Like Rollin’ the Dice in Vegas

Published: April 2021
By:  Tami Augen Rhodes

Two attorneys, a CPA, and a Mediator walk into a room….  Sounds like the beginning of a joke, right?  However, it is unmitigatedly serious.  These four individuals agreed that we could try the case ten different days in front of ten different judges and get ten different results.  The reason this is so concerning to the parties is because this involves their children, property, hopes, and dreams.  It is the end of the life they thought they were building together and now, they must go through a process fraught with fear, confusion, and uncertainty where a person who has known them about eight hours – the Judge – will make a decision regarding the rest of their lives.

However, many family law practitioners are starting to believe there is a better way for Florida families to navigate their divorce.  Florida has adopted the Collaborative Law Process Act, §61.55 et seq., which provides in part, “[t]he collaborative law process is a unique nonadversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation.”  One highlight of Collaborative Law, is that the parties, their collaboratively trained counsel, and other professions involved in the matter enter into a  Participation Agreement which ensures that no Collaborative Team member will proceed to litigation with either party should the collaborate process not resolve the matter and the parties ultimately litigate.

Collaborative Law is a process choice.  Process choices run the gamut from parties sitting down for coffee together writing out the terms of an agreement on the proverbial paper napkin to lengthy, no holds barred, multi-day trials.  While there are many avenues into the Collaborative process, the end result is that both parties retain collaboratively trained counsel.  The core team is typically rounded out by a Neutral Mental Health Professional and Neutral Financial Professional.  However, there is no limit on who can become involved in the process and join the team.  This is truly a “client-centric” approach and the professional team and parties can bring in any other type of professional to assist in the process.  For example, a particular matter may call for a child specialist or one party may seek the assistance of a Financial Professional who is not the team Neutral Financial Professional.

I want to be clear that the Collaborative Law Process is not solely for parties who want to hold hands and sign Kumbaya.  This is perhaps one of the biggest fallacies regarding Collaborative Law.  Many practitioners may wonder how two people who have gotten to the point of ending their marriage would ever be able to sit down together, discuss issues rationally and respectfully, and evaluate different solutions.  Whereas other civil litigation has a winner take all outcome; family court is equitable where, absent extenuating circumstances beyond the scope of this article, neither party “wins” all of the assets or child timesharing.

The Collaborative Law Process allows for streamlined discovery.  Specifically, the Neutral Financial Professional communicates with both parties to obtain necessary documents and discovery.  People are not perfect, and the parties to the Collaborative Process are not always perfect either.  However, unlike traditional litigation which can sometimes have long and drawn out disputes regarding hidden assets, protective orders to prevent discovery, and hearings to compel discovery; the attorneys involved in the Collaborative Process are trained to address these issues head-on and assist the client in moving toward a place of acceptance and understanding in regard to the need to freely provide discovery so that any difficult or sensitive issues can be dealt with in a forthright and respectful manner.  The professional team helps to create a safe space for the parties to operate within in order to accomplish the dissolution of marriage and resolve all issues presented.

Being able to create that safe space to deal with complex family law issues is another highlight of the Collaborative Process.  One example is in the realm of children’s issues.  At first blush, it may appear that the Collaborative Process would not be appropriate for a party dealing with substance abuse disorder when minor children are involved.  I would suggest, it is just the opposite.  Within the safety of the Collaborative Process, a parent can address the real issues surrounding his or her substance abuse.  The team can pause the Collaborative Process and help that party obtain much needed rehabilitation and other services.  They can respectfully acknowledge the delicate balance and care that is required when a parent-child relationship needs to be considered in light of a parent’s substance abuse and create a mechanism that does not serve to punish the parent but, instead, provides continuing safe access along the path to sobriety.

Contested family law litigation which leaves lifelong decisions in the hands of a Judge who has known the family for perhaps mere hours, is like rolling the dice in Vegas.  If you want to improve the odds of parties adhering to a long-term resolution, a buy-in to the Collaborative Process should prove much more successful than a buy-in at the poker table.


