FAQ

Attorney fee provisions can often be overlooked during contract negotiations, but they can have a significant impact on the outcome of a dispute. When such a provision exists, the prospect of recovering attorney’s fees can influence bargaining power in negotiations, whether a dispute is worth pursuing, how aggressively it is litigated, and whether settlement makes sense. Before signing any contract, it is important to understand whether an attorney fee provision is included, what it encompasses, and how it may affect your exposure in the event of a dispute.

Every contract in Florida carries with it an implied covenant of good faith and fair dealing. This equitable relief means that even when a contract is silent on a particular issue, the parties are expected to act honestly and in a manner consistent with the other party’s reasonable expectations. It can be a powerful tool when one party acts in a way that technically complies with the contract but undermines the other party’s ability to benefit from the agreement. Understanding this covenant is essential in evaluating the veracity of potential claims.

Authentication is the process of proving that a piece of evidence is what it claims to be. In civil litigation, this is a critical step – courts will not admit evidence that has not been properly authenticated. While there are various methods of authenticating evidence, the most common and straightforward method is confirmation by the author or creator of the document themselves – whether through deposition testimony, an affidavit, or testimony at trial. Common forms of evidence in civil disputes, such as emails, text messages, contracts, financial records, and social media posts, can often be authenticated in this manner – though the specific circumstances of each case will govern the most appropriate approach. Early attention to how key evidence should be authenticated can be the deciding factor in a case. Working with experienced counsel from the outset helps ensure that critical evidence is preserved, properly obtained, and ready for use at trial or in dispositive motion practice.

A Proposal for Settlement, governed by Section 768.79 of the Florida Statutes and Florida Rule of Civil Procedure 1.442, is a powerful litigation tool unique to Florida that can shift the burden of attorney’s fees from one party to another. Either a plaintiff or a defendant may serve a Proposal for Settlement on the opposing party. If a plaintiff’s Proposal for Settlement is rejected and the case proceeds to judgment, the plaintiff will be entitled to recover their attorney’s fees (from the date of filing the demand) if the final judgment is at least 25% greater than the proposal. Similarly, if a defendant’s Proposal for Settlement is rejected and the case proceeds to judgment, the defendant will be entitled to recover their attorney’s fees (also from the date of filing the demand) if the final judgment is at least 25% less than the proposal. This mechanism is designed to encourage early and reasonable settlement, and it can dramatically change the economics of litigation. Understanding when and how to issue a Proposal for Settlement – or how to respond to one – is an important facet of any Florida civil litigation strategy.

In many civil disputes, expert witnesses play a decisive role – whether in establishing damages, explaining industry standards, or providing technical analysis that a judge or jury cannot be expected to know on their own. Retaining the right expert early in a case provides several advantages. Among other things, it allows counsel to develop the theory of the case with the benefit of expert input, ensures that the expert has adequate time to review all relevant materials, and, in certain circumstances, acts as a powerful bargaining chip by substantiating your position in a credible way before your opposition has an opportunity to do the same. Waiting too long to retain an expert can limit your options and weaken your position at a critical stage of the litigation.

Winning a judgment is only half the battle – collecting on it is another matter entirely. Before investing significant time and resources in litigation, it is critical to assess whether the defendant has the assets or insurance coverage to satisfy a judgment. A favorable verdict means little if the defendant is insolvent, has shielded assets, or lacks the ability to pay. Early investigation into a defendant’s financial condition and collectibility helps clients make informed decisions about whether to pursue litigation, how aggressively to litigate, and whether a negotiated settlement may be the more practical path forward.