Daily Business Review: Litigator Abbey Kaplan On How Finding Common Ground Has Built His Career

Daily Business Review

By Celia Ampel

Miami attorney Abbey Kaplan believes the “Real Housewives” series is “complete lunacy” — but he’s seen plenty of episodes.

Kaplan carved out time to watch the show when his pop-culture-loving daughter was a teenager so he would have an easier time connecting with her.

Abbey Kaplan“When I used to travel, as an example, I would always buy a People magazine so that when I came back, there would be things that I’d be able to have in common with her and could talk to her about,” Kaplan said.

The business litigator’s belief in finding common ground has helped him win over juries, forge relationships with opposing counsel and grow his 30-lawyer firm, Kluger, Kaplan, Silverman, Katzen & Levine.

Kaplan did not always know he would be an attorney. Like many kids, he wanted to be a professional baseball player, like his idol Mickey Mantle. But at age 13, he was hit in the face with a tennis ball and became blind in his right eye. His dreams dashed, he realized he needed to start on a path toward a different career.

He worked his way through college and law school as a women’s shoe salesman, chatting up people from all different walks of life — including his future wife, attorney Alyne Wrubel Kaplan. Those years taught him the importance of being able to connect with any type of person.

“You have the size fives and you have the size tens,” he said. “You have the women who want to spend a lot of money and the women who can’t spend a lot of money.”

It’s not always easy to meet people on their level, Kaplan said, particularly when you represent business clients who jurors might struggle to relate with. In 1991, Kaplan felt stuck as he prepared to ask for punitive damages in a trademark infringement case.

“I was really struggling with how do you reach common ground with a jury on punitive damages?” he said. “How do you explain to them what it means to punish somebody in the business sense?”

He consulted with his law partner, Alan Kluger, who suggested quoting Exodus 22:1: “If a man steals an ox … and slaughters it or sells it, he shall pay five oxen.”

It worked. The jury awarded $10 million, including $4 million in punitive damages. Although the verdict was later overturned, the moment stuck with Kaplan as a lesson on how to connect with a jury.

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Dare to Dodge (and be Victorious)

Kluger Kaplan was proud to join our colleagues in South Florida’s legal community to support the United Way of Miami-Dade County at its annual “Dare to Dodge” Tournament. While we may often face-off in the courtroom, we always find common ground in support of better education, financial stability and health across our most vulnerable communities.

And, we’re proud to say the Kluger Kaplan team took first place in the tournament!

Kluger Kaplan Dodge Ball IMG_9521 IMG_3462 IMG_3432

Daily Business Review: Litigation Funding Changes Legal Landscape for Boutique and Small Firms

Daily Business Review

 

 

 

 

 

By Monika Gonzalez Mesa

The growth of litigation funding has widened the pool of law firms that can take on big cases, but their increasing popularity means boutique firms that have traditionally landed multimillion-dollar lawsuits by taking them on contingency or offering alternative fee arrangements are now taking a hit…

While boutique firms may feel that third-party funders are undercutting their business, smaller firms that once could not take on big-ticket cases are now able to compete. With the help of third-party funders, they can handle more multi-million dollar lawsuits than they would have otherwise.

“The pool of lawyers available to try a case expands because young lawyers who otherwise could not afford to take the case on contingency can now get funding,” said Alan Kluger, a founding member of Kluger, Kaplan, Silverman, Katzen & Levine. “That’s good. It gives clients a bigger pool of lawyers to choose from. The good lawyers are going to get a lot of work.”

Kluger said his firm does not use third-party litigation funding because it has more than enough work and can take the cases it likes on contingency on its own. Several other managing partners of large firms said they don’t use third-party funding either. But a few said they have used them on occasion as part of an alternative fee arrangement.

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What Legal Rights Do Employers Have When It Comes to Employee Political Speech?

