Balance = Work/Life + MotionDrafting.com

At a time when attorneys are sometimes desperate for a job, any job – let alone a job that provides satisfaction – worrying about [or even attaining] work-life balance may seem a luxury.  Most legal employment opportunities fail to realistically lend a balance of work obligations with rewarding personal and family time because a traditional legal career offers the greatest rewards to those attorneys who live, breathe, and embody the concept of first-in and last out.  However, such a life-outlook can prove detrimental in the long-term.   

As an attorney, I understand the time and energy necessary to provide effective services; however, as a husband and a father, I also understand the sacrifices necessary to maintain an effective home life.  Reflecting on the past eight years despite the implementation of even the most seemingly efficient time-management techniques in attempting to obtain balance between work and home, I have come to find that no magical equation exists as such is unique to each attorney. 

The only truism is that a happy home life fuels a better work life.  Many colleagues have complained [as I used to do] that they often have “no time” to do anything more than what work demands.  Work for attorneys necessarily precipitates burdensome efforts resulting in an endless cycle of self-examination and worry that merely revolves around anew with the next client.  As a result, attorneys should act in their best interest but many times the circumstances disallow such a path.  Obviously, we all wish more time was available in the day but just as “justice” is based on perspective, so too, is work-life balance. 

Finding work-life balance is less about the result and more about control of the process: (1) questioning your priorities and (2) honestly ascertaining what matters in your life.  Accordingly, we strive to provide work-life balance for attorneys so you can prioritize what matters most to you.  Whether a solo, small firm, or large firm litigator: why not see your practice grow from a grinding job into a successful practice? 

Solo and small firm practitioners personify the workaholic practice.  Large firm practitioners must adhere to commonplace requirements of ever increasing billable hours.  In addition, all attorneys in private practice are expected or required to be “rainmakers” – ones to bring new clients into the firm or promote continued business from existing clients.  Consequently, work-life balance is an ever-elusive myth unless you have a concrete plan to create more time at work.  To achieve your goal[s], how about efficiently expanding your team to provide professional, ethical, and quality, superior services: enter MotionDrafting.com.

Whether solo, small, or large firm practitioners, no one can work 24 hours a day, 365 days a years for years on end.  However, as a busy litigator you probably spend less time in your office researching and drafting quality work-product than you do with judges, clients, and other attorneys.  Wouldn’t you love to (A) be more organized; (B) properly prepare for meetings, hearings, depositions, or trial; (C) submit thoroughly researched and meticulously drafted documents to the court and opposing counsel; and (D) block time for “life-things” that are most significant? 

Work-life balance is an abstract fluid concept that endlessly ebbs and flows as your life constantly changes.  Amidst the hustle and bustle of your daily attorney grind, we can relieve the stress associated with your legal practice to not only increase your productivity but also your happiness.  Nearly two years removed from an unknown foreign world, we totally reframed what work-life balance was for us, personally and professionally; thus, understanding that work-life balance is real and possible.  To that end, MotionDrafting.com maintains its mission: to provide you with control over your work-life balance. 

The Real “Rap Sheet” Under the Florida Criminal Punishment Code: A Practical Guide to Understanding a Score Sheet (Part I)

If you are charged with a felony offense in Florida, the Criminal Punishment Code requires that you be sentenced in accordance with a “score sheet.” Essentially, the score sheet contains the following information: 1) a criminal history of any criminal act, for which the Defendant has been convicted; 2) a list of the current charges pending against the defendant; and 3) any cases, for which Defendant was serving a term of probation or community control, that he or she is now accused of violating.

Understanding what goes on a score sheet is extremely important because it determines the minimum sentence that the defendant faces, and dictates whether the court MUST sentence him or her to prison time. If the Defendant’s total point value (when adding up the primary, secondary, and prior history sections) exceeds forty-four (44) points, then the Court MUST sentence the Defendant to prison, absent some viable reason for a downward departure. If the Defendant scores less than forty-four (44) points the court may sentence the Defendant to probation, community control, jail time, or some combination of all three.

This blog post is meant to serve as a practical guide to understanding, and interpreting the score sheet. It should be noted that probation violations and their impact on the score sheet will not be addressed in this post, but will be addressed in a Part Two of this blog. It should also be noted that this post will make more sense if you have a score sheet in front of you. The front page of a score sheet can be found by clicking:

http://4.bp.blogspot.com/-2hraEE9Jl0M/UNxhiIVrxoI/AAAAAAAAAEM/92FrBRxRgK4/s1600/cpc_manual+25A.png, and the last page of the score sheet can be found by clicking:

http://1.bp.blogspot.com/-0SrHJeFCeVQ/UNxhito3ZQI/AAAAAAAAAEU/ jBPDiMbu-gU/s1600/cpc_manual+26A.png.

