately excessive alimony award. Petitioner thereafter filed a Motion to Disqualify.  The Trial Court judge found the motion insufficient and denied it.

     On appeal the Fifth District Court of Appeals recognized that the standard for granting a Motion to Disqualify is that  the complained of conduct must be sufficient to create a well-founded fear in the minds of the party that he or she will not receive a fair trial. If so, it is incumbent upon the Trial Court Judge to disqualify herself.

     In order to determine whether a motion is “legally sufficient” the Court must resolve certain fact issues. The question is whether the facts, if accepted as true, would prompt a reasonably prudent person to fear that she could not get a fair and impartial trial before the judge. Mere subjective fear is insufficient to serve as a basis for disqualification.

     The Fifth District found that the judge’s ex parte communication with the party presented a legally sufficient claim for disqualification, particularly in case where a party’s failure to respond to the Facebook friend request could potentially offend the Court. The friend request, the Fifth District concluded, put the litigant between a rock and a hard place – either engage in improper ex parte communication with the judge presiding or do not accept the friend request. The Fifth District relied upon a case from the Fourth District entitled Domville v. State in which the Fourth District Court of Appeals determined that a Judge who was friends with various attorneys through social media could create a well-founded fear that a  party would not receive a fair and impartial trial.

     The Fifth District in Chace expressed serious reservations about the Court’s rationale in Domville. The Fifth District found that the word “friend” on Facebook is a term of art and recognized, as a matter of law, that the word “friend” on Facebook does not necessarily signify the existence of a close relationship. Other than the public nature of the Internet there is no difference between a Facebook friend and any other friend  the Judge might have. The Fifth District found that the logic of the Domville Court would require disqualification in cases involving a mere acquaintance of a judge. In small counties, where everyone knows one another, this requirement is both unworkable and unnecessary, the Court found. “Requiring disqualification in such cases does not reflect the true nature of a Facebook friend request and casts a large net in an effort to catch a minnow, ” the Court concluded. The Fifth District found that there was a difference between a Judge’s unreturned friend request and circumstance in which a judge is simply Facebook  friends with various lawyers. The Court found that if the Judge was  “friend” with a party in a pending case that would raise far more concerns than if a Judge was Facebook friendship with a lawyer. The Fifth District confirmed that  a trial judge, who sends a Facebook friend request to a litigant in a pending case, should be disqualified. While the Opinion does not discuss what would happen if the litigant accepted the friend request, it makes sense that this would provide the litigant’s adversary a reason for that party to seek disqualification of the Judge.

     The lessons to be learned here for lawyers, litigants and judges are simple. If you are a judge, do not send Facebook friend requests to litigants. However, lawyers can be Facebook friends with Judges and that is not enough to disqualify the Judge. However, litigants, members of the judiciary and members of the bar should exercise caution in connection with their social media relationships in order to avoid the appearance of impropriety.


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How to Get an Injunction

     People often come to my office and ask questions about how they can prevent someone from doing something, or how to compel someone to do something through litigation. This is not an easy question to answer. Most often, litigation is geared towards monetary compensation, not compelling a person to act in accordance with a specific requirement. However, there are many circumstances in which an injunction can be obtained in order to compel a person or corporation to do something, or to prevent a person or corporation from doing something.

     The most famous examples of a successful injunction is, perhaps, Brown versus Board of Education, in which the United States government obtained an injunction to force the integration of the public schools. Other contemporary examples would include preventing a person from stalking you (sometimes considered  a domestic violence injunction) or  forcing repairs on a construction project where there is a potential harm to public safety.

     The requirements for injunction are simple to understand but often difficult to meet.  There are four basic requirements.  A plaintiff must show a likelihood of success on the merits, irreparable injury, that the balance of the equities tip in their favor, and that the public interest will be served by the requested injunction. Each one of them is discussed below.

1. The Likelihood of Success on the Merits.

      This means that you must prove that it is likely that you will win the case. You do not have to prove that you will definitely win the case, just that it is likely that you will win the case. The problem with this requirement is that it often forces the plaintiff to put on evidence at an early stage of the case sometimes without the benefit of discovery. Doing this may, in fact, have the opposite impact of what was intended. In the process of seeking an injunction you may convince the judge that your case is not quite so strong. Accordingly, you could lose both the motion and the case in general.  The case can be lost when the judge expresses doubt at the injunction hearing about the strength of your position on the merits. When this happens, opposing counsel will likely remind you, and the Judge about this, as often as possible. Accordingly, counsel should carefully analyze whether your client is really likely to succeed on an injunction motion before seeking one. 

2,Irreparable injury.

     This is the requirement which often causes the most confusion. What type of injury is  irreparable? The most common definition of “irreparable injury”  is that, whatever the injury is, it cannot be compensated by monetary damages.

     Examples of this would be to force repairs to be made in the building the name of public safety in order to prevent injury or to prevent a stalker from harassing you. These are things which could not be compensated in the form of money damages.  Typical breach of contract cases are not eligible for this type of relief.  The reason for this is that money damages may be able to compensate the non—breaching party.

3. The Balance of the Equities.

      This means that fairness dictates that your client should prevail. In this part of the analysis the court will weigh the relative fairness of granting the relief requested and make a decision based, in part, on that  criteria.  This is one of the few areas of the law where fairness really counts for something.


4. Service of the public interest.

      In ruling on a motion for an injunction, the courts will often analyze what is in the public interest as a whole. More often than not, it will be in the public interest to prevent one person from stalking another or to compel repairs in a building that is likely to cause harm to the general public if not repaired. The court is generally required to take into account how non-parties to the lawsuit will be affected by the requested injunction.

5. The Bond Requirement.  

     Although not specifically part of the prevailing test for obtaining an injunction, the Court often requires that the party requesting the injunction post a bond to protect damage to the other party in the event that it turns out that the injunction was wrongfully entered. Sometimes the bond requirement is so high that it makes obtaining an injunction untenable. This is an issue which must be carefully considered at the outset before seeking an injunction. After all, if you get an injunction, and then can’t afford to post a bond, what good is it?

     The final consideration in requesting injunction is whether you will be able to prove your entitlement to one through competent evidence. Most injunction motions need to be verified; in other words, someone must swear to the truth of the facts contained in the motion. Therefore, in most cases, an evidentiary hearing will be required and witnesses will be forced to come to court and testify. Are your witnesses credible ? Will they be able to tell a coherent, cogent story ? This is an important factor in determining whether your client is entitled to an injunction since your client will ultimately have to come to court and explain him or herself to the judge.

     In sum, it is easy to ask for an injunction. It is not so easy to actually get one. 

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