In Florida, attorney’s fees are generally recoverable by the winning party if they are allowed by agreement such as in a written contract or by law in a statute. This protocol is commonly called the American Rule because it modified its cousin, the English Rule, which awarded fees to the winner in all civil cases.
Attorney’s fee can also be awarded in a lawsuit under procedural rules, such as for the failure to make discovery. But such fees awarded in a lawsuit are limited to the specific event like failing to turn over documents and do not include all the reasonable fees incurred in the litigation that have their genesis in a contract or statute.
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*Alternative Dispute Resolution: Mediation and Arbitration
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*Venue Selection in M&A Agreements
Find out how to use freelance attorneys to manage your overflow work, handle special projects, and shore up support during peak periods. Learn about ethical considerations, fees, and much more!
Mitigating Litigation Risk at the Deal Table M&A Part II Polsinelli PC
Attorneys from Polsinelli's Corporate & Transactional, Financial & Fiduciary Litigation, and Government Investigations practices share the following topics regarding M&A:
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*Alternative Dispute Resolution: Mediation and Arbitration
*Choice of Law Provisions in M&A Agreements
*Venue Selection in M&A Agreements
Find out how to use freelance attorneys to manage your overflow work, handle special projects, and shore up support during peak periods. Learn about ethical considerations, fees, and much more!
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If you have spent less time searching for the right family lawyer than you would normally spend before buying a car or a house then you may need to review your choice once more. After all it is your future, money, property and the relationship with your children that might be affected by the wrong choice.
The questions in this letter are simple because they require only a “Yes” or “No” answer. The answers however will give the family law client an insight into the lawyer’s experience, expertise and efficiency.
LEGAL ETHICS – BEST PRACTICES 2022 - How to Avoid Malpractice & Disciplinary ...Financial Poise
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Part of the webinar series: LEGAL ETHICS – BEST PRACTICES 2022
See more at https://www.financialpoise.com/webinars/
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As the cost and duration of litigation continue to increase, clients have begun demanding fee arrangements that deliver maximum value and best mitigate risk. This webinar explores the mechanics and pros and cons of various fee arrangements, from hourly to contingent to mixtures of the two. We also discuss the increasingly popular option of third-party litigation finance.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/paying-for-litigation-hourly-contingency-third-party-financing-more-2021/
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How does mediation work
The mediation process is very flexible. Mediation can occur before a lawsuit or during the proceedings. Before and in a suit but before the case has been noticed for trial usually one side will suggest mediation. If the case has been noticed for trial, then the Court normally mandates mediation. The lawyers agree on a mediator and set the location and date for the mediation. Each lawyer then has the chance to send a confidential mediation summary to the mediator. That summary gives the mediator the perception of the case from each side. Unless told to do so the mediator will not share a summary with the other side.
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Lawsuits are not the only forum within which businesses can address their disputes. Businesses also have arbitration and direct resolution methods including mediation in addition to the court system. Therefore it is more appropriate to define these claims within the context of the more inclusive concept of business disputes as opposed to limiting them to just lawsuits.
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IBB's divorce and family lawyers have created a guide on "The Divorce Legal Process" . For more information on how to start the divorce process please visit:
https://www.ibblaw.co.uk/service/family-matrimonial
For advice on mediation during a divorce:
https://www.ibblaw.co.uk/service/family-matrimonial/divorce-mediation
Children, finances and Divorce:
https://www.ibblaw.co.uk/service/family-matrimonial/children-and-divorce
Legal Separation:
https://www.ibblaw.co.uk/service/family-matrimonial/legal-separation
Cohabitation Agreements
https://www.ibblaw.co.uk/service/family-matrimonial/cohabitation-agreements
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30 Windsor Street
Uxbridge
UB8 1AB
Telephone: 03456 381381
Defending federal overtime or Florida wage and hour claims by business lawyer...David Steinfeld, Esq.
Recent changes in the law make it more likely that your business will receive a letter from an attorney demanding money for a former employee claiming unpaid wages, overtime, or both.
Regardless of whether these claims are under federal law, Florida state law, or both your first response should be to gather all documentation on the employee like payroll records, evaluations, and job description and then to contact your business lawyer to discuss your response options.
Federal Fair Labor Standards Act
The Fair Labor Standards Act (FLSA) is a federal law that was enacted in 1938. It has naturally been updated numerous times since its inception but business owners perceive it as largely favoring employees due to its history. For example in most cases only the employee can recover attorney’s fees which are denied to employers even if they win.
The FLSA is found in Section 29 of the US Code beginning at Chapter 8 and starting with Section 201. The US Department of Labor has significant helpful resources on its website about the FLSA, its application, and documents that employers should and must maintain.
In any FLSA claim, the employee has the initial burden to prove that they performed the work. If they establish that then the employer must prove that the employee was properly paid. On that issue one of the most common mistakes that employers make is insufficiently documenting payments to employees particularly where cash payments were made.