Now that you have your score sheet in front of you, let’s get down to the basics:

Who does the score sheet apply to? As stated before, any person charged with a criminal felony offense in Florida must have a score sheet. Generally, the prosecutor on the case is charged with creating a score sheet and disclosing it in discovery. It is important to remember that misdemeanor offenses, when not charged in conjunction with a felony offense, are not governed by a score sheet; the sentence that the defendant will receive for a misdemeanor is completely within the discretion of the court, and the State Attorney.

How does the prior criminal history of my client play into the sheet? Every offense, including misdemeanor charges, have been assigned a “level” by the legislature. The level of the offense directly correlates with how “serious” the legislature believes the crime to be. The higher the level of the offense, the more “points” will be assessed to the Defendant. For example: all misdemeanor crimes are assigned “no level” and have a point value of “. 2”. On the other hand, Aggravated Battery is a level seven, which receives a higher point value (dependent on the category of offense, discussed below). You can determine the point value of any offense in the criminal punishment code by clicking the link: http://www.dc.state.fl.us/pub/sen_cpcm/cpc_manual.pdf.

In order to complete the score sheet the prosecutor will need to list every offense for which the defendant has been “convicted”, the level of the offense, and the number of points connected to the offense on the score sheet. The prior criminal history goes under the section, which is labeled “prior record.” It is important to remember that “conviction” means a withhold of adjudication or an adjudication, and also includes cases for which the defendant has pled “no contest” rather than guilty. On the other hand, cases for which the Defendant was arrested, but was never convicted are NOT included on the score sheet.

How do you determine the “primary” offense? The “primary offense” is the pending charge against the Defendant with the highest level. No matter how many charges the Defendant has, only one can be listed as the primary offense. For example, if the Defendant was charged with three counts: burglary, possession of cocaine, and misdemeanor battery; the burglary would be the primary offense because it is a level seven (7). The possession of cocaine is a level (3), which is lower than seven, and the misdemeanor adds only .2, again lower than seven.

How do you determine the “secondary” offense? The “secondary offense(s)” is/are any offenses that are not the primary offense, and which are pending before the court. So in our first example above, Defendant is charged with Burglary, possession of cocaine, and a misdemeanor. We know the burglary is the primary offense, but what happens to the other two charges? These two remaining charges become the “secondary offense(s)”. It should be noted that if the defendant is charged with multiple counts of the same offense, for example three burglary charges you pick one and make it the primary, the remaining offenses are secondary (even though they are all the same offense level). The same concept applies where the Defendant is charged with multiple offenses, and two of the offense or more are the same level; for example possession of cocaine and felony DUI are both level three offenses – either can be the primary offense it doesn’t matter.

Why does it matter which offense is “primary” or “secondary”? It may seem immaterial which offense is primary, or secondary, or listed as a prior for that matter, but if you look at the score sheet itself, the primary, secondary, and prior offense categories assign a different point value to each offense level. For example, a level seven (7) offense, when listed as the “primary offense” scores fifty-six (56) points, when scored as a “secondary offense” it scores twenty-eight (28) points, and when scored as a prior it scores fourteen (14) points. You can see why it is important to assure that the correct offenses are listed in each category. In our example above with the burglary, cocaine, and misdemeanor the correct score (assuming that the Defendant has no priors) would be 58.6 points. This would equate to minimum sentence of 37.6 months in Florida State Prison [58.6 minus 28 multiplied by .75 as reflected on the second page of the score sheet]. If the score sheet was incorrectly calculated and the primary offense was listed as possession of cocaine (a level three offense) the total number of points would be 44.2 which would equal a minimum sentence of 12.15 months in Florida State Prison [44.2 minus 28 multiplied by .75 as reflected on the second page of the score sheet].

Practical Take Away: As an attorney you may have the urge to simply “trust” that the score sheet has been completed correctly. However, it is critical that you take time to scrutinize the offenses on the page, the level assigned to each, the point value subsequently added, and whether the offenses are in the correct category. Even a very minor mistake can be the difference between a discretionary sentence (meaning a score of less than forty-four (44)) or a prison sentence (meaning a score of more than forty- four (44)) for the client. Be diligent.

The Character Evidence Conundrum

unKAP-ed Legal, PLLC was recently commissioned to research character evidence in a trial with a plethora of interesting character evidence issues. The experience inspired this post, which will hopefully serve as a very quick, admittedly cursory brush up on Federal Rule of Evidence 404 – character evidence.

Like most attorneys, counsel in our case sought to introduce damning evidence of the opposing parties bad character in order to sway the jury and place a bitter taste in their mouth (likely with secret hopes of coloring the jury’s view of the evidence). Unfortunately (or fortunately) the rules prevent this exact result. Although attorneys normally think of character evidence as inadmissible, the real question to ask to determine whether your character evidence is admissible or inadmissible is: what is the purpose of the evidence? Character evidence, offered to showaction in conformity therewith, otherwise known as propensity, is inadmissible. See Fed. R. Evid. 404(a)(1). Simply put, if you plan to offer evidence to show that the witness has done some act now, simply because the witness acted a certain way on a past occasion, your evidence is not admissible.

