Your Friday Funnies, courtesy of Senate Judicial Hearings

You'll know doubt hear, if you haven't already, about the confirmation hearing for federal judicial nominees today that included some stark revelations for one. 

Sen. John Kennedy, a Republican from Louisiana, began his portion of the questioning by asking the group if any had ever tried a case to verdict. One nominee, Federal Election Commissioner Matthew Spencer Petersen, was the lone person to indicate that he hadn't. 

Sheldon White/Twitter

At this point, Sen. Kennedy directed essentially the remainder of his questioning at Petersen and his qualifications, or lack thereof, to be the next U.S. District Court judge for the District of Columbia. 

You can watch the 5-minute video clip here. And it id definitely worth the view. 

Let me be clear, I can't speak for Petersen's qualifications in his present job, and I'm sure he is a fine lawyer. He is, however, not a trial attorney (by his own admission). That is a problem because he is nominated to become a trial court judge in a very busy court. 

When asked if he knew about a motion in limine (which, for our non-lawyers, is a very common motion filed and heard at the start of trials), Petersen fumbled through with his response and admitted his "background is not in litigation." 

As a trial court judge here in Fort Lauderdale once said, "When people begin their response to a question without giving the answer, I know they don't know the answer."

After being asked again about the motion in limine, Petersen responded "I would probably not be able to give you a good definition right here at the table." 

Other essential trial qualifications that Petersen lacked: Never tried a civil or criminal case; never tried a bench trial; he hasn't taken more than a couple depositions on his own, if that; he hasn't reviewed the Federal Rules of Civil Procedure or Rules of Evidence since at least law school; and he is not aware of the Daubert standard. All of these are essential for a trial attorney and trial judge.

The exchange between Sen. Kennedy and Petersen is brutal. Thankfully Sen. Kennedy revealed these issues. No one, regardless of their political persuasion, would want a judge hearing and presiding over a trial in their case who lacked such fundamental qualifications.  

George C. Palaidis is a criminal defense and personal injury attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

Stand Your Ground Immunity Isn't as Immune as You Thought

You might determined immune from prosecution for standing your ground, but you can still be sued. That’s the message from the Florida Supreme Court last week in the newest ruling deciphering Florida’s Stand Your Ground law. In Ketan Kumar v. Nirav C. Patel, SC16-1457, the Court held that immunity granted in a criminal case based on the Stand Your Ground law does not also confer immunity in the related civil case.

The facts follow the general pattern of most in Stand Your Ground cases. Without provocation, Kumar attacked Patel at a Tampa bar. In response, Patel struck Kumar in the head with a drinking glass, which shattered on impact. Patel was charged in criminal court where he then filed a motion to dismiss based on Stand Your Ground immunity. The criminal court judge granted immunity and dismissed the case after an evidentiary hearing on the motion where witnesses testified as to what occurred.

While the criminal case was pending, Kumar filed a civil lawsuit against Patel seeking monetary damages for battery and negligence. The civil trial judge, though, decided not to follow the criminal judge’s immunity determination and ordered a separate Stand Your Ground evidentiary hearing in the civil case, resulting in Patel’s appeal. The Second District Court of Appeal, in Patel v. Kumar, held that the immunity determination by the criminal court judge conferred immunity in the civil case also, thereby preventing the civil case from proceeding.

The Supreme Court took the case up because it conflicted with the Third District Court of Appeal in Miami-Dade County, which had previously held in Professional Roofing & Sales, Inc. v. Flemmings that an immunity determination by a criminal court judge did not apply to the related civil court case, allowing the civil case to proceed and a separate hearing on immunity before the civil judge.

The Supreme Court, siding with the Third District, held that the immunity determination by a judge in one case did not automatically confer immunity in the other case. The decision, written by Justice Alan Lawson, listed many factors, of which all were largely based on ambiguities in the statute and lack of clarity from the Legislature. In analyzing the statute, the Court determined that the Legislature implied there would be separate determinations in civil and criminal courts when it allowed for an award of attorney’s fees and costs in a separate civil proceeding. The Court also noted that the 2017 amendment of the statute created different burdens of proof for determining criminal and civil immunity, again implying separate determinations without explicitly saying so.

The Court also found that the Legislature did not expressly abrogate the common-law doctrines of res judicata (claim preclusion) or collateral estoppel (issue preclusion), and thus each still applied to a determination on Stand Your Ground Immunity. To the non-legal readers, res judicata and collateral estoppel essentially stand for the premise that a claim or issue that has been decided by one court can’t be brought up again and re-litigated when certain factors are met. Those factors include the same issue or thing being litigated over, “mutuality of parties,” and a full and fair opportunity to litigate the issue in the prior proceeding.