Tami L. Augen Rhodes practices exclusively Marital and Family Law and is the principal at The Law Offices of Tami L. Augen, P.A.  She is the Immediate Past President of the Craig S. Barnard American Inn of Court LIV; the Founder and President of the Palm Beach Academy of Collaborative Professionals; and is SuperLawyers and AV rated.  You can contact her via www.tamiaugenlaw.com

For additional ADR tips and resources, go to https://www.palmbeachbar.org/alternative-dispute-resolution-committee/

BEST PRACTICES FOR DISCOVERY IN FEDERAL COURT – BY JUDGE BRUCE E. REINHART

This article expands on some topics discussed during a panel discussion at the 2020 Bench-Bar Conference Federal Practice session.   The ideas expressed are purely my own , in my individual capacity, and do not necessarily reflect the views of other judges, the moderators, or the other panelists.

  1. The Federal Discovery Framework

Many attorneys who generally practice in state court are not familiar with the differences in discovery practices in federal court.  Federal court is a fact pleading system, not notice pleading like in Florida state court.  Under the U.S. Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), a complaint is subject to dismissal if it does not contain sufficient facts to state a plausible claim for reliefThe factual assertions must be “entitled to the assumption of truth,” Iqbal, 556 U.S. at 679, so facts alleged “on information and belief” don’t count.  See Scott v. Experian Info. Sols., Inc., 2018 WL 3360754, at *6 (S.D. Fla. June 29, 2018)

The actually-pled, plausible claims and defenses frame the scope of discovery.  Discovery must be relevant to these claims and defenses, so you can’t get discovery for the sole purpose of developing new claims or defenses.   Even if relevant, discovery must also be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”.  Fed. R. Civ. P. 26(b)(1).  There is no proportionality requirement in state discovery.  The Rule 26(b)(1) standard is narrower than the discovery allowed under Florida Rule of Civil Procedure 1.280.  Specifically, the sole argument that discovery is reasonably calculated to lead to admissible evidence is not a valid one in federal court.

In federal court, a party has an obligation to consider proportionality before propounding a discovery request.  By signing a discovery request, a party is certifying that the request is “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.”  Fed. R. Civ. P. 26(g)(1)(B)(iii).  That being so, requests for production should not reflexively seek “any and all” documents on every topic.

The federal rules incorporate the concept of initial disclosures, which require a party to produce discovery even without a formal request.  Early in the case, a party must:

  • Identify the witnesses whom the party intends to use to prove the case-in-chief for its claims or defenses;
  • Produce or describe by category and location “all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support” its case-in-chief;
  • Provide a computation of each category of damages claimed by the disclosing party, including the evidence that supports that computation; and,
  • Produce any insurance policy that may be available to satisfy all or part of a possible judgment.

Fed. R. Civ. P. 26(a)(1).  A party can be sanctioned for not providing all required information. Fed. R. Civ. P. 37(c).  Parties often wrongly treat initial disclosures as a trivial formality.  In reality, they are designed to expedite the exchange of the bulk of discovery.  Think about it, what should be left for discovery from the other side after proper initial disclosures?  Logically, it’s only (1) impeachment information and (2) evidence one side has that might support the opponent’s claims or defenses.

Finally, unlike state practice, the federal rules require a party to supplement all discovery responses, including initial disclosures, without further request from the opposing party.  Compare Fed. R. Civ. P. 26(e) with Fla. R. Civ. P. 1.280(f).

  1. Discovery Response Cheat Sheet:
  2. Written Discovery

There are generally four possible responses to a written discovery request, and there is a logical reaction to each one.  To assist practitioners, here are the responses and reactions in a simple chart:

Response Reaction
We have it, here’s all of it Requesting party should say “thank you”
I can’t understand what you’re asking for Responding party should contact opposing counsel and ask for clarification.  DO NOT OBJECT ON VAGUENESS GROUNDS WITHOUT FIRST SEEKING CLARIFICATION.  In fact, unless the other party refuses to clarify, a Court should NEVER be presented with a vagueness objection.
We don’t have any Responding party should serve a written response stating that it has no responsive documents in its care, custody, or control
We have responsive documents, but you’re not legally entitled to have some or all of them As required by Fed. R. Civ. P. 34(b)(2)(C), the responding party should serve an objection stating that responsive documents exist, but are being withheld based on legal objection.  Then, they should state the legal objection:

-overbroad/disproportionate

-irrelevant

-privilege (provide a privilege log)

– annoyance, embarrassment, oppression, undue burden or expense

 

After meeting and conferring, the parties can ask the Court to rule on the legal objection

 

That’s it.  Note that only one of those scenarios requires the Court to get involved.

