In the last post we started looking at the second or discovery phase of a business lawsuit in Florida as part of our examination of the three basic phases of a business lawsuit. As part of that we looked at depositions as one method for parties to use to question another party or a third-party outside of the lawsuit to obtain or clarify information and documents. Some of the other mechanisms available to parties in a lawsuit are interrogatories, requests to produce documents, and requests for information. When and which of these discovery methods to use is largely the judgment call of your attorney, but he or she should at least explain the options to you and the plan for using them in the overall discovery program.
Interrogatories are limited in number and ask the other side in a lawsuit to answer questions under oath, similar to what happens in a deposition, but they are not the same kind of questions. Requests to produce ask for documents or categories of documents relevant to the lawsuit and likewise have certain limitations and restrictions placed upon them. Requests for admissions ask the other side to admit or deny specific facts or validate documents to save time by not having to do so later. When these requests go beyond what is allowed or they are perceived to do so, they are often met with motions filed by the recipient to which the requesting party can reply. This is commonly called motion practice and the disputes in this phase are either resolved by and between the lawyers or by the Judge in a hearing. Sometimes these issues can grow quite complex and involve unique issues touching on trade secrets, confidential business information, and electronic materials.
In the past several years, the discovery of electronic materials has occupied an increasingly important role in the discovery phase largely as a consequence of how businesses and people store and use information. Few businesses have a file cabinet with paper files nowadays; most have sophisticated cloud-based IT solutions that have become inexpensive and multiply the ability of the business to generate profit. This area of discovery of electronically stored information has aptly become known as e-discovery and is one of the newest and hottest topics in the legal industry.
In order to maintain pace with both its business clients and this evolving area of the law, the Law Office of David Steinfeld has embraced technology in the service it provides and David Steinfeld has taught numerous continuing education classes to Judges and to hundreds of lawyers on e-discovery. He also created a website that evaluated the software from vendors used in e-discovery to better aid law firms across the country in selecting the right software and to provide a more cost effective and better service to clients. Mr. Steinfeld is regularly called upon by the Florida Bar and the Palm Beach County Bar as well as other groups to speak on e-discovery and maintains special relationships with e-discovery software companies that allow the Law Office of David Steinfeld to obtain preferred pricing to benefit its clients.
In a previous post we looked at the three basic phases of a business lawsuit in Florida. We are now starting to examine them in further detail. The second phase is the discovery phase in which the parties try to verify what they think they know and learn information of which they were unaware. They do this with the other party or parties in the lawsuit and with parties outside the lawsuit known as third-parties.
The Rules of Procedure that govern civil lawsuits in Florida provide the parties with ways to obtain documents and information in their discovery efforts and, along with past cases or precedent that have interpreted those Rules, place certain limits on those. Those options include depositions, which are essentially question and answer sessions under oath conducted by a lawyer and recorded by a stenographer also called a court reporter that the party taking the deposition hires and pays. Unlike some of the other discovery options available, a party can use a deposition to obtain or clarify information and to even obtain documents from another party in the lawsuit or from a third-party.
Depositions can also be videotaped in addition to the court reporter and like the court reporter, the party taking the deposition hires and pays for that in most cases. Depositions are coordinated between the parties unless a Judge orders them and prescribes the time and location for them. Ordinarily however, because lawyers are required to conduct themselves in a professional manner, this is all coordinated very easily between the parties without the need or expense of involving the Judge. The website of the Law Office of David Steinfeld contains several articles on depositions and what to do and what not to do in them, but the best preparation is a frank and direct discussion with your counsel before the deposition. There are also some examples on YouTube now of depositions that have gone horribly wrong that make for interesting viewing.
In the prior entry we looked at the three basic phases of a business lawsuit in Florida. Now we will break them down further in this and the next two entries. The first phase is the pleadings phase where the parties file documents with the Court to tell each other what their claims are and whether those are accepted or rejected and what defenses exist.
Some of these documents are the complaint, which starts the lawsuit, an answer and defenses, counterclaims, third-party claims, and cross claims. Starts to sound complex and we haven’t even discussed motions like motions to dismiss or for judgment on the pleadings. The complexity and timing of these procedural mechanisms is codified in Florida’s Civil Procedure Rules and, along with the Rules of Evidence, is what you should expect your lawyer to know and understand as it is his or her tradecraft.
But, as a party to and participant in a business lawsuit, you are in integral part of the matter and a key player on the team. So, your lawyer should educate you on the options available in this phase and keep you informed and involved in this early process of your lawsuit. That is precisely how the Law Office of David Steinfeld treats its clients because the lawyer and the client are, in fact, a team to which the lawyer brings experience with and an expertise in the law, including the procedures, and the client brings the experience and familiarity of the facts and an intimate business knowledge of the other party with whom the client had had business dealings that led to the dispute at the core of the lawsuit.