A key element in both res judicata and collateral estoppel that is critical to a Stand Your Ground case is the element of “mutuality of parties.” Unless the same parties participated in the prior litigation that resulted in the judgment or determination, the determination isn’t binding in any other litigation. The element of “mutuality of parties” thus requires both Patel and Kumar be parties in the criminal case AND the civil case. In the criminal prosecution, though, the State of Florida, not Kumar, was the opposing party to Patel. Kumar was of course the witness/victim, but he was not an actual party to the criminal prosecution. Because of that, the criminal determination as to immunity could be re-litigated in the civil case since the element of mutuality of parties was not met.

Both the Second and Third Districts make compelling arguments in their opinions and I certainly recommend reading both. It seems clear to me, after reading the Supreme Court’s opinion, that the Court is not impressed with the Stand Your Ground law as drafted. The opinion could almost be read as a guide to the legislature in how to revise the law in order to resolve the constant issues that have arisen regarding the law due to its ambiguities.

As a result, though, a party in Florida must now file and litigate separate motions seeking immunity under the Stand Your Ground law in both the criminal and civil case, which could (and likely will) lead to opposing immunity determinations. Look for the Legislature to revisit this issue next session.  

George Palaidis is a personal injury and criminal defense attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

Court Rules Florida Uber Drivers are Contractors and Not Employees

Uber drivers in Florida are contractors and not employees, according to an appellate court ruling released today.

Florida’s Third District Court of Appeal, covering Miami-Dade and Monroe Counties, issued the ruling in the case Darrin E. McGillis v.Department of Economic Opportunity; and Rasier LLC, d/b/a UBER, 3D15-2758.

The Court heard the case on an appeal from a decision made by the Florida Department of Economic Opportunity, which also concluded that Uber drivers are not employees.

The issue arose when a Cutler Bay Uber and Lyft driver, Darrin E. McGillis, had a falling out with Uber, and the ride-sharing company terminated its relationship with him.

The Florida Department of Revenue sent McGillis notification classifying him as a former employee who could qualify for reemployment (unemployment) benefits. After an appeal was made by Uber and a hearing held, the Department of Economic Opportunity reversed the initial finding by the Department of Revenue and held that McGillis was actually an independent contractor and not entitled to reemployment assistance.

Judge Thomas Logue, writing for the Court, discussed the Department of Economic Opportunity’s ruling and the testimony provided at the hearing in coming to its opinion that Uber drivers are not employees in Florida.

In making its decision, the Court used Florida’s common law to distinguish whether there was an employee or contractor basis with Uber. First, it looked at the contract that prospective Uber drivers must agree to, which specifies that the driver is an intendent contractor and not an employee and thus not entitled to unemployment benefits. It also noted that while Uber provides additional insurance coverage for commercial operation of a vehicle, it doesn’t provide its drivers with other benefits such as medical insurance, vacation pay, or retirement pay.

The Court next considered other factors such as drivers are free to set their own schedule and area of operation, drivers own their own vehicles, and drivers are able to accept or reject requests at their will. A key fact the Court noted was that drivers are free to work for Uber’s direct competitors, such as Lyft, and switch between the two at their discretion.

The only factor that seemingly held any traction in favor of an employee relationship was that Uber had the power to deactivate a driver’s account under certain circumstances, effectively terminating the relationship between Uber and a driver. This wasn’t enough to persuade the Court, though, and it held that that factor alone doesn’t mandate that an employer/employee relationship exists.

Control, the Court reasoned, is confined by Uber to the results only and not to the means used to achieve those results.

As such, there exists a level of free agency that doesn’t exist at the employer/employee relationship, the Court affirmed the findings of the Department of Economic Opportunity that Uber drivers are contractors and not employees.

While this is the first such ruling to come out from the courts in Florida, other states such as California and Oregon have classified Uber drivers as employees under the basis that Uber couldn’t otherwise exist without its drivers. Each state has its own laws and methods for determining whether a person is an employee or contractor for state employment benefits so different results across the country can be expected. The federal government also has its own factors under the Fair Labor Standards Act, and there are already lawsuits filed by Uber drivers pending in federal courts.

As it stands today, the Third District’s ruling is controlling in Florida unless another district court of appeal rules otherwise, however based on the reasoning in the opinion I wouldn’t expect that to occur. On possible outcome, though, is that Uber could tweak its business model based on the Court’s opinion to bring it further within the safety of the contractor relationship, but that will remain to be seen.

George Palaidis is a criminal defense and civil attorney practicing in Miami, Fort Lauderdale and the South Florida region.

A contract...to save the friendship?