A brief aside.  I must note one of my favorite objections.  Here’s the scenario:  Party A responds to a request for production by saying either (1) it has produced all responsive documents or (2) it doesn’t have any within its possession, custody, or control.  Party B objects that additional responsive documents must exist, so Party A’s response is inaccurate.  What exactly is the Court supposed to do?  Go to Party A’s offices and conduct an independent search?  No.  The proper remedy is for Party B to develop a record through interrogatory or corporate representative deposition of what Party A did to try to identify responsive documents (Where did they look?  Who was involved in the search process?  Etc.).  If Party B then believes Party A has not fully complied with the discovery request, Party B can seek an appropriate remedy on a developed factual record.

Also, undue burden objections need to be supported by evidence that shows the burden.  For example, how long will it take to search and produce the requested materials?  How much will it cost?  How voluminous are the materials?  The same can be true of certain proportionality objections.

 

  1. Depositions

I see two primary kinds of deposition-related objections.  First, a motion to compel the deponent to appear for deposition because the parties cannot agree on a date.  Unlike in state practice, this motion is unnecessary in the Southern District of Florida.  Local Rule 26.1(h) permits a party to unilaterally set a deposition with sufficient notice.  The burden then shifts to the deponent to seek a protective order.  In the overwhelming majority of cases, through the lawyers’ civility and professionalism, they can reach agreement on deposition dates.  In the rare instances when they cannot, use Rule 26.1(h); don’t file a motion to compel.

Second, the deponent will move in advance for a protective order to limit the scope of the deposition.  The concern is that the deposition will tread on privileged or irrelevant information.  This objection frequently arises in the context of a corporate representative deposition under Fed. R. Civ. P. 30(b)(6), where the deponent objects to the scope of the topics identified in the deposition notice.  These preemptive motions are almost universally denied.  The preferred practice is to (1) proceed with the deposition, (2) note objections on a question-by-question basis, and (3) if appropriate under Rule 30(c)(2), instruct the witness not to answer a question.  After the deposition is over, either party can bring the disputed questions before the Court on a fully-developed record.  That way, the Court is dealing with specific questions, not hypothetical ones.

 

  1. Be Careful What You Ask For

If you are bringing a matter to the Court, you should be asking for some remedy.  You should clearly explain what you want, why you’re entitled to it, and when you want it.  That seems self-evident, but frequently lawyers don’t do it.   Be careful, however, of going too far — if you ask for too much, you may get nothing.

Do not ask for “such other relief as the Court deems just and appropriate.”   Except where bad faith exists, the Court lacks inherent authority to award relief.  You need to identify a valid legal basis for relief.  Then, the Court can evaluate whether you’re entitled to it.

The corollary to this idea of asking for identifiable relief is the “no tattling” rule.  Lawyers frequently want to tell the Court that the other side is misbehaving, but do not tie that misbehavior to a legal remedy.   The signal is saying, “For the record” or “The Court needs to know”.   No, I don’t.  As I regularly tell litigants, “I’m not Santa Claus.  I don’t care who’s been naughty and who’s been nice.  I’m here to resolve a legal dispute.”

Almost always, the history behind that legal dispute is not relevant to who wins on the merits.  But, the belief that it does matter has a pernicious effect on the conferral process.  Instead of having a meaningful discussion to resolve their dispute, the lawyers are focused on posturing by sending self-serving emails they can show to the judge to make themselves look good and the other side look bad.  Please know that the judges don’t care.  We’re here to resolve the legal dispute.  Unless the emails show a party refusing to confer or making a concession that they are now denying making, please don’t submit them.

