Mediation: Small Claims in Florida

This topic may seem a little dry to some of you so if you want to bypass the legal information and go straight to the somewhat humorous anecdotes, skip down to the paragraph titled "Some Words of Caution."

And now for the post.

I've had several people e-mail me with questions about Florida's lawsuit procedures in civil "small claims" court cases. In response, this post is intended to shed a little light on one particular area of Florida Small Claims Court: Mediation. If you are suing or have been sued in a Florida Court I hope this post is helpful.

Three Separate Divisions
As a general rule, Florida's Civil lawsuits are handled by one of three separate divisions, most often depending on the amount of money involved in the case: (1) the Circuit Civil Division, (2) the County Civil Division, or (3) the Small Claims Division. Cases where the amount sought in the suit is $5,000 or less usually belong in the Small Claims Division.

Small Claims Mediation (Pre-Trial)
It is always interesting to me to see the expression on a defendant's face when he or she first finds out that most of the Florida Rules of Civil Procedure DO NOT APPLY in Small Claims court. To begin with, discovery (i.e. depositions, interrogatories, production requests, etc.) is generally either extremely limited or altogether prohibited. If you file suit in Small Claims court thinking you are going to be involved in a full-blown, knock-down, drag-out fight you need to think again. "A pound of flesh nearest the heart" has very little place in Small Claims court. Short, sweet and to the point is what Small Claims is all about.

The Nuts and Bolts of the Small Claims Process
It has been my experience that Small Claims court is primarily designed to help the two parties work their case out prior to trial. This design is typified by the process itself. Once suit is filed the Small Claims court (often the same judge who runs County Civil) sets a Mediation, or Pre-Trial, date. The Pre-Trial date requires both parties to show up on a set date, sit down with a mediator and try to work things out.

In practice it works like this. Suit is filed and the defendant is served with the papers. The suit papers contain a Pre-Trial date instructing both parties to appear before the Court on a certain date. There are usually a number of other cases and parties scheduled to appear on the same date and at the same time. The judge will then call roll (yes, just like elementary school) and the parties answer "present," "here," or some other respectful reply to the judge. If both parties to a case appear, the judge will assign the case to a mediator. The parties will go into a separate room in the Courthouse and try to work their case out. If the case cannot be worked out, the parties will then return to the Courtroom. The judge then assigns a trial date (usually within 30-60 days). The judge will not take testimony at Pre-Trial and no witnesses are required.

Some Words of Caution
The following things should be avoided with regard to Pre-Trials:

(1) Do not leave your cell phone turned on while in the Courtroom. I saw a guy get stared down, yelled at, held in contempt of court, handcuffed and taken to jail all because of his cell phone. In all honesty, if the guy had not answered the phone in open court only the first two would have happened. The judge was clearly not running for re-election;

(2) Do not answer "Uh-huh" when the judge calls your name. You guessed it-stared down and yelled at;

(3) Do not tell the judge "Judge, you don't know what the H--- you're talking about." The judge will likely skip staring you down and yelling at you and just send you straight to jail; and

(4) Do not miss the Pre-Trial. If you miss the Pre-Trial the judge will dismiss the case (if you are the Plaintiff) or enter a judgment against you (if you are the Defendant).

Lawyer Ethics: An Ethics Post Revisited

The last two weeks have been about as hectic as any I have had in recent months. A good time to revisit the archives. Check out this post on Lawyer Ethics. The post started a buzz on several different blogs the week it was written dealing with lawyers and ethics.

An apt summary of the post is that sometimes the non-lawyer and lawyer worlds clash as to what constitutes the right ethical decision. The primary case cited in the post involves an attorney faced with whether to tell the grieving parents of two murdered children where the children's bodies were buried. The attorney knew because his client murdered the children and told the attorney where the bodies were located.

After reading the above facts, what would you do if you were the attorney? The answer likely depends on whether you have attended law school and, if so, how well you did in your Ethics 101 class.

Divorce: A Mediation Post Revisited

I don't think "Find A Divorce Attorney" is at the top of most people's New Year's resolutions, but that seems to be the way it is going in my circle of friends. In addition to my friend in Arizona last year, several others have brought the topic up of divorce lately. I thought it would be a good time to revisit a post I wrote on Divorce Mediation. An apt summary of the post is that more often than not both parties to a divorce will be happier if most of the issues can be taken care of through mediation.

My advice: give mediation a try, especially if children are involved.

Thanks for the Shout Out Inter Alia

Like many of you I love reading other legal and political blogs. One blog I check often is Inter Alia. I noticed that Inter Alia gave a shout out to this blog yesterday. Thanks Inter Alia.

Labor Law: Employee or Independent Contractor?