If you find yourself in this precarious position, think about what other purpose the evidence possibly serves if introduced during the trial. If the evidence is relevant to show motive, intent, opportunity, plan or scheme, modus operandi, lack of mistake, or any other purpose apart from propensity, your evidence is likely admissible. See Fed. R. Evid. 404(b). Usually, a colorable argument can be made that your purpose in introducing the evidence is something apart from showing propensity.

Remember that special rules apply in a criminal case where self-defense is alleged under Rule 404(a)(2) as limited in form by Rule 405. Also note that the character trait of truthfulness or untruthfulness is always a relevant topic of cross-examination subject to limitation by Rules 607-610, of the Federal Rules of Evidence. Finally, keep in mind that Rule 403, Federal Rules of Evidence, always applies, and can exclude otherwise admissible evidence if the probative value of the evidence is substantially outweighed by the risk of unfair prejudice, issue confusion, the jury being misled, undue delay, waste of time, or needless presentation of cumulative evidence.

The long and short is: When seeking to introduce character evidence remember to focus on the why

Can the Prosecution Withdraw a Plea Offer After your Client has Accepted?

Criminal cases general resolve in one of two ways: plea bargain, or trial. Although all criminal defendants have a right to have their case decided by a jury of their peers, in practice, a vast majority of criminal cases resolve with a plea. A plea bargain can be “open” or “negotiated.” The former meaning that the Defendant enters a plea of “no contest” or “guilty,” and then asks the Court to determine what sentence he (or she) will receive. The latter involves negotiations between the Defendant’s attorney and the prosecution.

This blog post focuses on negotiated plea bargains generally, and specifically ask the question: can a prosecutor offer a plea to the defendant or his counsel, but then withdraw that offer prior to ratification by the court and formal disposition. The short answer is yes. If the Court has not accepted the terms of the agreement, the prosecution can in essence change it’s mind and revoke the offer at any time – even if the Defendant has already expressed his intention to accept the terms of the agreement.

Rule 3.172 authorizes the prosecution to withdraw a plea offer at any time before it is formally accepted by the trial judge. See Fla. R. Crim. P. 3.172(g). Arguably then, the prosecution could revoke a plea offer the morning of the plea conference or while standing at the podium waiting for the court to call the case. See also Shields v. State, 374 A. 2d 816 (Del. 1977) (finding that prosecutor could withdraw a plea offer, which Defendant had stated his intention to accept, weeks after the offer had been made and “accepted,” but prior to formal acceptance by the Court);State v. Reasbeck, 359 So. 2d 564 (Fla. 4th DCA 1978) (finding that prosecution could withdraw plea offer after Defendant had indicated his acceptance, but prior to formal ratification from the court).

The most common defense objections to a prosecutor withdrawing a plea previously offered sound in theories of contracts and ethics. As to the argument that the offer, once accepted by a Defendant is a binding contract, Courts have consistently held that an offer that has not yet been ratified by the court is merely “illusory” and technically cannot be accepted. In essence, the “offer” could not possibly be accepted by a Defendant, unless and until it is ratified by the court; accordingly it is really no offer at all. See Reasbeck, 359 So. 2d at 565; U.S. v. Thalman, 457 F. Supp. 307 (E.D. Wisc. 1978) (recognizing that to impart contract law into the world of criminal procedure would be an over simplification); State v. Collins, 265 S.E. 2d 172 (NC 1980) (emphasizing that there are more than two parties to the plea bargaining process, and accordingly the “contract” between the state and defendant is not really a contract at all).

As to the ethics argument, prosecutors have an overarching obligation to act in the interest of justice. See Florida Bar Rule 4-3.8 (“A prosecutor has a role of a minister of justice, not just an advocate.”). Clearly withdrawing a plea offer, after acceptance with an ill intent, vindictive motive, or otherwise unjust intention would be a violation of the Prosecutor’s ethical obligations and a potential bar complaint may be an appropriate remedy.

However, so long as the actions of the prosecution are in the interest of justice, then they may lawfully, and ethically withdraw a plea bargain at any time before the court formally accepts the negotiation.

What is the practical take away? If the prosecution offers your client a bargain, and your client intends to accept – do it. Don’t waste too much time or dawdle in setting the matter down for a change of plea in front of the court. Remember he (or she) who giveth, can also taketh away.

Motion for Leave to Amend – Can you; should you; will you?

It happens to the best of attorneys – the moment you realize that you have filed a Complaint or an Answer and you’ve left out a cause of action or relevant affirmative defense. This is critically important, especially if you've left out a defense – under Rule 1.140, Florida Rules of Civil Procedure, most defenses, which are not asserted in the responsive pleading, are deemed to have been waived. Luckily, Rule 1.190 allows for a party to amend a pleading with or without leave (depending on the timing of the motion).

