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“The code is more what you'd call ‘guidelines’ than actual rules.” – Barbossa, Pirates of the Caribbean

Florida Rule of Judicial Administration 2.250(a)(1) enumerates the time standards of a civil matter from the filing of a complaint to final disposition. Specifically, the Florida Supreme Court suggests that a jury case should be concluded within 18 months of the filing of a complaint, 12 months for a bench trial, and 95 days for a small claim matter. As practitioners, we know that rarely does a case (actually litigated) resolve within those time frames. However, there has been a trend over the last few years in county court matters to dispose of claims and deny amendment of pleadings based[...]

Nip a Punitive Damages Claim in the Bud: Procedural Issues Corporations Should Attack

Punitive damages in Florida are meant to punish a defendant for wrongful conduct and deter similar conduct in the future. Once a claim for punitive damages is injected into a case, the landscape of the litigation changes, opening the door to financial worth discovery and increasing the potential value of the claim. The game-changing nature of punitive damages claims highlights the importance of attacking these claims from all angles. In Florida, a claimant seeking punitive damages must first seek the court’s leave to assert the claim. This step requires the claimant to comply with a pleading component and an evidentiary[...]

Supersedeas Bonds & Real Property

Guided by a federal standard, the Third District Court of Appeal recently clarified the factors relevant to calculating the amount of a supersedeas bond where the final judgment pertains to real property. First, some basics. A party on the losing end of a final judgment will frequently seek appellate review. The filing of a notice of appeal, however, does not automatically stay the execution of the final judgment. Instead, the appellant must first seek a stay from the trial court. If not successful, the appellant may then seek review of the trial court's denial of a stay from the appellate[...]

“You’ve Got Mail!” . . . But Do You Actually Ever Need to Receive It?

A common issue arising with first-party insurance litigation is when a homeowner alleges her or she did not receive payment of an insurance claim by mail. Insureds, or their assignees, often allege their insurance company never paid a properly submitted, claim because the insureds never received the insurance company’s reimbursement payment by mail. In this instance, the insureds often file suit against their insurance company for non-payment of funds under their homeowners’ policy. In some first-party cases where the insurance company re-issues a check after the insured or assignee alerts the insurance company of non-receipt of payment by mail, the[...]

Ancient Pure Bill of Discovery

A pure bill of discovery is an equitable remedy, rarely used since the adoption of the Florida Rules of Civil Procedure. This underutilized pleading can be used to petition the court for an order requiring a party to produce documents or to disclose facts that can be used in an expected lawsuit. However, the filing of a bill of discovery is justified only in narrow and limited circumstances. Specifically, a bill of discovery may be used in the absence of an adequate legal remedy to: 1) identify potential defendants and theories of liability, and 2) to obtain information necessary for[...]

Bad Faith & The Abuse of Civil Remedy Notices

CSK’s nationally recognized bad faith attorneys hold vast experience in defending, guiding and consulting all types of clients in bad faith claims including the abuse of Civil Remedy Notices (CRN) by Plaintiffs’ attorneys. The intricacies of litigating bad faith issues are routine procedure for many CSK attorneys. CRNs are processed and filed through The Department of Financial Service (DFS). CRNs are“intended for use by parties who are beginning the process of filing suit against an insurer, when a party feels they have been damaged by specific acts of the insurer.” However, DFS makes it clear that it “does not involve[...]

Perfecting Proposals for Settlement

In addition to briefing and arguing appeals, CSK’s Appellate Practice Group routinely provides litigation support at the trial level including formulation of defense strategy, handling dispositive motions, and providing appellate support at trial. The Appellate Group also serves as a consulting resource to CSK’s clients and trial attorneys by assisting with legal research and providing answers to difficult legal questions. In particular, the Appellate Group analyzes draft proposals for settlement and offers of judgment to ensure compliance with section 768.79, Florida Statutes, Florida Rule of Civil Procedure 1.442, and Federal Rule of Civil Procedure 68. The requirements for a valid[...]

Lien on Me: Attorney’s Fees Liens in Florida

It is very common for Florida claimants to change attorneys during litigation. Invariably, the now former attorney will immediately send a letter to the insurer and new attorney asserting an attorney’s fee charging lien. Often, this letter is ignored, especially if very little work has been done on the case to date. However, if received, the insurer has a duty to protect the lien. Virtually every jurisdiction in the United States recognizes the right of an attorney to recover fees by imposing a lien on a judgment obtained by his efforts for his client. See Scott v. Kirtley, 113 Fla.[...]

Admissibility of Expert Testimony Under the Daubert Standard: The “Reliability” Factor

In May 2019, the Florida Supreme Court found the standard set forth in Daubert v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), would determine the admissibility of expert testimony in Florida. See In re Amendments to Fla. Evidence Code, 44 Fla. L. Weekly S170 (Fla. May 23, 2019). Under Daubert, the three main elements a trial court considers to determine admissibility are: 1) whether the expert is qualified in the area of testimony; 2) whether the methodology used by the expert in formulating an opinion was reliable, and 3) whether the testimony would assist the jury in understanding the evidence[...]

Florida Law Update: New Law Requires Consent for Pelvic Examinations and Defines Reproductive Battery

Florida HB 698 went into effect on July 1, 2020. This bill prohibits any health care provider, medical student, or other student studying under a health care practitioner from performing a pelvic examination of a patient without the patient’s consent or consent by the patient’s representative. The new law defines “pelvic examination” to include examinations of female anatomy, and it contains other non-gender specific terms, such as an examination of the rectum and “external pelvic tissue or organs.” The new law does not differentiate between medical subspecialties, and it applies to both females and males. There are two exceptions to[...]