Here are some suggestions for best practices in framing discovery remedies:

Remedy you want How to ask for it
If you want documents or responses produced by a specific date “Overrule the objection and order them (1) to produce all documents responsive to Request for Production #__ and (2) to serve amended Responses to the Second Request for Production by _____.”

 

“Overrule the objection and order them to serve a complete response to Interrogatory #__ by ____.”

 

If you believe you should not be required to respond to the discovery request: “Enter an order finding that RFP #__ is irrelevant/disproportionate to the needs of the case/unduly burdensome.”

 

If you want monetary sanctions: “Award movant the fees and costs associated with this motion, pursuant to Fed. R. Civ. P. 37.”

 

If you want non-monetary sanctions “Strike non-movant’s pleadings.”

 

Overrule/Sustain a privilege objection “Find that RFP #__/Interrogatory # __ [calls for/does not call for] information protected by the attorney client/work product privilege.”

 

 

  1. A Parting Thought

One closing thought.  Discovery is a necessary part of litigation. Its purpose is to exchange information to allow the parties to efficiently evaluate and resolve their dispute.  Financial costs, resource burdens, and time delays are a necessary consequence of proper discovery practice.  That being said, it is unprofessional and unethical to make discovery requests and objections solely to drive up costs for an opponent or to delay the resolution of the case.  Not only is using discovery litigation solely as leverage improper, it’s also not fun.  As Chief Justice Roberts said in his 2015 Year-End Report on the Federal Judiciary:

I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics. The test for plaintiffs’ and defendants’ counsel alike is whether they will affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results

Use your lawyering skills to deal with the evidence, not to try to keep it from seeing the light of day.  You will be a better, happier, more successful lawyer if you do.


This article was written by JUDGE BRUCE E. REINHART. 

FORMER FLORIDA CHIEF JUSTICE GERALD KOGAN, 1933-2021

TALLAHASSEE — Former Florida Supreme Court Chief Justice Gerald Kogan died in Miami on Thursday, March 4, 2021.  He was 87 and was Florida’s 73rd Justice since statehood was granted in 1845.

In the 1990s, Kogan earned international praise for his “Access Initiative” – a program to use the emerging technology of the Internet to make Florida’s court more transparent to the public.

He pushed for courts to provide their records freely to the public on the World-Wide Web. Kogan also organized the first program to make all Florida Supreme Court arguments available gavel-to-gavel by Internet livestream.

These are practices now standard around the nation but novel when he pioneered them.

From his appointment on January 30, 1987, until his retirement on December 31, 1998, Kogan was a key figure in a series of reforms that made the Florida Supreme Court one of the most respected and accessible in the nation. He served as its Chief Justice from 1996 to 1998.

Born in New York City, Kogan moved with his parents and brother to Miami Beach in 1947 and remained a Florida resident for the rest of his life. He graduated from Miami Beach Senior High School and attended the University of Miami, where he received the bachelor’s degree in business administration and his law degree.

Upon graduation from law school, Justice Kogan entered the United States Army. He graduated from the Army Intelligence School and served on active duty as a special agent in the Counterintelligence Corps.

Upon his discharge, he entered the private practice of law in Miami. In 1960 he was appointed an assistant state attorney in the Dade County State Attorney’s Office and rose to the rank of chief prosecutor of the Homicide and Capital Crimes Division.

In 1967 he left the State Attorney’s Office to resume private practice, specializing in criminal trial and appellate law. During this time, he was a prosecutor on behalf of The Florida Bar in attorney disciplinary cases.

Justice Kogan was special counsel to the Florida Legislature’s Select Committee on Organized Crime and Law Enforcement.

In 1980 he was appointed a circuit judge in Florida’s Eleventh Judicial Circuit. In 1984 he was appointed administrative judge of the Criminal Division, and he served in that capacity until his appointment to the Florida Supreme Court in 1987.

Kogan is survived by his wife Irene and his children Robert Kogan and Karen Kogan Rosenzweig. Arrangements for services are pending.