Summary Judgment

Originally posted on The Florida Litigator:

Sometimes lay people and even practicing lawyers do not seem to understand what a Summary Judgment is and how to get one.   In some Courts, obtaining a Summary Judgment is difficult, if not impossible.   Other Courts love Summary Judgment and use it as a mechanism to reduce case load.   This article will provide some tips about how to get Summary Judgment and how to avoid having such a motion granted against your client.

1.            Where Summary Judgment Works and Where it Does Not.

There are certain cases which do not lend themselves to Summary Judgment.   Examples of such cases include the typical negligence case, medical malpractice and cases involving the interpretation of a contract where there is an ambiguity which is required to be explained by oral testimony.   Judges are reluctant to grant Summary Judgment in these types of cases because of the likelihood of reversal.   Remember that State and…

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Social Media Hearsay Objections

Originally posted on Bow Tie Law's Blog:

Social media being offered into evidence in any case will almost always have hearsay objections if the proffered evidence is a status update, comment, Tweet, or even video.

The reason? Virtually everything on social media is a statement. Unless the social media is only a photo with no text, there is a almost certainty that any social media evidence will have a hearsay objection.


Case in point: a Plaintiff in employment age discrimination litigation during summary judgment attempted to introduce deposition testimony from the Plaintiff about a Facebook status message from a current employee about customer complaints and that the declarant was “sick and tired” of it. Fairweather v. Friendly’s Ice Cream, 2014 U.S. Dist. LEXIS 100755, 12 fn 11 (D. Me. July 24, 2014).

The Court found the Facebook status message “problematic,” because it was made more than a year after the Plaintiff had been terminated, thus would not be admissible…

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A Document Production You Can Believe In

Roger Slade:

Required Reading Prior to my Document Production Seminar

Originally posted on The Florida Litigator:

Recent news in South Florida tells the sad story of a law firm involved in the defense of a major fraud case on behalf of a well-known local bank which was slammed with a $67 million jury verdict after trial.  If that wasn’t bad enough, after the verdict came down, it came to light that the bank failed to produce certain critical documents which plaintiff’s counsel believed would have altered the verdict and made plaintiff’s award even higher had the Jury seen them.  If you were the lawyer responsible for supervising and implementing the document production in this case, and this issue came to light after the trial, there may be only one thing left for you to do – quit your job.  How could you prevent such a debacle?  Read on.

  1. The Dreaded Document Request

There is  probably nothing that a litigator likes less than receiving the dreaded “Request…

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The Advantages of Contacting Opposing Counsel 34 Minutes After Inadvertent Disclosure of One Email

Roger Slade:

Thoughtful Article

Originally posted on Bow Tie Law's Blog:

Ahhhhhhh!!What happens when a lawyer inadvertently produces an email protected by the attorney-client privilege? A Magistrate Judges and District Court Judge orders the receiving party to destroy the inadvertently produced email.

Iowa is the home of where John Atanasoff invented the first computer in 1939. It is also the home of Federal Judges who conduct excellent legal analysis of whether an inadvertent production waives the attorney-client privilege over an email.

Defense counsel inadvertently produced a privileged email and once learning of the production, called Plaintiff counsel within 34 minutes. Pick v. City of Remsen, 2014 U.S. Dist. LEXIS 128411, at *2-4, 11 (N.D. Iowa Sept. 15, 2014).

The Plaintiff refused to destroy the email and instead offered to redact the attorney-client advice.

The Court applied the following test for determining whether a privilege had been waived:

(1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the…

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Know Thine Enemy

“Keep your friends close and your enemies closer.” Sun Tzu

      We have spent a substantial period of time in this column discussing the importance of understanding your own client, the law and relevant Court procedure. What we have not focused on, however, is the need to understand your adversary. Ignoring your adversary, or underestimating him or her, can have drastic consequences for the fate of your case.

       By adversary, I do not mean opposing counsel; I mean the opposing party. Whether you are plaintiff or defendant, it is only the foolish lawyer who ignores who is on the other side of the case. The good news is that there are plenty of opportunities to learn as much as possible about your adversary without spending a lot of your client’s money on a trained investigator. Here are a few suggestions.

  1. Google Search

     How about starting with a Google search. While this may seem overly simplistic, it is often the easiest way to begin your analysis. Perhaps the opposing party has his or her own webpage. Perhaps they have been quoted or featured in an article in a newspaper or magazine. Sometimes, through a carefully calibrated Google search, you can learn a person’s entire history – where they went to school, where they graduated college and where they worked. Their political opinions are often featured as are there Federal campaign contributions.

     After exhausting textual information I often do an image search. I want to see what they look like. Are they young or old? What race are they? What do they like to do? Are there pictures of our adversary posing next to a new Ferrari? This could be useful, particularly if you represent the plaintiff in a case involving a substantial damage claim.

  1. The Public Records

     I like to do exhaustive searches in the public records. I want to know where the opposing party lives. Does he or she live in a cheap apartment in a bad neighborhood or do they live in a mansion on the beach This may help me gauge whether the opposing party has enough resources to withstand the litigation assault which is likely coming. Litigation is the sport of kings and it is likely that someone who lives hand to mouth will crumble before your average industry magnate.

     Criminal records are often useful. Is your adversary a convicted felon? Have they done time in prison? Wouldn’t you want to know that before you take her deposition? What about drug convictions? Will you ask him, at the start of the deposition, whether they are taking any medication?

     Does your adversary own a vehicle? Is it a beat up old jalopy or a new Mercedes? Is it owned or leased?