We’ve all been there. Someone in our circle comes up with a great idea to head to South Beach and start a night club. Everyone is on board because, well, we all saw the movie Studio 54. So we all throw in some money to buy the space and operate the club. Since we are all friends, who needs a contract? Well, a case out of the Third District Court of Appeal in Miami, Florida, gives us a good reason why you better get it all written down and be detailed about it.

In Demir v.Schollmeier, two personal friends (as you probably guessed, Demir and Schollmeier) decided to form Avrupa, LLC (a limited liability company) for the purpose of managing and operating a night club on Miami Beach called “Club Sin.” Demir’s brother also joined the company, and the three partners wrote up the “Avrupa, LLC Contribution Agreement” which outlined how much each person would contribute to the company and for what percentage. The agreement further laid out how Schollmeier could withdraw from the company and stated that the agreement is a Limited Liability Agreement under the Limited Liability Company Act of Florida.

If you didn’t know, there are different laws that lay out the formation and operation of corporations, limited liability companies, and non-profit corporations. Within those laws are prescribed the rights, responsibilities, and the protections and possible penalties for complying or failing to comply with the provisions.

Needless to say, like all great Miami Beach night club stories go, the partnership ended. Schollmeier wanted his $400,000 back, and Demir refused, so a lawsuit ensued. But Schollmeier sued Demir personally for, among other things, breaching the agreement and demanded the $400,000 in return.

Ultimately, the trial court agreed with Schollmeier at summary judgment (a proceeding when there are no facts in dispute and the judge rules for one side based on the law applied to those undisputed facts) and ordered that Demir was personally liable for the contribution made by Schollmeier.

On the appeal, the Third District disagreed and ruled that Demir wasn’t personally liable to Schollmeier for the money. While on its face the agreement didn’t specifically say it was a Limited Liability Company Operating Agreement and it wasn’t entered into at the time Avrupa was created, it was clear that the agreement was an operating agreement because it dictated the nature of the parties’ relationship and the obligations each owed to the others with regards to the company. And since an operating agreement governs the relations among the members, the managers, and the company itself, the agreement could also state whether the individual members owed any duty to the other members.

With that in mind, the Third District looked at the provisions of the agreement to determine whether or not it dictated that the members of Avrupa are directly liable to each other for breaches of the terms of the agreement. The Third District found that the agreement did not contain any language or provision indicating that any member of Avrupa would be personally liable to any other member for the company’s obligations, and that if they intended that to be so the agreement would need to be explicit as to that point.

As a result, the Third District held that Demir was not personally liable to Schollmeier for his contribution to the company. A big relief for Demir, for sure. Without this written agreement, Demir would be personally liable for almost $400,000 to Schollmeier. Or, in the alternative, even if it was their spoken intention that the parties be personally liable to each other for any breaches of the agreement, because it wasn’t included in the agreement Schollmeier is out of luck.

This case underlines the importance for having a detailed, written agreement in place in any business transaction, even if between friends. Whether in the formation and operation of a limited liability company or corporation, or a contract for the sale goods, anything can happen. Besides friendship, $400,000 could hang in the balance.

George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.

“This is confidential, right?”

Time and time again, my father is always giving me some ‘secret’ information on something and he always prefaces it, in his thick Greek accent, with, “this is attorney client confidentiality.” I gave up years ago trying to explain how it wasn’t, partly because he didn’t care and partly because I wanted to hear this morsel of information. But it comes up often in my daily interactions, either as a result of my practice or in day-to-day life, that questions about confidentiality and privilege regarding attorney-client communications are raised.

Conveniently, the Third District Court of Appeal in Miami recently released an opinion that gives a thorough explanation of confidentiality and privilege in the attorney-client realm. The case is Michelle Coffey-Garcia, et al. v. South Miami Hospital,Inc., et al.

Briefly the facts surrounding the case involve the parents of a young girl, tragically diagnosed with cerebral palsy, who filed a medical malpractice lawsuit against the hospitals, clinics, and doctors that were involved in the birth. The hospitals, clinics, and doctors questioned the mother in a deposition about the lawyers she consulted regarding the case, and she indicated that her current lawyer wasn’t her first. She then refused to answer any other questions about the prior lawyers, and cited the attorney-client privilege as her reason to refuse.

Those hospitals, clinics, and doctors asked, and the trial court ordered, that the mother answer all questions regarding when she first sought counsel, the names of the attorneys she consulted with, and the reasons why she first sought out all of the different lawyers.

On the appeal of the trial court’s order, Third District Court of Appeal gave a thorough explanation regarding confidentiality and privilege related to attorney-client communications.