What really happens in a business lawsuit in Florida – Part 2: The three phases of a business lawsuit
A business lawsuit in Florida can essentially be broken down into three component parts. The first of which is the pleadings stage in which the parties basically file documents with the Court that tell each other what the lawsuit is about. There can be challenges to the claims and refinements of those known as motions to dismiss and amended complaints, but eventually after those issues are all worked out either between the lawyers or by a Judge, this stage comes to an end unless something unique comes up later that causes the parties to have to revisit what they said the lawsuit was about.
The second part of a commercial lawsuit is the discovery phase, which is where the parties obtain information and documents that now includes emails, texts, and even social media posts in some cases. The parties also try to verify information they think they know at this stage. There are several mechanisms that the procedural rules afford to parties such as interrogatories, depositions, requests for documents, and requests to admit certain facts called appropriately, requests for admissions. Parties in a lawsuit can also try to obtain documents and information from third parties who are not named in or directly involved in the lawsuit, but that have relevant information to the dispute. The discovery phase in an average business lawsuit is where most of the time and consequently the money is spent. Thus, having an attorney that can guide you through this part of a lawsuit by targeting discovery for specific purposes based on experience can save money and be of great benefit.
The third phase of a business lawsuit in Florida is the conclusion of the dispute, which may be by mediation, by direct settlement, by procedural mechanisms such as summary judgment, or by trial before either a judge or a jury. While the voluntary resolution options like mediation may come in phase one or two and some procedural mechanisms may also be employed before trial, the resolution by trial option logically comes after phases one and two, thus creating some semblance of a structure to business lawsuits.
Lawsuits are our society’s mechanism for resolving disputes between businesses that they are unable to resolve on their own. But, the reality is that they take a good deal of time and money. Fortunately, David Steinfeld, owner of the Law Office of David Steinfeld in Palm Beach Gardens is a Board Certified expert in business lawsuits with more than twenty years of experience.
Mr. Steinfeld is one of just about 250 of the more than 100,000 lawyers licensed in Florida that has been qualified by the Florida Bar as a Board Certified expert in business litigation. He has even chaired that Committee for the Florida Bar at the behest of its President and written large parts of the certification exam. He has also been recognized for several consecutive years as one of the Best Lawyers in America by U.S. News and World Report, a Florida Super Lawyer, and one of Florida’s Legal Elite among other well-regarded awards and recognitions that are identified on the Firm’s website at www.ThePalmBeachBusinessLawyer.com. But, because lawsuits are only one mechanism to resolve business disputes, the benefit of consulting with Mr. Steinfeld is to discuss and identify the objectives and resources of the business or people involved and to assess all alternatives that may achieve those goals with the resources available to them.
Critical to the prosecution or defense of any business lawsuit is the structuring and framing of the action. Almost akin to constructing a house or building, a lawsuit, counterclaims, and defenses must be carefully considered and planned before their implementation. This is where experience matters. As a former U.S. Army Officer in both the intelligence community and practicing law in the Judge Advocate General’s Corps, attorney David Steinfeld has a unique tactical approach to business lawsuits that optimize the opportunity for success in that venue for any business. So as astronaut Gordo Cooper was famous for saying, who’s the best lawyer (he really said pilot) I ever saw? . . . well, you’re lookin’ at em’.
Common real estate disputes in Florida – Part 3: How do you avoid trouble when buying or selling commercial real estate
Because the concept of buyer beware applies to commercial real estate transactions in Florida, due diligence is crucial and rests on the shoulders of the buyer. The Law Office of David Steinfeld guides both buyers and sellers in structuring certain aspects of commercial real estate transactions. Depending on the property, due diligence may include reviews of rent rolls and the operation of a business or businesses on the property or it may focus more on the condition of the property itself.
Helping the purchaser bring together a qualified team of professionals, such as accountants and property inspectors, is a value that the Law Office of David Steinfeld can bring to the proverbial team in addition to reviewing purchase and sale agreements. Florida law requires that real estate sales occur under written contracts, but unlike residential transactions that largely now use form documents approved by the Florida Board of Realtors known as FarBar contracts, such standard contracts are rare in commercial transactions.
Thus, having an expert business litigator like David Steinfeld who has experience litigating breaches of commercial real estate contracts is of great benefit to parties that intend to buy or sell commercial real estate in Florida.
In Florida, there is a distinct difference in the manner in which residential and commercial real estate transactions are handled. In 1985, the Florida Supreme Court decreed that buyer beware does not apply to residential transactions and sellers must disclose known material facts that are unobservable to a buyer. This mandate is now included in all standard FarBar real estate contracts and most brokerage firms also require buyers to complete a separate seller’s disclosure form.