Under 1.190, if you have filed a Complaint, you can amend it without leave of court at any time before the responsive pleading has been served. If you have filed a responsive pleading, you may amend it without leave of court within 20 days of its filing (so long as the case has not been set down on the trial calendar). But what happens if you don't realize your omission, until after these deadlines have past?

If the deadlines enumerated above have past, hope is not lost. You can still potentially amend your complaint or answer, but you'll need to file a "motion for leave to amend" with the trial court, or obtain "consent" from the opposing party (good luck). See Fla. R. Civ. P. 1.190(a).

The rule directs the court to grant leave to amend "freely" when "justice so requires." In addition to the rule itself, a large body of case law has also developed in this area, which directs the Court to consider three factors in determining whether to grant leave to amend: (1) whether the opposing party will be prejudiced if the amendment is permitted; (2) whether the party seeking leave to amend is abusing the process or privilege; and (3) whether the amendment is futile. See Life Gen. Sec. Ins. Co. v. Horal, 667 So. 2d 967 (Fla. 4th DCA 2001).

The timing of a motion for leave is critical: Courts are directed to be "liberal in permitting" a motion for leave to amend, made at or before a motion for summary judgment. See Saidi v. Saqr, 207 So. 3d 991 (Fla. 5th DCA 2016); Dimick v. Ray, 774 So. 2d 830 (Fla. 4th DCA 2000); Thompson v. Bank of New York, 862 So. 2d 768 (Fla. 4th DCA 2003); Cobbum v. Citi Mortgage, Inc., 158 So. 3d 755 (Fla. 2d DCA 2015). Accordingly, motions for leave to amend at this stage in litigation will almost always be granted by the court in its discretion.

The near certainty of the permissibility of a Motion for Leave at or before summary judgment brings up a question of professional responsibility – what if you are the opposing party to a motion to amend at this stage? Should you consent to the amendment? Do you object and force a motion, and hearing?

Many attorneys feel that agreeing to any motion in civil litigation, even a clearly permissible one, constitutes a failure to "zealously advocate" for their client. It is important to remember that you also have a duty of candor to the tribunal; when case law clearly provides you with no legal basis to object, objecting for the sake of objection can leave you in bad regard with the Court, opposing counsel, and even potentially your client. The point is: consider whether your legal position in objecting is sound before you object merely for the joy of creating contempt in your adversary.

The practice take away: If you've left out a critical cause of action, or affirmative defense-evaluate your case status, and consider making a motion for leave to amend. On the other hand, if you are faced with a motion for leave, or a request for "consent" to amend, remember that case law largely favors amendments made at or before summary judgment and object (or refrain from
objecting) accordingly.

Content Conundrum: Why a Petition for Belated Appeal is not an Appellate Brief

Although we all believe that we can wear any legal hat, sometimes it can be easy to forget that the world of appeals is miles away from the trial realm. What I mean to say is that maybe you should consider hiring an appellate attorney for your unique DCA issues – instead of winging it. Although that may work just fine on your feet in trial, it will almost surely cost you in the DCA.

However, if you feel that you can tackle any appellate issue, this blog post will (hopefully) serve as a brief reiteration of the difference between a petition for belated appeal, under Fla. R. App. P. 9.141(c) and an appellate brief, filed after timely notice of appeal. It is intended to aid you in determining whether you can file a petition for belated appeal, and if so, what to include in the petition.

First: start with the rule! The rules of appellate procedure contain a specific rule for individuals who are seeking a belated appeal. All the requirements for a belated appeal, the petition for belated appeal, and the contents of the petition for belated appeal are contained in Rule 9.141, subsection (c). The first thing to do is: read the rule.

Now that you have read the rule. Here are a list of a few common mistakes that I have encountered when dealing with petitions for belated appeal:

First major blunder to avoid: turning your petition for belated appeal into an appellate brief. Although you may have the natural urge to state your grounds for appeal in the petition for belated appeal (hereinafter, "PBA") – don’t.

Rule 9.141(c) specifically provides six items that must be included in your PBA. These items can be found in subsection (c)(4) of 9.141. Stick to these requisite elements.

You can stick to these elements with confidence because section (c)(6) of 9.141 specifically provides: if the court is satisfied that grounds for belated appeal exist, it will treat your PBA as a timely notice of appeal.

Accordingly, you will have the opportunity to submit a full appellate brief in accordance with Rule 9.210, Florida Rules of Appellate Procedure.

In addition, the case law is clear that "[a] criminal defendant seeking a belated appeal need not demonstrate the possibility of success on the merits of the appeal." See Orr v. State, 647 So. 2d 877, 878 (Fla. 3d DCA 1996). "Indeed, a criminal defendant need not even set forth in the motion the basis for the appeal sought in his [PBA]." Id. (emphasis added). So for starters, do not turn your PBA into a brief; there will be plenty of time to argue your merits once you are actually granted an avenue for appellate review.