One of my colleague’s clients recently found itself in trouble with the IRS and its insurance company for incorrectly designating several of its employees as independent contractors. The employees had been with the company for at least a year when the company decided to restructure the relationship to “save money.” The company laid the employees off only to hire them back as independent contractors the following week. The idea was that by designating the employees as independent contractors the company would not have to pay payroll related taxes and could cut down on the amount it spent on insurance benefits.

Several months after designating the employees as independent contractors, one of the employees wrecked his truck while working for the company. The company was held liable for the accident, but because it did had not identified the driver as an employee for insurance purposes it was prohibited from claiming coverage under its insurance policy.

In addition, it is my understanding that the company has recently had penalties levied against it by the IRS for failing to pay employee related taxes.

Autonomy versus Control
The company failed to understand the biggest factors in distinguishing an employee from an independent contractor: (1) the ability to control how the individual performs the job; (2) whether the individual uses his own or the company’s equipment; (3) how the individual is paid; (4) where the individual works; (5) when the individual works (i.e. set work day schedule).

Recommended Precautions
What could the company have done to avoid problems with its insurance and the IRS? Consider the following:

The company may have been able to address the above factors and ensure the individuals received the treatment the company wanted them to have by (1) having the individuals sign an agreement acknowledging their status as independent contracts; (2) requiring the individuals to obtain their own business licenses, tax identification numbers, places of business and other clients; (3) allowing the individuals to control the manner in which their work was performed (i.e. does the company give “instructions” to the individuals or merely make “suggestions.” Instructions are indicative of an employee, Suggestions are indicative of an independent contractor); (4) not hiring former employees and designating them as independent contractors. The company may have considered hiring the individuals through an employment agency.

When In Doubt, Designate As An Employee
But probably the most important precaution the company could have taken is to have treated the workers as employees when it had doubts as to their correct classification. The company may have even asked the IRS to give an opinion on the classification. Trust me, it would have been far better for the company to have taken the above steps than to attempt to clean up the mess they are now in.

Labor Law: Hiring Checklist

2006 ended with one of my small business clients running into a flury of employee problems. Employees on drugs, allegations of sexual misconduct in the workplace and theft to name a few. One of his employees was brazen enough to use the business gas card to fill the tanks of ten personal vehicles. I guess the guy thought it was some type of "friends and family plan." The business caught him because his purchases maxxed out the credit limit of the card and because he purchased the gas at 11:00 at night when all of the company vehicles were tucked safely in the company parking lot.

It is my opinion that the employee problems the company has run into is largely a result of its hiring practices. It seems my client is still trying to run his 10 employee business the same way he ran the business when he had only one employee.

In addition to assisting him with putting together an official Employee Handbook, Confidentiality Agreement and Non-Compete Agreement I suggested he consider the following checklist when hiring employees:

Employee Hiring Checklist

1) Draft a written job description for the position you want to fill;

2) Let current employees review the job description and make suggestions on possible alterations;

3) Screen applicants by requiring them to provide a resume with references;

4) Write down interview questions, interview applicants and evaluate the effectiveness of the questions after interviewing each applicant;

5) Put together an applicant appraisal form and complete the form after each interview;

6) Call references (employers, schools, etc.);

7) Perform background checks (DMV, credit, criminal background, etc.);

8) Ask the applicant about any confidentiality agreements he or she may have signed with former employers.

9) Provide the applicant a written offer or written rejection letter;

10) Make all offers contingent upon successful completion of drug, skill, physical and psychological testing.

11) Write out the new employee's terms of employment and have the employee sign it prior to beginning work; and

12) Have the new employee review and sign your employee handbook, Confidentiality Agreement, Non-Compete Agreement and any other applicable agreements.

You may have other items you would add to this checklist. Feel free to copy this checklist and add to it as best suits the needs of your business.

Intestate Succession

This post is intended to give a brief explanation of the use of a Will in transferring property at death. Use this post in conjunction with my posts on the Enhanced Life Estate Deed, the Revocable Transfer On Death Deed, Life Insurance Proceeds, Beneficiary Deed and the Lady Bird Deed.

What Is A Will?
A Will is a document you can execute which transfers property to your beneficiaries when you die. A Will may be revoked or revised at any time up until the moment you die. It does not grant any beneficiary a right to your property until you die. The downside is that your beneficiaries are usually required to wait a period of time after your death before they can apply for ownership of your property.

Probate Administration
Probate Administration is a process whereby a personal representative is designated to administer your estate. You may (and probably should) designate a personal representative in your Will. It would be wise to designate multiple back up personal representatives should the person you originally designate be unable or unwilling to perform.

Probate administration requires the determination of your heirs or devisees as well as the settlement of your debts and taxes. The process involves court oversight for resolution of disputes. All proceedings are a matter of public record and, therefore, may be subject to public scrutiny. The process usually takes at least six (6) months after the decedent’s death and the cost is usually based on the value of the estate involved.

