Florida law permits lawyers quite a bit of latitude to argue aggressively. American lawyers are taught that we use “the adversarial system,” meaning that each side is to make its best argument, as zealously as possible, and the result will be that truth and justice is found. Lawyers, however, cannot make arguments that do not pass the “sniff test.” There must be at least a colorable argument–some reasonable basis–for the argument being made by the lawyer. Florida law–like federal law (“Rule 11”)–has a statutory scheme for dealing with lawyers who are too aggressive and make completely baseless arguments that have no basis in law (or even possibly changing the law) or misrepresent facts or law: section 57.105 of the Florida Statutes. This statutory system allows a party who believes the other side’s argument is wholly frivolous to place the other party on notice and allow them to withdraw the silly argument, or face sanctions. A “57.105 motion” has to be served on the opposing party–but not filed with the court–and then the opposing party has a 21-day “safe harbor” window during which the party can withdraw the frivolous motion. If the party that filed the baseless motion does not withdraw it within 21 days, the opposing party may then file the 57.105 motion and ask the judge to sanction the party that is behaving unethically.

These 57.105 motions should be sparingly used. Indeed, lawyers are permitted to get very creative when advocating for their clients. For example, in litigation concerning the interpretation and application of insurance policies (which are contracts), the contracts at issue feature confusing, contradictory, vague, weird, and generally hard-to-understand language that can be interpreted in more than one way. This means that both parties–the insured and the insurance company–usually have some colorable argument for the position they are advancing. This is why lawyers have to tell clients, at the initial consultation, that we can never guarantee or predict the final result of a case with 100% certainty. There is almost always some argument the other side can make. That is why lawsuits can last many years before they are resolved.

There comes a time, however, when a lawyer must file a 57.105 motion–when enough is enough. I have filed a few 57.105 motions–or served them, at least–in my career. When the opposing lawyer files a motion that is simply outrageous, such as by misrepresenting the holding of a case when there is no ambiguity, you must have a lawyer who will stand up to the other lawyer and fight for you.

I recently was forced to file such a 57.105 motion when my opposing counsel filed a motion to strike my expert that made arguments that simply had no reasonable basis–under any interpretation–for asking the court to do what he was asking it to do. My expert is a licensed Florida public insurance adjuster. Public adjusters are licensed in Florida to represent insureds–property owners–in adjusting insurance claims made against one’s own insurance company (a “first party” claim). They are experts. The legislature of the State of Florida has determined that they, when licensed, have passed a test that qualifies them as an expert in adjusting claims. The statutory scheme also requires them to charge on a contingency fee basis. They can charge 20% of the recovery in a normal claim as their fee, and 10% if the loss occurred during a state of emergency (i.e., a hurricane). They are not permitted to charge by the hour (“time and expense”). That is clear, well understood Florida law.

Well, my opposing counsel in a case filed a motion to strike my expert, essentially arguing that he was biased because he is working on a contingency basis, but he cited cases that clearly involve issues of bribery, such as a party bribing a witness. That type of case is simply not close to being the same thing as a public adjuster getting paid on a contingency fee basis as required by the relevant Florida Statute. My opposing lawyer should know that he can’t go that far in making a “creative” argument. So I served a 57.105 motion.

As an aside, my opposing party did not withdraw the motion during the safe harbor window, so I filed my 57.105 motion and we had a hearing with the judge. The judge denied my motion–exercising her discretion to not sanction my opposing counsel or his client–but the judge did deny my opposition’s motion to strike the expert. That was a victory. Judges are very hesitant to actually sanction a lawyer for things like making very aggressive arguments–it takes wildly obnoxious behavior before a lawyer will get sanctioned–but I showed the opposing lawyer that I was not to be messed with. That case ended up settling a few weeks later with a result that was very favorable for my client.