The next blunder to avoid is filing an untimely PBA. Rule 9.141(c) governs the filing of a petition for belated appeal and has specific time limitations.

Failing to file these time limitations will result in dismissal of your petition. [if you are outside the time limitations for filing a PBA, take a look at our blog on habeas corpus as a possible solution].

Rule 9.141 provides that you must file the petition within not more than two (2) years after the time for filing a notice of appeal has expired. There is an exception however: if the petition states specific factual circumstances that the petitioner was either: (1) unaware that no notice of appeal had been filed; (2) not advised of his right to appeal; or (3) was otherwise prevented from filing an appeal based on circumstances outside of the petitioner's control and the petitioner could not have ascertained such facts with the exercise of due diligence – the petition may be filed within four (4) years.

In any PBA this is the "meat" of your argument and petition. This should make up the majority of the content of the PBA (not the grounds for appellate review, as discussed above).

Third blunder to avoid: failing to state the facts on which the motion is based under oath. The rule specifically requires that the facts on which the PBA is based must be under oath. The rule provides that the petitioner, or the attorney for the petitioner must attest to the factual basis asserted in the PBA. In the case of a petition filed in the four (4) year limitation window, the facts furnishing grounds for the PBA must attested to by the petitioner under oath.

Another tip that might be helpful as you research for your PBA is noting that that Rule 9.141(c) used to be 9.140(j) – if you are researching using the rule number, try searching for the previous location instead; you'll find a plethora of case law there. The case law under the prior version of the rule will still bind the court, as the notes of 9.141(c) specifically state that the location change from 9.140(j) was not meant to be substantive, but instead, was a change of convenience and for ease of reading.

The long and short: if you take on an appellate issue that you are unfamiliar with remember to start with the rule, do due diligence in researching applicable case law, and when all else fails: consult with an appellate attorney! [Did I mention we handle appeals?]

K-9 Sweeps During Lawful Traffic Stops: How Long of a detention is too long?

Since the United States Supreme Court rule in U.S. v. Sharpe, there has been an abundance of case law relating to the length a suspect may be detained during a traffic stop. 470 U.S. 675 (1985). Many, if not all of the cases analyzing this question are in the context of a lawful traffic stop, where the police continue to detain a suspect in order to call a canine to "sweep" the vehicle. Most cases held that so long as the "traffic stop is not unnecessarily prolonged in order to permit a drug sniff" then the search is permissible after a lawful traffic stop. See State v. Brown, (Fla. 5th DCA 1997). This unnecessarily prolonged" language created a good deal of ambiguity as to how long a stop could be extended in order to wait for and conduct a k-9 sniff for contraband after a lawful traffic stop. The court frequently stated that there is no specific number of minutes that must pass to render the duration of the stop unreasonable, but instead, the determination should be made on a case by case basis. See Illinois v. Caballes, 543 U.S. 405 (2005); Williams v. State, 869 So. 2d 750 (Fla. 5th DCA 2004) (explaining that the suspect may be detained no longer than the time required to issue a citation, make a license, tag, insurance, and registration check, so long as that information can be obtained within a reasonable time); Sanchez v. State, 847 So. 2d 1043 (Fla. 4th DCA 2003) (finding a twenty to thirty minute detention reasonable, because the officer was attending to license, registration, and warrants checks). But see Whitfield v. State, 33 So. 3d 787 (Fla. 5th DCA 2010) (finding that an eleven minute detention was unreasonable, because the attendant searches to the lawful stop should have been completed when the drug sniff was performed). Accordingly, law enforcement frequently called for a canine team during a lawful stop, and detained drivers for a period of time to await the arrival of the canine and conduct a drug sweep.

However, in Rodriguez v. U.S., the United States Supreme Court clarified the law regarding extended detention of a lawfully stopped vehicle for the purpose of conducting a drug sweep. 135 S. Ct. 1609 (2015).

In Rodriguez the suspect was lawfully stopped for driving on the shoulder of the highway, a violation of the traffic code. Id. at 1610. The officer ran his license, and issued him a warning, and then asked permission to conduct a drug sweep of the vehicle. Id. The driver declined and the officer called a drug dog who arrived and conducted a sweep of the vehicle Id. The Court held that although only seven (7) to eight (8) minutes passed from the issuance of the citation to the dog’s alert, the short detention was illegal, and unreasonable under the Fourth Amendment. Id. at 1610-11.