When a buyer believes that a seller has failed to disclose a material defect usually the discovery of the situation occurs shortly after closing. Therefore, it is important to consult with an experienced and expert litigation attorney like David Steinfeld, who has tried these types of cases to verdict before juries and judges to determine the next and best course of action for your unique situation. While a lawsuit may be one option to resolve the situation, it is not the only option available. Lawsuits in general are expensive and time-consuming, but these types of lawsuits in particular often require a significant number of depositions and, therefore, can become very expensive and very time-consuming. Therefore, it is prudent to carefully examine all of the options available together with David Steinfeld in order to make informed decisions in response to the unfortunate situation.
Although the seller of a home in Florida is obligated to disclose material defects that they actually know of, sometimes sellers do not make such disclosures either as a result of a lack of knowledge or intentionally. As the saying goes, sometimes the best defense is a good offense, which when translated into residential real estate transactions mitigates in favor of retaining qualified inspectors to thoroughly assess the property. The Law Office of David Steinfeld has utilized a number of such inspectors as expert witnesses in lawsuits concerning disclosures and can guide and recommend clients to these professionals as part of guiding and assisting either a buyer or seller in such real estate transactions.
For almost one hundred years in Florida, real estate has been considered a business and lawsuits over real estate have even been addressed on the business litigation board certification exam. While many people purchase a home in which to live, many others buy for investment either in their name or through a business entity, which may also involve several investors. Properly structuring a business for such investment is as important a step just as with a business that intends to sell a service or product and is a service that the Law Office of David Steinfeld regularly offers.
Disputes over the purchase and sale of real estate, real estate contracts, and rentals concerning landlords and tenants are matters that the Law Office of David Steinfeld regularly addresses, but closings and title work are not within the expertise of the Firm and referrals are commonly provided to local attorneys who do that type of work. Chapter 83 of Florida’s Statutes is the Landlord-Tenant Act and provides the obligations applicable to landlords in residential tenancies. However, the obligations of landlords and tenants in commercial rentals is largely governed by the terms of their written lease. The Law Office of David Steinfeld reviews commercial leases to assist and guide businesses in renting space for their operations.
At some point in the lifecycle of a business the option to sell the business or its assets may arise for a variety of reasons. On the other side of that opportunity lies a prospective and motivated buyer interested in obtaining the assets or business itself of the established and going concern. There are a number of factors that impact the decisions on both sides of the potential transaction, but they ordinarily start with some investigation of the opportunity by the buyer, which may or may not need to be guarded by the seller through documents such as non-disclosure agreements.
Once the parties assess the opportunity and are in a position to frame out the terms of the purchase and sale, then they are ready to document those terms so that everyone involved knows exactly how things will turn out and knows the obligations and responsibilities of all the parties. Structuring purchase and sales of businesses in this manner is naturally done to avoid disputes later that can divert attention from running and growing the business or can drain the monies obtained from the purchase.
For several years, David Steinfeld has edited the Chapter on purchase and sale of businesses in Florida for the Florida Bar in its Small Business Handbook. This is a volume that is used by lawyers throughout the State in understanding how to structure such transactions and even provides sample documents for them to use. Thus, in a manner of speaking, you can say that Board Certified expert business lawyer David Steinfeld literally wrote the book in Florida on how to structure contracts for the purchase and sale of businesses.
While trademarks and service marks are one method by which a business can add value to and protect its brand, non-compete agreements, non-solicitation agreements, and non-disclosures are also mechanisms by which a business can place itself in a position to more easily enforce its rights and protect itself. However, there are certain legal restrictions that apply to some of those documents leading one to the recommendation of “don’t try this at home”. Business owners that elect to create their own contracts or download these documents from an unknown source and opt not to invest in expert business law advice, such as that from Florida Bar Board Certified business litigation lawyer David Steinfeld of the Law Office of David Steinfeld, usually create a bigger and more expensive problem for the business later.
A business that relies on its self-created documents can, for years, believe that it is protected by such defective documents only to find out when it tries to enforce them that the business is unprotected, has exposed its proprietary and confidential business information, and created its own competition that can damage or destroy the business. After spending years and significant sums to grow a business, one of the worst imaginable issues that the owner or owners can face is learning that they are helpless to fight off an attack from a former employee or new competitor who has absconded with what the business owner thought was protected proprietary business information.
Thus, sophisticated business owners invest the time and money to consult with Florida law business experts like David Steinfeld to understand the options available to them and to be able to make informed decisions on those points, which avoids more costly future disputes ever time.