Prove My Florida Case

 

 

Prove My Florida Case is my blog discussing Florida appellate, evidentiary, and trial issues and perspectives.  This blog focuses on issues that are important to proving YOUR case! 

 

 

In a great victory for those handling difficult contingency fee disputes (particularly contingency fee disputes dealing with economic damages, such as me), the Florida Supreme Court held that the contingency fee multiplier is not to be applied only in the rare and exceptional case. Oh no! Had the Court entered such a ruling, this would have […]

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Copyright ©  [The Contingency Fee Multiplier is NOT just for the Rare and Exceptional Dispute], All Right Reserved. 2017.
Author: David Adelstein

Arbitration is a creature of contract. If a contract requires arbitration that means the parties are required to arbitrate their disputes as opposed to litigate their disputes. Instead of their being a judge or jury, there will be an arbitrator. There are three considerations when determining whether a dispute is subject to arbitration: 1) Is there […]

The post Arbitration is an Appealable Non-Final Order appeared first on .



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Copyright ©  [Arbitration is an Appealable Non-Final Order], All Right Reserved. 2017.
Author: David Adelstein

Punitive damages can be an important component of a plaintiff’s damages. No doubt about it. No defendant wants the jury to be able to determine whether to award these damages or the quantum of punitive damages associated with its/his/her gross negligence or intentional misconduct.  Punitive damages can be a game changer. The objective behind punitive […]

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Copyright ©  [Strictly Complying with Procedural Requirements when Moving to Amend to Add Punitive Damages], All Right Reserved. 2017.
Author: David Adelstein

  In an earlier posting, I discussed the difference between a motion for rehearing and motion for reconsideration.   From that posting, you know that a motion for rehearing is a post-trial motion and, in particular, a motion that applies post-judgment. A properly filed motion for rehearing will toll the time to file an appeal.  There […]

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Copyright ©  [Abandonment of Post-Trial Motions through Notice of Appeal? Not Anymore...], All Right Reserved. 2017.
Author: David Adelstein

In a big case for employers that rely on referrals for the viability of their business, the Florida Supreme Court held that referral sources may be a protected legitimate business interest under Florida Statute s. 542.335 based on the context and proof.  Hence, referral sources can be protected under a non-compete / non-solicitation agreement that prohibits […]

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Copyright ©  [Referral Sources can be a Protected Legitimate Business Interest], All Right Reserved. 2017.
Author: David Adelstein

Motions titled rehearing and reconsideration are routinely used interchangeably, as if there is no difference between the name “rehearing” and the name “reconsideration. There is a difference though. A motion for a rehearing is distinct from a motion for reconsideration and this distinction is key. Not understanding the difference between a motion for rehearing and […]

The post Motion for Rehearing or Reconsideration: What is the Difference? appeared first on .



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Copyright ©  [Motion for Rehearing or Reconsideration: What is the Difference?], All Right Reserved. 2017.
Author: David Adelstein

The collateral source rule is the source of unnecessary confusion. This rule is aimed at preventing an injured-plaintiff from having its cake and eating it too – from receiving a windfall from the defendant-tortfeasor based on compensation the plaintiff received from collateral sources. The collateral source rule allows an injured plaintiff to present all of […]

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Copyright ©  [Collateral Source Rule - Prohibiting an Injured Plaintiff from having Its Cake and Eating It too], All Right Reserved. 2017.
Author: David Adelstein

Caveat Emptor.  Buyer Beware!!!! This is a doctrine that applies to commercial property transactions. Watch out and do your due diligence when entering into a commercial real estate transaction. If you do not, the doctrine of caveat emptor will apply which puts the onus on you, the buyer, to discover material facts relating to the […]

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Copyright ©  [Caveat Emptor = Buyer Beware = Watch Out!], All Right Reserved. 2017.
Author: David Adelstein

Sometimes, a trial court issues a pre-trial order on a discovery issue that a party claims causes it irreparable harm.   In this situation, the only basis to appeal the pre-trial discovery order is through a petition for writ of certiorari, as recently explained by the Second District Court of Appeal: A party seeking review of […]

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Copyright ©  [Writ of Certiorari to Remedy Pre-Trial Discovery Order], All Right Reserved. 2017.
Author: David Adelstein

Have you been duped into procuring something through misleading advertising? There is a Florida Statute that provides a civil cause of action for misleading advertising. Florida Statute s. 817.41 provides a statutory cause of action for misleading advertising that gives the prevailing party a basis to recover their attorney’s fees in addition to a potential […]