The failure to adequately document hours worked and wages paid puts a business in a precarious position in responding to FLSA claims as its ability to meet its burden can be severely compromised. Thus a business should make sure it is always documenting the hours that each employee worked and the money or wages paid to that party. Using a payroll company to do so may be well worth the cost as it may make it easy for the company to later prove that it fully and properly paid the employee. Likewise using software to track hours and wage payments is an equally efficient and effective way for a business to put itself in a position to easily meet its burden under the FLSA.
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In Florida if your business is not in the construction industry and you have four or more regular employees you are required by law to have workers’ compensation insurance.
Whether a person working for your business qualifies as an employee for workers’ compensation purposes and whether an owner or worker qualifies for an exemption is an assessment to perform with your attorney before you receive a stop-work order or records request from the Division of Worker’s Compensation of the Department of Financial Services.
Take the opportunity to assess your coverage obligation now
This article is designed to inform business owners of the workers’ compensation insurance requirements in Florida so they can determine if they need to evaluate their business for coverage or obtain coverage. This article is not intended to analyze any particular business nor does it address the workers’ compensation claims process.
The time for any business to determine whether it is obligated to have workers’ compensation insurance in place is before the Division imposes a stop-work order, initiates an investigation, or imposes penalties on the business. Like most business matters being proactive on a legal requirement such as workers’ compensation insurance can save the business a great deal of money later.
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The Fair Labor Standards Act (FLSA) is a federal law that was enacted in 1938. It has naturally been updated numerous times since its inception but business owners perceive it as largely favoring employees due to its history. For example in most cases only the employee can recover attorney’s fees which are denied to employers even if they win.
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Reasons for Winding Up:
Insolvency: This is the most common reason, where the company cannot pay its debts. Creditors may initiate a compulsory winding up to recover their dues.
Voluntary Closure: The owners may decide to close the company due to reasons like reaching business goals, facing losses, or merging with another company.
Deadlock: If shareholders or directors cannot agree on how to run the company, a court may order a winding up.
Types of Winding Up:
Voluntary Winding Up: This is initiated by the company's shareholders through a resolution passed by a majority vote. There are two main types:
Members' Voluntary Winding Up: The company is solvent (has enough assets to pay off its debts) and shareholders will receive any remaining assets after debts are settled.
Creditors' Voluntary Winding Up: The company is insolvent and creditors will be prioritized in receiving payment from the sale of assets.
Compulsory Winding Up: This is initiated by a court order, typically at the request of creditors, government agencies, or even by the company itself if it's insolvent.
Process of Winding Up:
Appointment of Liquidator: A qualified professional is appointed to oversee the winding-up process. They are responsible for selling assets, paying off debts, and distributing any remaining funds.
Cease Trading: The company stops its regular business operations.
Notification of Creditors: Creditors are informed about the winding up and invited to submit their claims.
Sale of Assets: The company's assets are sold to generate cash to pay off creditors.
Payment of Debts: Creditors are paid according to a set order of priority, with secured creditors receiving payment before unsecured creditors.
Distribution to Shareholders: If there are any remaining funds after all debts are settled, they are distributed to shareholders according to their ownership stake.
Dissolution: Once all claims are settled and distributions made, the company is officially dissolved and removed from the business register.
Impact of Winding Up:
Employees: Employees will likely lose their jobs during the winding-up process.
Creditors: Creditors may not recover their debts in full, especially if the company is insolvent.
Shareholders: Shareholders may not receive any payout if the company's debts exceed its assets.
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How do I get back my fees and costs in a Florida lawsuit by expert business lawyer David Steinfeld.pdf
1. How can you get your attorney’s fees back in a
lawsuit
In Florida, attorney’s fees are generally recoverable by the winning party if they are allowed by
agreement such as in a written contract or by law in a statute. This protocol is commonly called the
American Rule because it modified its cousin, the English Rule, which awarded fees to the winner in
all civil cases.
Attorney’s fee can also be awarded in a lawsuit under procedural rules, such as for the failure to
make discovery. But such fees awarded in a lawsuit are limited to the specific event like failing to
turn over documents and do not include all the reasonable fees incurred in the litigation that have
their genesis in a contract or statute.
What is the difference between fees and costs
First it is useful to define the applicable terms and to distinguish between them. Fees are those
amounts paid to attorneys representing you in a lawsuit. They are generally paid pursuant to a
written retainer or engagement agreement that defines the work and the rate charged. The
arrangement can be hourly, fixed or flat, or on a contingent basis.
Costs are monies paid for events within a lawsuit such as filing fees paid to the Clerk of Court or for
deposition transcripts paid to a Court Reporter that are used at trial. Costs may be addressed in a
retainer or engagement agreement and paid from trust money but they are incurred from third
parties like a court reporter or the Clerk of Court.
The rules that regulate attorney’s fees and costs in
Florida
Attorney fee rules
The recovery of fees that are allowed in a case are governed by the Rules Regulating the Florida Bar
and by case precedent. The primary Bar Rule that impacts the reasonableness of fees claimed in a
case is Rule 4‑1.5 of the Rules Regulating the Florida Bar. That Rule addresses the factors to be
considered in determining whether fees are reasonable and describes the limits on what may be
charged.