The Rodriguez court clarified that "[t]he critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop." Id. at 1612. Relying on Rodriguez, a number of Florida Courts have ruled that even short extensions of time in a lawful traffic stop are unreasonable. See Underhill v. State, 197 So. 3d 90 (Fla. 4th DCA 2016) (finding it unreasonable for the detective to run a k-9 sweep for drugs around a vehicle, while he ran a license and registration check, because the check came back clean in the middle of the sweep, and accordingly the sweep extended the time of the stop); Vangansbeke v. State, — So. 3d — (Fla. 5th DCA 2017) (suppressing evidence based on length of detention where drug dog arrived nineteen minutes into the stop, and the officer was in the middle of writing the citation when the dog arrived); Jones v. State, 187 So. 3d 346 (Fla. 4th DCA 2016) (finding a Fourth Amendment violation where the officer conducted a drug sweep prior to running any license, registration, or warrants checks, and almost immediately upon stopping the defendant, because he abandonedthe purpose of the stop to conduct a drug investigation, which extended the duration of the stop).

It is clear that based on the authority of Rodriguez: if the officer extends the duration of the traffic stop, even for a minute, the detention is unlawful and any evidence obtained as a result of the detention must be suppressed. Moving forward, Counsel arguing unreasonable detention cases should be sure to cite to Rodriguez and the litany of Florida cases that have since followed. The focus of the inquiry in these arguments should be whether the sniff extended the stop, rather than whether the citation had been issued, the number of minutes that passed from the stop to the sniff, or even whether the necessary checks had been completed.

The long and short: Rodriguez seemingly clarifies the law in the area of traffic stops involving a k-9 sweep, and arguably gives more credence to the citizen's right to be free from unreasonable search and seizure under the Fourth Amendment.

Settle Your Civil Claim; or Else. Threats of Criminal Prosecution to Gain Advantage in Civil Proceedings.

In the past few weeks unKAP-ed Legal, PLLC has come across the issue of whether a civil attorney can "threaten" criminal prosecution in a demand letter or civil litigation. The answer is not as clear cut as one might think, and largely depends on the purpose of the threat.

The American Bar Association (hereinafter, "ABA") "Model Code of Professional Responsibility" originally contained an express prohibition on making threats of criminal prosecution in civil litigation. Former DR 7-105 stated: "A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to gain advantage in a civil matter. When the model code was withdrawn and replaced in 1983, the new "Model Rules of Professional Conduct" dropped the express prohibition contained in DR 7-105. However, the notes of the Model Rules of Professional Conduct indicated that its drafters believed the express prohibition to be redundant, as Model rules 8.4 (Misconduct); 4.4 (Respect for Rights of Third Parties); and 3.1 (Meritorious Claims and Contentions) already provided adequate limitations that would encompass criminal threats of prosecution in civil proceedings.

Since the adoption of the Model Code of Professional Conduct, and the adoption of State specific code provisions which contain express prohibitions or follow a similar path from the Model Rules, Courts have dealt numerous times with civil litigants who threaten criminal prosecution during the course of their civil case. The courts dealing with the issue have generally focused on the intent of the attorney in making the threat as well as whether the threat was solely for the purpose of obtaining advantage in the litigation. These terms are obviously difficult to define, and have sparked substantial litigation regarding the ethical obligations of attorneys in civil proceedings.

In Florida, unlike the Model Code formulated by the ABA, there is an express prohibition on using threats of criminal prosecution to gain advantage in a civil proceeding. Rule 4.-3.4 of the Florida Rules of Professional Conduct provides: A lawyer shall not . . . present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." Interestingly, in the next line, the same rule prohibits: "present[ing], participat[ing] in presenting, or threaten[ing] to present disciplinary charges under these rules solely to obtain an advantage in a civil matter.

Pursuant to the ethical rules in Florida a civil attorney may arguably threaten criminal prosecution in their civil case, so long as the purpose of that threat is not to gain advantage in the proceeding. Arguably, the safe and best practice would be to avoid these types of tactics all together, as proving intent and purpose can be difficult – especially in the context of a written threat that does not have the benefit of tone, context, or other social cues that could help determine the purpose or intent behind the threat. Attorney's faced with an opposing counsel that arguably "threatens" criminal prosecution should be wary however of their own ethical obligation under Florida Rule 4-3.4 to avoid threatening disciplinary charges in response to the threat of criminal prosecution. Again, the "threat" will have to be proven to have been made solely for the purpose of gaining advantage, and as noted, intention is a difficult concept to ascertain after the fact. The attorney threatening to report misconduct should be cautious of their own words, tone, and purpose in their threat to report.

Long and short: save yourself the headache- avoid threatening criminal prosecution in a civil dispute. Ultimately these threats rarely "scare" a seasoned opposing counsel into a settlement, and more times than not such a threat would be construed to have no other purpose apart from attempting to gain advantage in the corresponding civil matter.

What Constitutes Fraud on the Court?

By the number of motions to dismiss, filed under this guise of “fraud on the court”, you may be shocked to learn that fraud on the court is rare, and motions alleging fraud should be granted sparingly in only the most egregious of circumstances. This post discusses the procedure for the life of a motion to dismiss based on fraud, and also some key requirements for the success, or failure, of this type of motion.