At the risk of sounding boastful, most of my cases settle before a trial happens, because I show the opposing party and their lawyer that I will fight them in court, using the legal system and arguments available to me, if they continue to be unreasonable. Litigating against a powerful opponent, such as a large insurance company, is essentially a battle to show them that you will fight until the end. It’s a test to see if you–or your lawyer–would actually take a case to trial if necessary. You need a fearless, smart, and imaginative lawyer who will fight for you and stand up to the powerful insurance companies.

Here is a redacted version of my 57.105 motion:

PLAINTIFF’S MOTION FOR SANCTIONS PURSUANT TO 57.105

Plaintiff moves the Court for sanctions pursuant to section 57.105 of the Florida Statutes and States:

I. INTRODUCTION AND SUMMARY OF ARGUMENT

Defendant’s motion to strike Plaintiff’s public adjuster as expert and to exclude testimony as expert at trial (Filing # ________) is frivolous and Defendant and/or its counsel should be sanctioned under section 57.105 of the Florida Statutes.  Defendant cites no Florida case in support of the relief requested, because there are none.  As the Court knows, and as Defendant knows, public adjusters in Florida (1) are required by statute to charge their clients on a contingency basis and (2) are routinely allowed to testify as experts who give opinion testimony in trials in Florida.  

The bias of any witness is always relevant.  The public adjuster is biased because his compensation is based on a percentage of any recovery that he helps Plaintiffs obtain.  Fine.  That means that Defendant can illustrate as much on cross examination and in closing argument.  It is not a basis to strike the witness.  See Sihle Ins. Group, Inc. v. Right Way Hauling, Inc., 845 So. 2d 998 (Fla. 5th DCA 2003) (holding that policyholder’s expert witness, a public adjuster, was qualified to testify about lost profits in policyholder’s action that alleged negligence and breach of contract on part of insurance agent regarding agent’s failure to obtain insurance coverage for business asset, even though witness apparently did not have an accounting degree, because witness was a public adjuster who prepared appraisals and negotiated settlements for property owners, witness was qualified to act as an accountant anywhere in Europe, and witness had both lectured on business interruption and lost profits and published articles on subject).[1]

Defendant has not filed a proper Daubert motion, but if it did, Plaintiff would defeat such a motion, because at issue would be Mr. _________’s methodology and qualifications, not his conclusions, and he would easily pass muster under Daubert.  Defendant’s motion is an attempt to backdoor a “Daubert result” without going through the pain of filing a proper Daubert motion and facing proper briefing in response and a hearing on same.  The Court should not reward this gamesmanship.

II. ARGUMENT AND MEMORANDUM OF LAW

Section 57.105 of the Florida Statutes provides:

57.105 Attorney’s fee; sanctions for raising unsupported claims or defenses; exceptions; service of motions; damages for delay of litigation.—

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

(a) Was not supported by the material facts necessary to establish the claim or defense; or

(b) Would not be supported by the application of then-existing law to those material facts.

(2) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney’s fees, and other loss resulting from the improper delay.

§ 57.105, Fla. Stat. (2023) (emphasis added). 

            Defendant’s motion is wholly frivolous.  It cites two cases: (1) a wholly inapposite case about an attorney bribing a witness and (2) a nonbinding Pennsylvania case,[2] when Defendant knows that public adjusters in Florida routinely testify as experts in first-party-property trials.  It would appear that Defendant has taken this tactic on purpose.  The motion is essentially an attempt to back-door a Daubert result (striking Plaintiff’s witness) without actually filing a proper Daubert motion, which would be followed by proper briefing and an evidentiary hearing at which the Court’s role would be to assess the methodology and qualifications of the witness at issue, but not to usurp the jury’s role of judging the merits of his conclusions.