The determination of an award of fees is within the discretion of the judge. Guiding the judge in the
review and award of claimed fees are cases like Florida Patient's Compensation Fund v. Rowe, 472
2. So.2d 1145 (Fla. 1985). Such cases define the areas of inquiry into which the court should look to
determine whether the claimed fees are reasonable.
The rules about costs
In contrast the costs that may be recovered are primarily regulated by the Statewide Uniform
Guidelines for Taxation of Costs. That list of taxable and non-taxable costs was originally adopted by
the Florida Supreme Court in 1981 and has been updated over the years. But business contracts may
and often do modify those Guidelines by adding costs that might not otherwise be recoverable or
taxable.
Some examples of costs that do not currently appear in the Guidelines or are not automatically
taxed are investigation expenses, electronic discovery costs, electronic research and telephone
charges, delivery service and courier charges, attorney and expert travel expenses, information
technology support charges, and mediation and mediator charges. Business contracts can add
these costs to the agreed recoverable costs in a case so that the party that wins the lawsuit can
recover an entitlement to more of the litigation costs than provided by the Statewide Uniform
Guidelines.
Can I get back all of my fees?
Where fees are allowed Florida law provides for only the recovery of reasonable fees. This means a
party may not automatically recover all of the fees it paid its attorney in a case and can only recover
those that are either agreed to be reasonable or that the court decides are reasonable.
What is a lodestar
The reasonableness of an attorney’s fees is determined in a process called the lodestar approach.
The lodestar method determines the reasonable hours from the work performed and multiplies that
by what the judge defines as the reasonable hourly rate. In contingent fee arrangements the judge
must also determine whether a contingency risk multiplier is appropriate and if so then by what
amount to multiply the lodestar amount.
An attorney’s hourly rate is often reflected in the retainer agreement and the work performed is
commonly defined by billing statements or invoices. If your attorney’s hourly rate is appropriate for
the area, the case, and your attorney’s experience then that hourly rate should be deemed
reasonable. Likewise if your attorney has thoroughly documented the work performed in the case
and that work is deemed appropriate in the litigation then the total fees should generally be
reasonable and awarded in the litigation.
Can a judge reduce my fees
However where a client agrees to pay an attorney at an hourly rate that is not commensurate with
the attorney’s experience or the jurisdiction then the judge may reduce the hourly rate to an amount
that is appropriate and reasonable in the judge’s discretion. Likewise the judge may reduce the
hours awarded if the judge finds that the work performed was not necessary in the litigation. The
3. judge may also not award more than the fee agreed between the attorney and client but it is not a
factor for the judge as to whether the claimed fees have been paid by that time.
The discretionary decision that a judge makes on these issues is based on and supported by expert
testimony of an attorney who was not involved in the lawsuit. The parties seeking and opposing fees
must retain those experts to provide an opinion on the hourly rate and on the reasonableness of the
work performed.
What allows for an entitlement to fees in a Florida
business lawsuit
Under the American Rule attorney’s fees are generally recoverable to a prevailing party in a case if
they are provided by a written contract or a statute. But fees may also come from proposals for
settlement that are made in a lawsuit where there is no contract or applicable statute. Examples of
those matters would be business torts that are more fully addressed in my separate article on
common legal claims in business disputes.
Fees may also be awarded during a lawsuit as a sanction imposed by the judge or after the lawsuit if
the appropriate motion was served and the judge determines that the case was frivolous. Sanctions
imposed during a case are often connected in some fashion to a failure to make or provide
discovery after being ordered to do so. Fees awarded at the conclusion of a case as a sanction are
most often based on Florida’s frivolous lawsuit statute. That statute is found at Section 57.105 of the
Florida Statutes and cases decided under the statute define a frivolous motion, pleading, or lawsuit
as one that is so significantly devoid of facts and law as to render the matter baseless and frivolous.
How do I actually get my fees back?
It is a common misconception that when one wins a trial the other side is obligated to pay the
awarded sum plus reasonable attorney’s fees and allowed costs. But just as with a final judgment
the most the court can award is an entitlement to the reasonable attorney’s fees and costs which
sums can be added to an existing judgment or awarded in a judgment of their own. As to what you
can do with a final judgment you are welcome to review my separate article on that topic.
The actual recovery of fees and costs is no difference than collecting on a final judgment. Therefore
whether a party may ultimately recover fees from a particular lawsuit and the collectability of those
fees over the life of a judgment are factors that any litigant should consider in the decision of
whether to file or pursue a lawsuit.
Written by Board Certified business lawyer David
Steinfeld
David Steinfeld is one of the few Board Certified business law experts in Florida. He has been
licensed for over 25 years. He is AV-Preeminent rated, ranked as one of the Best Lawyers in America
by U.S. News and World Report, and consistently named a Florida Super Lawyer and one of Florida’s