     How about your opponent’s interest in corporations. Does your adversary appear in the public records as an officer or director of a business ? This is important to know because, when you start your deposition, you may want to ask what businesses your adversary is affiliated with. This will give you an opportunity to see if your adversary will lie. Many people do. They tend to underplay their involvement in different businesses. It can be fun to mark as an exhibit a copy of the public records showing how many corporations they are involved with. Videotape this and watch your opponent squirm. If your opponent will lie about something as basic as what corporations they are involved with imagine what else he or she may be lying about.

  1. Linked In

     LinkedIn is great for determining a person’s past employment and future stated goals. Most people post their life story on LinkedIn without giving it serious thought as to whether that information may be subject to review and analysis by an opposing lawyer. It is great fodder to obtain a work history from LinkedIn.

  1. Facebook

     I love Facebook. Facebook provides a window into someone else’s life that you cannot get anywhere else unless you actually know them personally. It is great for finding out where someone lives and who their friends are. When your partners at the law firm complain that you are spending too much time during the course of the day on Facebook tell them, with a straight face, that you are doing research !     

     Just like it is important to understand your case and the law, it is also important to understand your adversary. Understanding your adversary could help you serve process, formulate discovery requests and determine whether you will be able to collect on your judgment. And it all may be there, right in front of you, on the internet.

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What to Do When the Judge is Wrong

What do when the Judge is Wrong

Judges are wrong sometimes. Aren’t they ? If you typed the word “reversed” into the general federal database on Westlaw you would get thousands of hits wouldn’t you ? Of course, you would. Thus, it is fair to presume, and for you to tell your client under appropriate circumstances, that when the Judge has ruled against you, he or she simply made a mistake.

This can be hard to explain to a client. Clients sometimes believe that Judges are infallible; after all, they wear the big black robe, everyone genuflects when the Judge walks into the room (“all rise”) and clients presume that every judge is appointed to the Bench only after having been chosen by the President of the United States, vetted by the Secret Service and approved by Congress. That impression, while true for federal judges, does not apply to State Court Judges who are often elected and sometimes appointed by the Governor. Therefore, the Judge can be, in certain instances, human and, indeed, fallible like everyone else, subject to mistakes.

There are, however, all kinds of mistakes that Judges can make. There are big mistakes and little mistakes. There are immediately appealable mistakes and mistakes which are not immediately appealable. Ultimately, all of the Judge’s mistakes are subject to appeal – the question is when may an appeal be filed. You would think that this would be a relatively simple question to answer. Wrong ! The appeals courts have made this determination so complex that sometimes regular litigators do not feel comfortable answering it – they need to actually hire someone who has a specialty and is referred to as an “appellate lawyer.”

To many clients, the suggestion that an “appellate lawyer” needs to be hired only means one thing – more money. Without meaning to besmirch the reputation of the many fine appellate lawyers in our community, I would suggest that this is sometimes necessary and sometimes not. The average litigator should be able to handle the average appeal. The first question to answer is, however, whether you have the right to an immediate appeal or have to wait until after the conclusion of the whole case.

The appellate courts in Florida apparently face crushing workloads. That is why they, through their friends at the Florida Legislature, the Florida Legislature has restricted your right to file an immediate or what is sometimes called an “interlocutory” appeal. There are several rules which apply and which, if followed, may prevent your client’s appeal from being dismissed by the appellate court after it is filed.

1. The Order subject to the appeal must resolve all Issues among at least some of the parties.

Losing a summary judgment motion can be painful. However, the appeal of such an order entered with respect to such a motion requires careful thought to determine whether it is appealable. If your client is the moving party, and loses a summary judgment motion, the chances are that the Order is not appealable. Why ? Because the appellate courts want the trial courts to resolve cases and do not want litigants and their counsel to file an appeal every time a summary judgment motion is lost. The Courts would then be flooded with appeals filed by unhappy litigants.

2. Is Judicial Labor at an End ?

On the other hand, if your client loses a summary judgment motion, and an order is entered against it which resolves the entire case, the chances are that your client will be entitled to file an immediate appeal. This is because the “judicial labor [in the trial court] is at an end”. This is a fancy way of saying that the Judge is done working on the case and it can now be comfortably reviewed by someone else.

3, What if Summary Judgment is only Partial and there are other claims in the case still to be resolved ?

If there are claims which remain in the case, which are not resolved by a summary judgment motion, even if summary judgment does resolve most of the issues, it is likely that the order is not appealable until the end of the case. This is because the Order does not resolve all issues among the parties and because “judicial labor is not at an end”; in fact, arguably, judicial labor may still be in its nascent stages because the Judge is now tasked with addressing pre-trial motions, ruling on other summary judgment issues and actually trying the case.

The world of appeals can be complex. Every order must be determined based upon specific facts before a determination can be made as to whether an order is subject to an immediate appeal.

Determining whether an Order is appealable can be a very nuanced undertaking. However, the average litigator should be able to figure it out after reviewing the applicable appellate rules and case law. One would think that some wise appellate lawyer would have assemble a list of appealable orders for ready reference by the Bench and Bar. In fact, I attended a seminar at the Third District Court of Appeals hoping that someone would have compiled such a list and passed it out with the materials. While the hand outs were extremely helpful, and synthesized the recent case law on the subject, no handy check list was provided. Thus, it remains the job of the litigator to make appropriate determinations about what types of Orders are, and are not, subject to an immediate appeal.

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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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