Case Presentation

Per Ray Abadin, past president of the Florida Bar and very experienced litigator, a good attorney will familiarize himself or herself with the courtroom before trial. You will know where you want to be for each part of your case. When you move from one location to another you will know beforehand exactly where you will stand; your “spots”.

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Should We Even Come to the Table?

I’ve seen situations – I’m sure you have too! – where even when court-ordered, the parties do not want to mediate because they believe they are so far apart. Stop a minute. There is going to be a resolution, whether imposed by a court or a jury; or one you craft yourself with opposing counsel. There is no magic. You may indeed be too far apart to reach a mediated settlement. But with good faith, effort and a dedicated, creative, persistent and thorough mediator (like Mediatorman) the unexpected may occur. You do not need to be reminded of the uncertainty of litigation. Why not take a shot?

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Hardball Tactics in Depositions

From Grace Casas, experienced, Miami-based litigator:

Your pearls of wisdom for practice are great. I found that Fla. R. Civ. P 1. 310 (d) can be helpful in cases such as you described this week. A lawyer can ask to suspend the deposition and then immediately file a motion according to that rule to suspend, adjourn or terminate the deposition. This rule isn’t to be used lightly as the movant must certify it’s in good faith because the deposition is being conducted in bad faith such as to annoy or oppress the witness.  Sometimes this is best option especially when people are getting out of control and things may escalate.

 

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Hardball Tactics at Depositions

Opposing counsel constantly disrupts your deposition. You need to state on the record that further inappropriate statements, interruptions and objections will result in your continuing the deposition and filing a motion for protective order and sanctions. This will sometimes result in more reasonable behavior. If not, presentation of the transcript to the Court will give credence to your motion.

 

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Dismissal With Prejudice As A Sanction

At some point, we all are going to miss a deadline. The ultimate sanction, dismissal with prejudice, can be invoked only after consideration of six factors: “1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.” Kozel vs. Ostendorf, 629 So.2d 817 (Fla. 1993). It comes down to a question of whether the attorney or the party should be punished. Thanks to Jeff Cynamon, experienced Miami litigator for this Tip.

 

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Zoom Hearings

Make sure your Notice of Hearing is clear if it is to be via Zoom, not in person. Include the link in the notice. Make sure you have the call in number in case there is an electronic glitch. Have opposing counsel’s cell number and give yours. Make sure both counsel have the cell numbers of everyone on their side who is going to be participating in the hearing so as to be able to recover as quickly as possible if there is an electronic issue.

 

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Pick Up The Phone!

Along with the very welcome convenience and efficiency of video motion calendars comes the less than optimal lack of easy give and take between counsel that occured in chambers or the hallway when in person. I’m not aware of anyone who wants to go back to in person motion calendars but be aware of what’s missing and make an effort to fill in the blanks. Pick up the phone! Communication with opposing counsel might save you and your client stress, time and money. Nothing is going to take the place of calendar call chats but in the right situation the effort may be worthwhile.

 

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courtMap

Per 11th Circuit Judge Barbara Areces, she and other judges in the circuit have found that too often attorneys do not properly use courtMap, resulting in wasted judicial effort and less than optimal case presentation. CourtMap is the way to get a pleading to your judge after it has been efiled. Be aware that having efiled a pleading does not mean that it has been presented to the judge. Only uploading it through courtMap will do that. Be aware of and follow each judge’s specific instructions, all available on the judge’s website. More on this to follow.

 

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Professionalism

Professionalism starts where ethics ends. It addresses character, competence, commitment and civility. Younger attorneys especially please take note. Though this is certainly not universal, I’ve heard over and over how often professionalism seem to be lacking in your actions. All of our reputations with other counsel and with the judiciary are formed by each interaction. Reputation will have a material impact on the quality of your professional life and on your income.

 

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§57.105, Fla. Stat. (2021) Motions

Per experienced litigator Tania Bartolini, there has been a marked increase in the filings of §57.105 motions, almost as if they were motions for extension. As Tania says, “Bullying tactics will certainly come back to bite them in the rear.” Think about it.  The growing lack of civility and professionalism may sometimes be seen as an attempt to hide lack of competence.

 

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