As to the procedure:

(1) File the Motion: Obviously the motion breathes first life to this issue once composed and filed. However, after that there has been some confusion as to “what happens next”? (2) Set the Motion for an Evidentiary Hearing: Numerous cases have reversed an order of dismissal based on fraud where the trial court below failed to hold an evidentiary hearing or the record was otherwise insufficient. See Health First, Inc. v. Hynes, 114 So. 3d 995, 998 (Fla. 5th DCA 2012) (“Given the gravity of the conclusions in the order [of dismissal based on fraud] there will have to be an evidentiary hearing to sort out whether fraud or similar misconduct occurred.”); In re M.W., 181 So. 3d 1263, 1267 (Fla. 2d DCA 2015) (explaining that trial counsel’s representations to the court were “insufficient” to sustain a fraud on the court dismissal); Stephens v. Bay Med. Center, 839 So. 2d 858, 858 (Fla. 1st DCA 2003) (“The failure to allow plaintiff an opportunity to present additional evidence [at an evidentiary hearing] was error.”);Laussermair v. Laussermair, 55 So. 3d 705, 706-707 (Fla. 4th DCA 2011) (reversing an order dismissing a case for fraud where the trial court relied on deposition testimony, but no live testimony; finding that evidence short of in person testimony was insufficient to sustain the heavy burden of the defendant in proving fraud). But see Obregon v. Rosana Corp., 232 So. 3d 1100 (Fla. 3d DCA 2017) (finding that the issue of entitlement to an evidentiary hearing prior to dismissal for fraud on the court was not preserved for appellate review, where neither party requested an evidentiary hearing in the trial court below). Based on this authority it appears that the trial court must hold an evidentiary hearing, but that a party’s failure to request the same, and object to a denial of that right, could be considered a waiver of the issue on appeal.

(3) Burden of Proof: The party seeking dismissal has the burden of proving fraud by “clear and convincing evidence.” See Gilbert v. Eckerd Corp. of Fla., Inc., 34 So. 3d 773, 776 (Fla. 4th DCA 2010) (“It is the moving party’s burden to establish by clear and convincing evidence that the non- moving party has engaged in fraudulent conduct warranting dismissal.”); Suarez v. Benihana Nat’l of Fla. Corp., 88 So. 3d 349 (Fla. 3d DCA 2012) (explaining that the moving party bears the burden of proving fraud by clear and convincing evidence). Some authority goes so far as to suggest that this burden necessarily requires that the defendant (or party seeking dismissal) produce in person testimony in support of their claims; not just sworn deposition or interrogatory responses. See Laussermair, 55 So. 3d at 707. Accordingly, in the abundance of caution, the moving party should subpoena witnesses to testify at the hearing, in addition to any depositions, interrogatories, or certified medical records on which the moving party intends to rely to prove fraud.

(4) Written Order: You’ve had your hearing; now what? Can the court issue a standard short order? Is it permissible for the moving party to submit an agreed order? The answer is probably no to both questions. In Chacha v. Transport USA, Inc., the court granted a motion to dismiss based on fraud and made a very cursory written finding that clear and convincing evidence of fraud supported dismissal. 78 So. 3d 727, 730 (Fla. 4th DCA 2012). The appellate court reversed and remanded, for the lower court to make “express written findings sufficient to assist [the appellate court] in determining whether the trial court properly considered the proper mix of factors and carefully balanced the policy favoring adjudication on the merits with the competing policy to maintain the integrity of the judicial system.” Id. at 731. In finding remand appropriate, the appellate court stated, “We do not think it too great a task to require the trial court to make a written finding of the essential facts which supports the imposition of the most severe sanction [of dismissal]” and held that “an order granting a dismissal or default for fraud on the court must include express written findings demonstrating that the trial court has carefully balanced the equities and supporting the conclusion that the moving party has proven, clearly and convincingly, that the non-moving party implemented a deliberate scheme calculated to subvert the judicial process.” Id. It appears that the trial court must compose a written order, granting the motion, which specifically points to record evidence in support of a finding of fraud. The non-moving party should object to anything less. The moving party would likely also be wise to object to less for purposes of the appellate record.

Having established the process, what is the standard for dismissal? What conduct will support the most severe sanction of dismissal with prejudice of the Plaintiff’s cause of action? The answer is honestly unclear.

Although the standard itself is fairly straightforward, and is repeatedly written or quoted, the type of conduct sufficient to meet its dictates can be described as “all over the map”. In its most basic form the standard for dismissal is as follows: “The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998). In reviewing the case under this standard, the “court should consider a proper mix of factors and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system.” Id. “Because dismissal sounds the death knell of the lawsuit, courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.” Id. Seems simple, right? Wrong.