To break it down, in Florida what you know as the “attorney-client privilege” or “confidentiality” actually originates from two sources: from the Florida Statutes (the laws of Florida) and from the Rules Regulating the Florida Bar (the Florida Bar licenses and regulates attorneys in the state).

Within the Florida Statutes is the Florida Evidence Code, which governs what is and isn’t evidence, and what can and cannot be allowed into a proceeding as evidence. These types of proceedings would be judicial or administrative proceedings, such as depositions, trials, traffic hearings, and the like. Section 90.502 creates what is called the “attorney-client privilege,” and that allows the client of an attorney to refuse to disclose and to prevent anyone else from disclosing the contents of the confidential communications made during the legal services.

What that means is, a client in a judicial or administrative proceeding (like a deposition in a lawsuit) can refuse to answer questions about the contents of the discussion they had with their lawyer. That client can also prevent the lawyer from disclosing those contents of the communication, as well as the lawyer’s staff or anyone the lawyer hires to help him in handling the legal services for the client (like a private investigator).

The Rules Regulating the Florida Bar, in the confidentiality sense, are a little different in that they govern disclosure outside of the judicial or administrative arena. This is termed “the rule of client-lawyer confidentiality” (found at 4-1.6), and is directed more towards the attorney since the Rules regulate lawyers. The Rule lays out when a lawyer can and cannot reveal confidential information related to representation of the client. There are only two instances when a lawyer must reveal confidential information regardless of the client’s consent: 1) when the lawyer reasonably believes it's necessary to prevent the client from committing a crime, and 2) to prevent the death or substantial bodily harm of another.

As a criminal defense attorney, I often get asked by people if my clients ever admit to having broken the law and do I have to tell the judge or police if they admitted it. Whether my clients do or don’t tell me if they’ve broken the law or committed the crime, this Rule prevents me and every other attorney from telling anyone if they admitted to breaking the law. It would be different, however, if perhaps a client told me they were on their way to a bank to rob it, and I reasonably believed the client.

Back to the “rule of client-lawyer confidentiality,” it generally applies outside of judicial or administrative proceedings. This could be during telephone conversations between opposing attorneys or when an attorney is in front of the TV news man giving an interview regarding the case.

Going back to the case before the Third District Court of Appeal, they had to decide whether the questions the hospitals, clinics, and doctors were asking would violate the attorney-client privilege during a deposition in a legal/judicial proceeding.

The Court ruled that the privilege protects the communications between the client and the lawyer, which we now know. But the Court further stated that any independent facts the client learned is not protected under the privilege.

This is quite the nuance to grapple with so let me give you an example to illustrate. Let’s say Client A sees a dog with purple hair running across the street (and let’s further pretend this purple dog has SOMETHING to do with a lawsuit). Client A then goes to her lawyer and tells the lawyer that she saw a dog with purple hair running across the street.

Now in a deposition during the lawsuit, if Client A is asked “what did you tell your attorney,” she can refuse to answer the question and invoke the attorney-client privilege. But if Client A is asked “what color hair did the dog running across the street have,” she cannot refuse to answer and invoke the attorney-client privilege because she told that to her lawyer. She learned that the dog had purple hair independently from talking with her lawyer, so there is no confidentiality to the fact that the dog had purple hair.

Now if her attorney told her that the dog is owned by the owner of the Miami Dolphins, she could refuse to answer the question “do you know who the owner of the dog is” and invoke the attorney-client privilege because she didn’t independently learn the fact outside of the confidential communication. 

Back again to the case before the Third District Court of Appeal, it was decided that questions as to the names of the attorneys and the dates the mother consulted with them was not confidential and could be asked. The reasoning, again, is that there is nothing in that information related to the contents of the communications.

The Court drew the line, however, regarding any questions asking why the mother sought out legal counsel and any subsequent lawyers. The reasoning here is that the reasons for seeking out an attorney and subsequent attorneys will lead to questions as to what was told to you by the first attorney that caused you to go to the second attorney, and third. Was some specific piece of advice given that triggered you to see another attorney? This line of questioning results in the contents of the confidential communications being revealed, and that would violate a client’s “attorney-client privilege.”

As you see, protections have been put in place to protect you, the client, with regards as to your communications with your lawyer. Those secret morsels of information my father would give me (assuming he’s my client and I’m his attorney, which he always does) wouldn’t necessarily invoke the “attorney-client privilege” in some judicial proceeding because he got it from someone or somewhere else. But I would be prevented by the client-attorney confidentiality rule of the Rules Regulating the Florida Bar from revealing those secret morsels of information he gave me to anyone else (like my mom, perhaps?) without his informed consent.  

And so his secrets are safe with me, just as with any of my actual clients, whether in business or in the criminal court setting.

George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.