By Michael T. Landen and Mayda Z. Nahhas

Recent headline events may have some wondering about how far First Amendment rights extend into the workplace. Jerry Jones, owner of the NFL’s Dallas Cowboys, declared he would bench any player who protested during the national anthem. ESPN suspended anchor Jemele Hill after a retaliatory tweet to Jones’ comments. President Donald Trump has urged the NFL to suspend players who take a knee during the flag salute.

This string of events raises questions about what rights employers, like the NFL, have when employees engage in political expression on company time. While private employers are typically given wide latitude by the courts when it comes to terminating an employee, employers should still proceed with caution when it comes to disciplining an employee for voicing political opinions in the workplace.

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As a starting point, there is a significant difference for public and private employers as it relates to an employee’s exercise of his or her First Amendment rights in the workplace. Public sector employers are generally more constrained to restrict employees’ rights to exercise their First Amendment rights in the workplace. For example, while some states may enact laws protecting political speech, there is no federal law forbidding the firing of an employee based on the employee’s political views in a private setting. For example, in 2009 a public employee was terminated from his job as a deputy sheriff when he Facebook “liked” his employer’s opponent’s political Facebook page around an election period. The judge found that the Facebook “like” didn’t amount to speech protected by the First Amendment and thus the employer was free to fire him. However, a reviewing court found otherwise and held that a Facebook “like” was sufficient speech and therefore the employee was free to sue his employer for retaliation. Had this occurred in a private sector employment setting, the outcome would likely have been different.

These situations demonstrate why it is so important for private employers to set clear policies relating to free speech issues, and to enforce these policies uniformly to all employees regardless of race, gender and religion. Employers who implement and stick to these types of policies are in a much better position to draw the line when employees seek to hold unwelcome political demonstrations in the office space or on company time. Employee handbooks and manuals are the most effective tool for regulating activities in the workplace, including the rights and restrictions governing employee speech and demonstrations.

Therefore, it is important for employers to have clear and consistent policies and guidelines in place to define what is considered acceptable and non-acceptable expression by employees. Having such policies in place before an issue arises helps set clear expectations for employees, and combat accusations of retaliation if an employee violates a policy. For instance, in 2011 the NFL denied Peyton Manning’s request when he asked for permission to wear black high-top shoes as tribute to the former Colts quarterback Johnny Unitas during a game. It is important for a private employer to set clear boundaries in their policies and apply them uniformly to each employee so that they don’t run into discrimination issues under Title VII of the Civil Rights Act.

Employees reserve the right to express themselves as they wish on their own time. It is more difficult for an employer to make a case against an employee expressing his or her political beliefs outside of the office, during personal time, unless such actions infringe on the employee’s ability to carry out work-related responsibilities. The objective of implementing policies relating to workplace speech is not to curb employees from exercising their First Amendment rights, but rather to regulate such activities in order to promote consistent rules and regulations for all employees.

Law 360: Ruling Puts Banks On Hook For Fla. Real Estate Back Taxes

Law360

Law360, Miami (October 27, 2017, 8:25 PM EDT) — When a mortgage company loaned money to a Miami buyer in 2007, the lender didn’t know the homeowner would improperly claim a homestead property tax exemption. It wasn’t until seven years later that the county would file a lien for the unpaid taxes, a lien that a Florida appeals court now says applies retroactively and takes priority over the mortgage.

The decision, issued Oct. 18, could cause headaches for lenders and title insurers who will now need to worry about priority liens popping up after closing and applying retroactively.

The biggest issue with the decision is its retroactive nature, which could, depending on the property and how long the homeowner wrongly claimed the exemption, lead to liabilities of hundreds of thousands of dollars, according to Farach. By law, a tax assessor can claim up to 10 years’ worth of back taxes for improper homestead exemptions.

“Florida has always been a first in time, first in right state, with one exception: that government liens are superior,” said Marko Cerenko, a partner at Kluger Kaplan Silverman Katzen & Levine PL. “But this means you can go back in time and prioritize a subsequent lien.”

Read the full story on Law360