An interesting note for litigation practitioners was recently discussed in the Fifth District of Florida when the District Court of Appeals was asked to decide whether sworn statements of witnesses taken by counsel for one of the parties are entitled to privilege under the work product doctrine.
The work-product privilege, which generally protects the notes, written thoughts and expressions of counsel in anticipation of litigation, may not be generally thought of as a form of protection for statements made by third parties. In this way, the Selton v. Nelson, serves as a great reminder that sworn statements prepared by counsel for witnesses in a dispute are afforded work-product protection from discovery “absent rare and exceptional circumstances.” 41 Fla. L. Weekly D2337 (Fla. 5th DCA October 14, 2016). Stated differently, the court must determine whether the party seeking production would be unable to secure the equivalent without undue hardship. Id.
This case also serves as a reminder that there are many niche and unusual aspects of the law and litigation facing parties to a business dispute and that the best defense against unknowingly running afoul of either the law or the party’s rights is to seek the help of an experienced litigation attorney with knowledge of the pitfalls awaiting the unwary.
A potentially landmark ruling was issued recently on the issue of the strictness of construction of offers of judgment and/or proposals for settlement under Florida Statutes § 768.79 and Florida Rule of Civil Procedure 1.442. Though, perhaps the ruling itself further makes murkier the already tricky offer of judgment waters.
Previous to the certified conflict between the First District in Borden Dairy Co. of Alabama, LLC v. Kuhajda, 171 So. 3d 242 (Fla. 1st DCA 2015) and the Fourth District in Bennett v. American Learning Systems of Boca Delray, Inc., 857 So. 2d 986 (Fla. 4th DCA 2003), as discussed in Kuhajda v. Borden Dairy Co., 41 Fla. L. Weekly S471 (Fla. October 20, 2016), the landscape was clear, if not laden with traps for prospective offerees.
The previous clarity was lent by the Supreme Court of Florida in Diamond Aircraft Industries, Inc. v. Horowitch, where the Court made it clear (seemingly) that any deficiency—even if only a technicality and even (again, seemingly) despite the relative irrelevance of the deficiency to the action—would render the offer invalid. 107 So. 3d 362 (Fla. 2013). For instance, under the holdings which were embossed by Horowitch, even the arguable deficiency of failure to mention attorneys’ fees in an offer where no attorneys’ fees have been sought in the case renders the offer invalid (e.g., Borden Dairy Co. of Alabama, LLC v. Kuhajda).
To show even more the “strictness” of interpretation afforded before Bennett, courts had invalidated offers on the basis of failure to state both whether attorneys’ fees were included in the offer and whether they were sought in the claim (i.e., simply stating one or the other would not suffice). Deer Valley Realty, Inc. v. SB Hotel Assocs. LLC, 190 So. 3d 203, 205 (Fla. 4th DCA 2016).
However, the Court recently held in Kuhajda v. Borden Dairy Co. that an offer is not invalid simply because it fails to address whether the proposal includes fees and whether the fees were sought in the action if the action did not, in fact, seek attorneys’ fees as part of the claims therein. 41 Fla. L. Weekly S471 (Fla. October 20, 2016). It would have been arguably a major departure and loosening of the “strict” standard for interpretation of the statute and rule to simply state that the offer in question need not address whether attorneys’ fees were included in the offer if it stated that fees were not sought in the case. However, to state that neither was required seems to fly fully and firmly in the face of the long-held (and what could fairly be described as ‘hyper-technical’) strict construction mantra used to strike down innumerable offers on what often amounted to insubstantial technical deficiencies.
It will be interesting to track how far district courts are willing to go in loosening standards under § 768.79 and Rule 1.442 following Kuhajda. Offers of judgment now potentially move from the realm of clear law with many known traps, to unclear law and unknown traps. Such rulings often keep litigators very busy in the time after reconsidering their position in cases where offers of judgment are in play and remind litigants that the expertise of an experienced litigation attorney is more valuable now than ever. If you have questions about your case or need help in a dispute, turn to the trusted litigation attorneys of Icard Merrill today.
A father recently appealed a court’s order in a divorce action on two points that together remind us of the challenges and intricacies of modern divorce actions. In the case of Saucier v. Nowak, a father sought to have a court order amended to reflect a schedule for daily Skype video conferencing with his child (something the child’s mother contested on appeal). Further, the father asked that the court apply imputed wages (i.e., wages that were not actually earned) to the mother based on the fact that the mother was a trained phlebotomist and was instead only imputed an amount equal to the state minimum wage. 41 Fla. L. Weekly D2339 (Fla. 5th DCA October 10, 2016).
This case highlights some issues present in divorce actions being brought in the current day and age, the first of which is the prevalence of other means of contacting and staying in touch with loved ones. Skype and other video conferencing software is widespread now in its accessibility and use. Other forms of electronic connection are available and emerging, as well. It’s not inconceivable that orders could start being sought and rendered for a period of daily cooperative gaming between parent and child using headsets and video game servers. There are many means available to stay connected now, and courts have long recognized the value in children staying as connected as practicable to the non-majority timeshare parent. These alternative ways of staying in touch simply make that goal more attainable and some creative use of technology is something that parents should consider in a divorce action.
The second highlight from the Saucier case is a continued effort to see parents encouraged to reach their full economic potential—or perhaps more accurately, to penalize those parents who are the recipient of spousal support and who don’t realize that full potential. It is a bit interesting, perhaps, to contrast that the “balanced life” counter-culture now often associated with millennials refusing to take up the yoke of the financial results-focused generations made famous in the 1980’s with that latter money-driven “workaholic” mindset. Regardless, courts do in some cases reduce the amount of spousal contribution where a parent receiving that support is not either putting in the amount of hours they could be working or if they take work that is below their reasonable earning level.
The challenging (or enforcing) these mechanisms takes real skill in order to maximize a party’s chances of success. If you are facing a divorce or are seeking to review or amend a previous order in your divorce case, reach out to the skilled and effective family law attorneys at Icard Merrill today.