Professional Services Industry Legal Blog

As a case develops, parties exchange information through a process known as discovery. Discovery is a truth seeking device- each party is able to discover facts that the other party has. Parties and their attorneys are expected to comply with requests for discovery.

Florida’s Fourth District Court of Appeal recently found in Garvin v. Tidwell that the appellee, Tidwell, violated her discovery obligations by failing to disclose an advertisement that featured her horse. No. 4D11-2712, 2012 WL 523224 at *3 (Fla. 4th DCA Oct. 24, 2012). The court allowed the appellant, Garvin, to rescind the settlement agreement because Garvin was not aware of all of the material facts because of Tidwell’s failure to disclose information during discovery. Id. at *5. Let this case serve as a lesson to any lawyer or party considering executing a settlement agreement if you have been less than truthful or forthcoming in the discovery process.

Just as we can’t see the air we breathe or radio waves transmitting data around the world, neither can we see thoughts and ideas. However, this does not mean they don’t exist.  Similarly, for those Professionals whose work product may not be a tangible, fungible item, their work product nonetheless […]

I recently came across a piece of information that I had never heard before in my last four years of litigating creditor’s rights cases. I have been advised that attorneys’ fees can never be granted on a Motion for Final Judgment after Default. Who knew? I have had hundreds of default judgments entered, nearly all of which included attorneys’ fees, without once being told that this practice was incorrect. So is it really incorrect?

What do you think when you hear the word “e-discovery”?  If you are thinking about CD copies of printed PDF documents and web site screen shots, you have a lot to learn.  There is so much more a simple document can tell you when you obtain it in its native format […]

In preparation for trial, expert witnesses are often retained and briefed based upon reports and documents provided to them from counsel. Two types of work product may be used to prepare documents and internal memorandum which are subsequently given to an expert witness: 1) fact work product, and 2) opinion work product. If memorandum prepared by a law firm in anticipation of litigation contains the attorney’s opinions relating to potential theories of liabilities, references to the expert’s opinions, and factual summaries of his client’s records, the attorney’s personal notes and records about the proposed arguments constitute protected work product. Whealton v. Marshall, et al., 631 So. 2d 323, 325 (Fla. 4th DCA 1994) (holding the law firm’s internal memorandum used in preparation for litigation were not discoverable work product).

Defaulted borrowers often attempt to argue that the waiver of defenses language included in loan documents is unconscionable and therefore unenforceable. However, for a contract to be held to be unenforceable under Florida law, the contract must be both procedurally and substantively unconscionable. See Golden v. Mobile Oil Corp., 882 F.2d 490, 493 (11th Cir. 1989); Gainesville Health Care Center v. Weston, 857 So. 2d 278, 284 (Fla. 1 st DCA 2003). If a contract is found to be either procedurally or substantively conscionable, then the contract is enforceable. See Eldridge v. Integrated Health Services, Inc., 805 So. 2d 982 (Fla. 2d DCA 2001)(emphasis added).

In commercial litigation, it is very common that the corporate designee at trial is not a particularly insightful factual witness. When the factual witnesses at trial are employees of an opposing party that is headquartered out of state, this often puts you in a position where you are taking “trial depositions” and reading in transcripts at trial. As you can imagine, this does not have the same effect that a live witness does, but is there a way around it?

An expert witness is an individual that is authoritative in their particular field and able to assist the finder of fact in reaching a conclusion at a trial. Aside from discerning whether the potential expert witness is someone who can make some sort of impact on the case and present well to a fact finder, it is important to know what is required in order to have that expert presented to the fact finder for evaluation of the expert opinion. This post describes the law and methods utilized in qualifying an expert witness in Florida.

The Constitution of the United States of America is the ultimate authority which allows foreign judgments to be domesticated in Florida.  Judgments of any other state in the union may be domesticated in Florida, but its statute of limitations varies depending on how and why a petitioner is seeking enforcement.  […]

A Limited Liability Company (“LLC”) is a business entity structure which is allowed  by Chapter 608, Florida Statute.  As a result, what the statute creates, the statute can also take away.  A LLC allows its owners (called Members), to have limited personal liability for the debts and actions of the […]