            The motion is frivolous and Defendant should be sanctioned for filing it. See Sihle Ins. Group, Inc. v. Right Way Hauling, Inc., 845 So. 2d 998 (Fla. 5th DCA 2003) (holding that policyholder’s expert witness, a public adjuster, was qualified to testify about lost profits in policyholder’s action that alleged negligence and breach of contract on part of insurance agent regarding agent’s failure to obtain insurance coverage for business asset, even though witness apparently did not have an accounting degree, because witness was a public adjuster who prepared appraisals and negotiated settlements for property owners, witness was qualified to act as an accountant anywhere in Europe, and witness had both lectured on business interruption and lost profits and published articles on subject); see also Davis v. Bailynson, 268 So. 3d 762 (Fla. 4th DCA 2019) (holding that no basis in law existed for allegation that defendant condominium unit owners breached a fiduciary duty to condominium association and its members by refusing to modify an injunction they obtained concerning assessment of fees, and therefore statutory attorney fees were warranted against plaintiff’s counsel for raising an unsupported claim; attorney conceded there was no basis in law for his allegations, and he should have known that the litigation privilege applied); Mark W. Rickard, P.A. v. Nature’s Sleep Factory Direct, LLC, 261 So. 3d 567 (Fla. 4th DCA 2018) (holding that trial court was required by statute to award plaintiffs attorney fees on their motion for sanctions against defendants, on grounds that after plaintiffs voluntarily dismissed their action, defendants failed to timely plead entitlement to fees, and failed to withdraw their meritless motion for fees until after the expiration of the statutory safe harbor period, despite assertion by defendants’ attorney that he could not get approval to revoke the motion during the safe harbor period because defendant’s sole officer was out of the country and unreachable; defendants’ attorney had a duty to withdraw his admittedly nonmeritorious motion with or without his clients’ permission).

            Additionally, Mr. ______ as a public adjuster is a hybrid witness.  He cannot be stricken entirely.  He has to be allowed to testify, at a minimum, to factual observations.  See Monterey at Malibu Bay Condo. Ass’n, Inc. v. Empire Indem. Ins. Co., 20-CV-24587, 2022 WL 1197414, at *1 (S.D. Fla. Apr. 22, 2022); Roster v. GeoVera Specialty Ins. Co., 2:21-CV-806-JLB-KCD, 2023 WL 1824563, at *1 (M.D. Fla. Jan. 3, 2023).  This is not an all-or-nothing situation as Defendant would have the Court rule.  Mr. _______ is qualified to give opinion testimony under section 90.702, but at a minimum he can give factual testimony.  Section 90.702 is not about putting a crown on a person’s head and declaring them “an expert” or, if not, striking them as a witness entirely.  It’s actually a question-by-question issue.  The question for the Court, when the time comes at trial, is whether the witness is qualified under section 90.702 to give opinion testimony because it would assist the trier of fact in understanding the evidence or determining a fact in issue.  The mere fact that Plaintiff’s public adjuster is working pursuant to a contingency fee contract—which is required by Florida law—is not a basis to entirely strike him as a witness.

III. CONCLUSION

Defendant’s motion to strike Plaintiff’s public adjuster (Filing # ________) is wholly frivolous and unsupported by fact or law under the standard created by section 57.105 of the Florida Statutes.  The Court should sanction Defendant and/or its counsel for filing it.

WHEREFORE, Plaintiff respectfully requests that the Court enter an order sanctioning Defendant or its counsel, or both, and holding a hearing to determine the sanction to be ordered.

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^[1] That public adjusters working on a contingency fee basis in Florida can be qualified to give opinion testimony under section 90.702 of the Florida Statutes is so well established as to be axiomatic.  Section 90.702 provides:  90.702 Testimony by experts.—If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and methods; and

(3) The witness has applied the principles and methods reliably to the facts of the case. It is, of course, axiomatic and in the plain language of the statute that an expert can be qualified by experience, etc.; he need not hold a PhD from Harvard or be a professional engineer, contrary to what carriers in these cases seem to think they can require.  Defendant denied coverage in this case using a field adjuster’s opinions.  But again, Defendant has not filed a Daubert motion and this memorandum is not a full Daubert briefing.

^[2] It appears to be the case that public adjusters in Pennsylvania, unlike those in Florida, are not required by law to charge their clients on a contingency basis.  The Pennsylvania case cited by Defendants provides no relevant guidance to this Court.