Daily Business Review: South Florida Midsize Law Firms Find Room for Fee Options

Daily Business Review

 

By Catherine Wilson

The buzz about alternative fee arrangements has gotten louder in recent years, and many midsize law firms in South Florida have carved out space for something other than the straight billable hour.

AJK High Resolution“It’s becoming more and more of a topic, especially in big commercial cases, where it really wasn’t before,” said Miami commercial litigator Alan Kluger, co-founder of the 32-attorney Kluger Kaplan. “Clients are more receptive than they used to be.

The field of possibilities is open on the client side.

“Every single client, with the exception of maybe the Fortune 50, are potential clients to do alternative fee agreements, and the main thing they tell you is the shifting of the risk solely from the client to the client and the lawyers makes them happy,” he said.

But opinion is split on the willingness of clients to switch away from billable hours to AFAs.

Gary Rosen, managing shareholder of the 92-attorney Becker & Poliakoff, said he attends a lot of professional conferences, and “there’s been a lot of talk about AFAs in the past 10 years generally.”

“In reality, AFAs have not grown as dramatically and have not become as significant a component of the overall legal landscape as many have predicted, and the reason is it’s not that lawyers are uncomfortable with it. For the most part, it’s clients who are uncomfortable with it,” he said. “Clients have shown a reticence to move much more significantly into the AFA environment.”

Clients like the idea of predictable legal fees, and alternative arrangements are keyed more to specific clients than practice areas, said real estate litigator Ryan Gesten of the 21-attorney Shapiro, Blasi, Wasserman & Hermann in Boca Raton.

“I’ve been practicing 17 years. I’ve handled 1,000 matters on contingency,” he said. When considering a request for alternative fees, “it’s almost like we know it when we see it.”

Attorneys at South Florida midsize firms said alternative fees represent as little as 10 percent of total revenue and as high as 80 percent of cases, with litigation being a common practice area for AFAs.

The types of cases most likely to foster alternative fees at Kluger’s litigation firm are third-party and bad faith insurance claims, legal malpractice claims and breach of warranty claims.

“Those cases get resolved because it’s money. It’s just money,” he said.

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Law360: Plaintiffs Bar Perspective: Kluger Kaplan’s Bruce Katzen

Bruce Katzen - kluger Kaplan

Bruce A. Katzen is chairman of the trust and estate’s litigation practice group at Kluger Kaplan Silverman Katzen & Levine PL in Miami. He focuses his practice on litigation of probate, trust and guardianship disputes as well as commercial litigation, including corporate matters, securities, accountants’ liability and stockbroker liability and Financial Industry Regulatory Authority arbitrations. He has become particularly recognized for his work in the areas of financial fraud, franchise disputes, probate, trust and guardianship disputes, company purchase and sale disputes, and life insurance coverage disputes.

Katzen’s early training as a certified public accountant piqued his interest in the complex financial fraud and probate cases that he handles for his clients. Given the technical financial issues in most of his cases, his background enables him to more thoroughly understand the issues, more precisely examine witnesses and experts, and more zealously advance his client’s position.

Q: What’s the most rewarding aspect of working as a plaintiffs attorney?

A: The most rewarding aspect of working as a plaintiffs attorney is assisting individuals who have been injured or harmed in some fashion. In my practice, I frequently have clients come to me facing emotional and financial hardship and are in need as a result of them being wronged. It is rewarding to work with them to right this wrong and recover damages on their behalf.

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Daily Business Review: Litigation Department of the Year

Daily Business Review

Kluger Kaplan Litigation Department of Year

Alan Kluger, Marko Cerenko, Todd Levine, Steve Silverman and Abbey Kaplan, of Kluger, Kaplan, Silverman, Katzen & Levine. Photo via DBR.

Litigation Department of the Year

General Litigation – Midsize

Kluger Kaplan

The 31-attorney litigation boutique is known nationally for taking on complex, high-stakes disputes across a range of disciplines and industries.

Kluger Kaplan’s trial lawyers have earned national recognition as determined and effective client advocates. Their expertise is in business and corporate litigation, real estate litigation, securities and financial fraud, corporate governance, probate and estate, bankruptcy litigation and debtor and creditor’s rights, federal and state appeals, professional liability, intellectual property, class actions and complex matrimonial litigation.

The firm is called upon by general counsel from companies across the country to litigate big matters.

Its cases include litigation against Donald Trump’s company, Alex “A-Rod” Rodriguez’s divorce, the Fontainebleau Las Vegas director and officer liability case, litigation against developer Art Falcone and his Miami Worldcenter project, the Victor Posner estate battle, Claudio Osorio’s investment fraud litigation and the Dollar Tree restrictive covenant cases.

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The Wrongful Act Doctrine: Recovering Third-Party Litigation Expenses as Damages

Authored by James Diamond and Richard I. Segal

Florida follows the “American Rule” on the entitlement to attorney’s fees, in that attorney’s fees generally are not recoverable as an element of damages in the absence of statutory authority or a contractual agreement. However, civil litigators throughout Florida should be aware of a powerful yet somewhat unknown exception to that general rule – the Wrongful Act Doctrine.

The Wrongful Act Doctrine permits “a plaintiff to recover third-party litigation expenses as special damages where the defendant’s wrongful act caused the plaintiff to litigate with a third party.” More specifically, the Doctrine provides that “[w]here the wrongful act of the defendant has involved the claimant in litigation with others, and has placed the claimant in such relation with others as makes it necessary to incur expenses to protect its interests, such costs and expenses, including reasonable attorney’s fees upon appropriate proof, may be recovered as an element of damages.” Continue reading

Avoid Legal Troubles in the Workplace, Part 2

law 360

There are two simple ways to prevent unwanted legal claims from interrupting the fun: 1) limit alcohol consumption, and 2) have procedures in place to ensure office policies remain intact. For example, companies can choose to refrain from serving alcohol entirely, or offer drink tickets to regulate alcohol consumption by employees. In addition, when choosing a venue for the holiday party, it is important to keep in mind the access employees have to public transportation to avoid drinking and driving. Employers should also consider offering reimbursements for taxis, Uber or other services that offer employees alternatives to impaired driving. By encouraging employees to make good decisions, employers can set an expectation for employees to follow that will help ensure a safe and fun party.

Maintaining office policies during holiday parties is also very important. An email reminder prior to the party reminding everyone to adhere to office policies is a good idea. In addition, members of management should especially adhere to company policies since others will likely follow suit.

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