Legal Tips

"Official" Notice

Recently, our firm received a notice addressed to a client that had recently acquired title to a house. The "Final Notice of Service," which was the first such "notice" received, was to inform us that for a mere $99.85, plus $5 shipping and handling, we could get a certified copy of the deed. It was formatted to give the impression it was from a government agency. However, it was really from a private company. And a certified copy of a deed can be purchased from the public records for around $10. Of course, if you needed a certified copy of the deed, didn't have time to go to the public records, and could afford to pay for the convenience of having them get it for you, you might actually want to hire them. But for most people, there would be no reason to pay a price like that to get that publicly available document. Lots of scams operate through email, but don't assume that if it reached you by mail and appears at first glance to be from the government, then it must be a government notice, or a square deal.

Read our Article, "Small Claims in Florida: A Basic Guide"

Arbitration of Commercial Cases

The Florida Bar Journal, April 2010

To the extent the well-written article "Re-examining the Presumption in Favor of Arbitration in Complex Commercial Cases" might give the impression that arbitration is less efficient than litigation, I respectfully disagree. The primary concern seems to be that some parties will institute litigation to avoid arbitration. For many arbitrable disputes, there is no credible argument to do this. Courts should dispose of such claims quickly, with sanctions against parties bringing them frivolously. As to post-award litigation, grounds for attacks on arbitration awards are quite narrow. Indeed, the cases cited in the article show that parties bringing post-award attacks risk sanctions under Rule 11 (and presumably under F. S. §57.105).

Parties in arbitration pay for the forum, including the arbitrators. Litigants have their dispute resolution subsidized by the taxpayers, with parties only paying a very small portion of forum costs. This does not make litigation more efficient, it just allows litigants to impose on the rest of us some of the costs of their inability or unwillingness to work out their dispute voluntarily.

Parties may reduce costs of arbitration by agreeing to such things as a single arbitrator rather than three-arbitrator panel, proceeding on the papers without a hearing, routinely conducting hearings via telephone, allowing witnesses to appear by telephone or video link, etc. Final hearings in arbitrations are scheduled for a certain date — there is none of the uncertainty of attending a calendar call, not knowing whether your case will be set for trial at all, and then being set as the fourth case and not being heard, or perhaps being heard days or weeks before expected. Arbitration offers a flexibility that, with professional, skilled counsel, can greatly reduce stress and expense.

It is true that the grounds for appeal of an arbitration award are much narrower than those for a judgment. While this is a disadvantage when an arbitration panel is simply wrong, in my view, having argued cases to both juries and arbitration panels, and having served as an arbitrator, the chances of a result that is simply wrong is less in arbitration than it is with a jury. The limits on appeals are an advantage when it comes to costs and finality. Appeals are expensive and can delay the final resolution of the matter for months or years. Most appeals are unsuccessful, even when directed to judgments reached by a court in the first instance. Appeals of arbitration awards are rare.

The potential "extra" costs of arbitration referenced in the article virtually all relate not to arbitration itself, but to litigation, most of it frivolous, attempting to undermine arbitration. While there are exceptions, generally arbitration is more efficient, faster, less expensive, and less stressful than litigation, particularly compared to a jury trial. Many, and I suspect most, arbitrations proceed without contested litigation. At least some of the exceptions end in sanctions for the party who instituted the unwarranted litigation. The principal remedy for the concerns enunciated in the article is not judicial hostility to arbitration, but judicial hostility to groundless attacks on arbitrations.

(By way of full disclosure, I am qualified as an arbitrator for state court matters, and am an arbitrator for FINRA and the National Futures Association (NFA). I am not an employee of FINRA or the NFA and the views herein are strictly my own.)
Will Murphy, Hollywood

As appeared in The Florida Bar Journal, May 2010, Volume 84, No. 5

An Ounce of Prevention is Worth A Pound of Cure

One of my favorite legal cartoons shows a man in tattered clothes, seated on the sidewalk, cup in hand. His destitute state is explained by his sign: "Made a Verbal Contract."

Yes, verbal agreements are, in theory at least, usually (but not always) enforceable. But they are not ordinarily your best option. The main reason to avoid a verbal agreement, as opposed to a written agreement, is that the terms of verbal agreements are easier to forget, or to remember incorrectly. If I had a nickel for every client who came in with a tale of woe that included the client saying that the agreement was oral, and the answer to my question of why being "He was my friend, we trusted each other," I’d have . . . well, a lot of nickels.

The sad truth is that very often, the friendship is now over, and in its place is a contentious relationship that may include litigation. And it is so unnecessary. Often by the time these cases are over, I am convinced that neither my client nor the former friend was intentionally trying to deny the other the benefit of their agreement. Either they were never talking about the same thing, or they were, but at least one of them sincerely but incorrectly recalls the terms of the agreement.

Had they reduced their agreement to writing, this process would often have resulted in them realizing they did not have exactly the same thing in mind. They could then have negotiated something acceptable to each of them. At worst, they might have decided not to make the agreement at all, and at least their friendship would probably have remained intact. If they had reduced the agreement to writing, and then later one of them recalled things differently than what was actually agreed, he could simply take out his copy of the contract and be reminded that his friend remembered it right, he was mistaken, and one would expect, again, the relationship would likely have remained intact.

Often a lawyer can be very helpful in drafting a written agreement. Lawyers are trained to anticipate issues and can suggest provisions that will help clarify what is to happen if certain situations arise. They are trained to write in a way that is clear and unambiguous. (Yes, some lawyers like to show they are worth their fees by using fancy words and lots of them, when fewer and shorter ones would do just fine, but this is increasingly the exception rather than the rule.) Not paying for a lawyer to help with an important transaction is like saving money by not paying for healthy food and a gym membership or other means of getting exercise. It may not seem like such a good decision later when you are instead paying for bypass surgery.

Will Murphy is a litigator, mediator and arbitrator practicing in South Florida.