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Copyright ©  [Florida Statutory Cause of Action for Misleading Advertisement], All Right Reserved. 2017.
Author: David Adelstein

Many non-final orders are NOT immediately appealable. The immediate right to appeal non-final orders are enumerated in Florida Rule of Appellate Procedure 9.130. (And, prior postings have discussed the burden in moving for a writ of certiorari based on a non-final order.) Fair or unfair. These are the rules that govern appellate proceedings. When you […]

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Copyright ©  [Not All Non-Final Orders are Immediately Appealable], All Right Reserved. 2017.
Author: David Adelstein

The nonperformance of conditions precedent must be pled with particularity. Florida Rule of Civil Procedure 1.120(c) provides: Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or occurred. A denial of performance or occurrence shall be made specifically and with […]

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Copyright ©  [Properly Pleading the Affirmative Defense of the Nonperformance or Nonoccurrence of Conditions Precedent], All Right Reserved. 2017.
Author: David Adelstein

I am sure you have an insurance policy…some type of policy. An automobile liability policy. A commercial general liability policy. A professional liability policy. A property insurance policy.   A directors and officers liability policy. A workers compensation insurance policy. There are many types of insurance policies. I am sure you have some insurance policy to […]

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Copyright ©  [Insurance Policy Construction is a Question of Law], All Right Reserved. 2017.
Author: David Adelstein

Many rules of civil procedure are liberally construed to prevent the  “oops!” or “gotcha!” tactic if a rule is not perfectly complied with. Courts are hesitant to allow another party to prevail merely because its opposition committed a technical or procedural error. Technical wins are generally not favored, as long as there is a reasonable […]

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Copyright ©  [Courts do Not Favor the Technical (Oops!) Wins], All Right Reserved. 2017.
Author: David Adelstein

We think of the word “conspiracy” in the criminal context. A criminal conspiracy. Sounds bad. Real bad. But, there is a cause of action in the civil context called “civil conspiracy.” Granted, this is a fact-based claim that is challenging to prove at trial, but nevertheless, such a claim exists if you can prove that […]

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Copyright ©  [Civil Conspiracy - Not Just a Claim in the Criminal Context], All Right Reserved. 2017.
Author: David Adelstein

Moving for appellate attorney’s fees? If you do, make sure you TIMELY file a motion!  Appeals take time…in many instances, lots of time…and if there is a basis to recover attorney’s fees, you want to make sure a motion is timely filed and supported by a contractual or statutory basis. Florida Rule of Appellate Procedure […]

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Copyright ©  [Timely Move for Appellate Attorney's Fees (if You have a Basis!)], All Right Reserved. 2017.
Author: David Adelstein

Seller’s Remorse? We all have experienced buyer’s remorse in some fashion, but what about seller’s remorse? Perhaps talked about less than buyer’s remorse, but sellers can have regrets too.   This, however, does not mean that a seller’s remorse can go consequence-free, particularly when the seller backs out of a deal or sabotages the deal because […]

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Copyright ©  [Seller's Remorse can have Consequences, Particularly when the Seller Acts in Bad Faith], All Right Reserved. 2017.
Author: David Adelstein

Business relationships are important.  It is all about relationships in all walks of life!  What if someone interferes with your business relationship?  What if that interference is intentional or unjustifiable? There is a cause of action known as tortious interference with a business relationship. Monco Enterprises, Inc. v. Ziebart Corp., 673 So.2d 491 (Fla. 1st […]

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Copyright ©  [Cause of Action for Tortious Interference with a Business Relationship], All Right Reserved. 2017.
Author: David Adelstein

Woo-hoo! I got a real good J-O-B! Great pay. Great benefits. Great location. Doing what I want to be doing with my skillset. My new employer wants me to sign an employment agreement, but I have signed such agreements in the past, so this is no big deal. Or, is it a big deal? There […]

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Copyright ©  [Restrictive Language in Employment Agreement], All Right Reserved. 2017.
Author: David Adelstein

There is the sentiment that parties can say and do whatever they want in a judicial proceeding and all actions will be exempt and immune under a litigation privilege. Such sentiment is misguided. There are consequences for malicious / bad faith conduct and statements that cause damage to the adverse party including a claim for malicious prosecution.   […]

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Copyright ©  [Malicious Prosecution Arising from Judicial Proceedings--There are Consequences], All Right Reserved. 2017.
Author: David Adelstein