Subsequent cases have further defined what constitutes “fraud” explaining that: “poor recollection, dissemblance, even lying, can be well managed through cross-examination” and does not amount to “fraud” that would support dismissal. See Bologna v. Schlanger, 995 So. 2d 526, 528 (Fla. 5th DCA 2008). See also JVA Enterprises, I, LLC v. Prentice, 48 So. 4d 109, 114 (Fla. 4th DCA 2010) (explaining that “fraud” that supports dismissal of an action must be more than poor recollection, dissemblance, or even lying, instead the conduct must be a scheme purposefully hatched to subvert the truth seeking function of the judicial system); Gehrmann v. Cty of Orlando, 962 So. 2d 1059, 1061 (Fla. 5th DCA 2007) (finding that fraud requires a clear and convincing showing that the non-moving party “committed knowing deception intended to prevent the defense from discovery essential to defending the claim). Unfortunately this new “definition” of “fraud” creates as many questions as it answers. If a blatant lie won’t amount to fraud, then what conduct does equate with the standard?

In interpreting this standard, courts have been understandably inconsistent; likely because all cases subject to dismissal for fraud must be carefully examined based on their specific facts. For instance, in Cox (which is one of the leading cases on fraud on the court) the Appellate court affirmed dismissal with prejudice based on fraud where the non-moving party gave multiple inconsistent answers in her discovery responses (including her actual legal name, whether she held a valid driver’s license and from what state, her social security number, and her prior injuries). 706 So. 2d at 46.

Since that holding, the Fifth DCA has receded from the broad grant of dismissal seemingly authorized by the decision, explaining that Cox is a case that should be “limited” to its very “unique” facts. See e.g., Ruiz v. Cty of Orlando, 859 So. 2d 574 (Fla. 5th DCA 2003) (“In Cox, we anticipated, although we apparently underestimated, the seductive power of [the remedy of dismissal for fraud]. . . . Cox was an extremely unusual fact pattern, wholly unlike the more conventional impeachment issues that have shown up in some more recent decisions.”); Amato v. Intindola, 854 So. 2d 812 (Fla. 4th DCA 2003)(emphasizing that the inconsistencies or falsities in the Cox case were pertinent to name, place of residence, social security number and other information that actually prevented the defendants from conducting or investigating their claim). However, that still begs the question of what conduct should be considered fraudulent and what false, misleading, or incomplete responses will amount to a “scheme” calculated to “subvert” the judicial process?

It seems that more current cases have limited the instances in which dismissal may be proper. For instance, in Laschke v. Reynolds Tobacco Co., the Second District reversed dismissal with prejudice in a case where the non-moving party had actually attempted to have her medical records changed, in an attempt to mislead and deter the moving party. 872 So. 2d 344 (Fla. 2d DCA 2004). It seems hard to image a case that could be subject to dismissal for fraud where volitional conduct by the non-moving party to actually alter medical records fell short of the standard of fraud on the court. Id. In Bob Montgomery Real Estate v. Djokic, the Court found that apparently forging a document attached to the complaint was not sufficient to warrant dismissal based on fraud. 858 So. 2d 381 (Fla. 4th DCA 2003). Although admittedly, in Bob Montgomery the issue was really one of proof rather than sufficiency of conduct. Id. Further, in Bologna, the trial court noted that “fraud on the court” has become a “strategy on the part of defense counsel” and cautioned against permitting a defendant to ask overly broad questions in discovery or depositions with no meaningful follow up and thereafter slapping the plaintiff with a motion to dismissed based on fraud. 955 So. 2d at 529.

However, even in light of these questions and the appellate court’s attempt to limit the application of this doctrine, numerous cases still find fraud where cross-examination and traditional discovery tools or sanctions could arguably remedy the inconsistencies in the non- moving party’s discovery responses. See e.g., Middleton v. Hager, 179 So. 3d 529 (Fla. 3d DCA 2015) (finding dismissal appropriate where the plaintiff failed to disclose prior vehicle accidents which resulted in treatment); Herman v. Intracoastal Cardiology Center, 121 So. 3d 583 (Fla. 4th DCA 2013) (affirming dismissal with prejudice where contents of the litigants diary showed that she lied on various occasions throughout the litigation).

The long and short is this: whether you are a moving, or a non-moving party, in the fraud dance the outcome of the motion to dismiss is largely dependent on the specific factual circumstances of your case. Having said that, if you are a moving party: you have the burden, which is high. A such, to support a claim of fraud, the moving party should produce adequate evidence that shows the intent of the non-moving party in making inconsistent, incomplete, or even false statements. It appears that this intent to defraud or intent to subvert the truth seeking function is the key factor in determining whether dismissal is appropriate. Under the standard and current trends, presumably mere “lack of memory” “inconsistencies” or “even lies” without this critical intent element would be considered short of fraud on the court. On the flip-side: the non-moving party should be

prepared to combat this evidence by showing lack of intent, mere inaccurate memory, innocent misunderstanding, or even (in the case of false statements) an innocent intention on the part of the non-moving party.