Small Estate Proceedings
If your estate is of relatively small value, it may pass by Will without probate administration. The gross value is usually placed at less than $100,000 to be eligible for small estate proceedings. Real property beneficiaries are usually required to wait a period of time before they can use this procedure (usually around six (6) months) to give other potential claimants or creditors time to file a claim against the property.

Caution
There are a number of requisites that must be met before a Will can be valid. Each state has different requisites. If your will is not executed with the requisite formalities your state will most likely not recognize the Will and it will then become subject to intestate succession. Be sure to contact an Estate Planning attorney when preparing your Will.

A Shout-Out To My Boys

Every now and then I use this blog to post something family related. This is one such post.

Stephen's Latest Triumph
About a year ago my oldest son Stephen (now 10) was disappointed when he was passed over for the All-Star Soccer Team. He had worked hard on his soccer skills the previous summer and had certainly improved as a player. If I had to guess, I'd say he was probably on the bubble last year to make the team.

But this year was different. After last year's disappointment, Stephen again worked hard on dribbling, passing and blasting the ball. He scored an average of 2 goals each game in his league and was one of the first kids picked for the All-Star Team. His All-Star Team made it to the district championship game which determined which team was to go to the state tournament.

The team they played against in the championship game was very good. Within 5 minutes the other team had scored three times. At halftime the score was 4-0. Let me say here that this is not one of those triumphant comeback stories you see in the movies. No, when the whistle blew to end the game the final score was 7-1. The one point our team did score was scored by Stephen. Although I am certain Stephen would have traded his score for a win it was nice to see him juke the fullback and blast the ball into the corner of the net.

Jacob's Latest Triumph
Yesterday my 7 year old son, Jacob, brought home an award with the words New School Hula Hoop Record - 49:18. I thought it a little odd that the school had a Hula Hoop Record and that noone had been able to hula hoop for longer than a minute. I congratulated Jacob on his triumph and he said "Dad, can you believe I hula hooped for 49 minutes and 18 seconds." I told him it was 49.18 seconds; not 49 minutes 18 seconds.

Jacob continued to insist that it was in fact 49 minutes but neither my wife nor I really thought he knew what he was talking about. I mean he is a first grader and what do they know. I reasoned that even if it were possible for him to hula hoop for 49 minutes, no teacher would stand there and let some 1st grader keep hula hooping when there were other subjects to teach.

This morning when my wife dropped Jacob off one of the teachers approached the van and asked her if she was proud of Jacob hula hooping for 49 minutes. The teacher said she had actually watched him set the record and that she had even fallen asleep at one point. Boy did I feel stupid when my wife called and told me that Jacob was right all along. Jacob won't let us get out of this one without eating a little crow.

A Good Time to go to Law School

A recent poll taken by the Florida Bar shows the average income of lawyers in Florida has risen to $110,000 during the past two years. That is up from $100,000 in 2003. The rise in income does not appear to be the result of additional hours at the office. The same poll showed that private practice lawyers spent around 50 hours per week in the office in 2005-2006. That number is roughly the same as those reported for the last six (6) years.

Other income statistics of note show the following median incomes for the corresponding years: $85,000(2001); $82,000(1999); $75,000(1997).

A good time to go to law school! Might I put in a plug for my Alma Mater, Florida State University.

Child Labor Law: Florida

I went to high school in Tallahassee, Florida. When I was in High School my parents gave me the option of either playing in the band, playing sports or getting a job. I chose the band my freshman year and sports the other three years. It's crazy how having my skull mashed in playing football and having my arms wrenched out of the sockets on the wrestling team were more appealing than getting a job; but such was the case.

When it finally came time for me to get a job I went to the local recreation department and hired on as a part-time umpire. Not exactly what my parents had in mind. I used to tell them that the Child Labor Law prohibited me from doing anything more taxing (as if 3 hours standing in the hot sun for marching band rehearsal was easy). But what does the Florida Child Labor Law really say?

Minors Under 18 Years Old
Florida's Child Labor Law applies to workers under the age of 18. It prohibits such minors from working in hazardous occupations like construction, electrical work, roofing, mining, excavation, or operating heavy machinery. It also prohibits minors from working around explosives. So much for Mr. Garth's science class.

Minor Work Hour Restrictions
Unless exempted, minors cannot work during school hours. One of the exemptions includes a DCT class my wife (then girlfriend) took that allowed her to earn high school credit while working with a draftsman and getting paid for it. Minors 14 and 15 can only work 15 hours per week when school is in session. Minors 16 and 17 may work up to 30 hours per week when school is in session.

When school is out, minors 14 and 15 may work 40 hours per week, eight hours per day between 7a and 9p. Minors 16 and 17 may work as many hours as they choose when school is not in session.