Daily Business Review: Litigation Departments of the Year — Small Firms

By Catherine Wilson

Daily Business Review

The Daily Business Review is recognizing litigation departments at small law firms with fewer than 70 attorneys in Florida for their powerhouse practices as part of the annual Professional Excellence Awards.

Many firms have carved out courtroom specialties serving major clients and government agencies, and a select few have been chosen for their noteworthy litigation achievements in 2018.

Awards will be presented to the honorees at a recognition event set May 23 at the Rusty Pelican in Miami.

REAL ESTATE-SMALL FIRMS: KLUGER KAPLAN

The 10-year-old Kluger Kaplan litigation boutique distinguished itself in an assortment of hypertechnical real estate cases in 2018.

When the joint developers of the 19-unit boutique condominium at 300 Collins Ave. fought for control of the five-story building in Miami Beach’s resurrected South of Fifth neighborhood, Kluger Kaplan attorney Marko Cerenko succeeded in enforcing a buy-sell reverse option for his client, PSB Collins LLC, led by the Goldman Sachs’ youngest partner, Dhruv Piplani. Developer Jason Halpern’s JMH Development refused to surrender the property until Miami-Dade Circuit Judge William Thomas ruled for PSB last October.

Kluger Kaplan’s Alan Kluger and Josh Rubens, along with Todd Legon of Legon Fodiman, represented the minority owner of Miami Beach’s Seagull Hotel in obtaining a forced partition of the property and the $31 million sale of the beachfront hotel in January 2018 after 14 months of litigation.

The Third District Court of Appeal last August affirmed a decision in favor of Florida Pritikin Center LLC and its long-term lease at the Trump National Doral Miami golf resort. Kluger and Philippe Lieberman maintained soon-to-be President Donald Trump wrongly tried to force the center out of its leased space and out of business.

The appellate court last June also affirmed a decision favoring the sellers represented by Kluger and Ashley Frankel, along with Scott Kravetz of Duane Morris, in a $2.8 million home sale contract. The decision strictly upheld the termination provisions of the Florida Bar’s standard contract for real estate home purchases.

The founders of the 28-attorney Miami law firm sought to build a strong niche practice that would complement rather than compete with full-service firms. In the process, the firm has turned some previous adversaries into clients.

Daily Business Review: Q&As With DBR’s 2019 On the Rise Honorees

The Daily Business Review recognizes attorneys with On the Rise awards for outstanding work early in their careers.

By Catherine Wilson

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LINDSAY HABER

Title: Partner

Experience: Kluger Kaplan, 2011-present

Education: Nova Southeastern University, 2010; University of Florida, 2006

What drew you to a career in law? The ability to use my undergraduate journalism degree with a career that would continuously keep me on my toes.

Have you set a specific goal that you want to achieve in the next year? I recently achieved my No. 1 work goal for the past several years of becoming partner at Kluger Kaplan in January.

What has been your proudest career moment and your biggest hurdle? Proudest career moment: Helping my client, an Italian citizen, get his children back to Italy.  His wife, also an Italian citizen, had brought their Italian children to Miami for a summer vacation and refused to return the children to their home in Italy for the upcoming school year. Biggest hurdle: When I first started, building my confidence when arguing against senior attorneys in the courtroom.

Where do you fit on a 1-10 work-life balance scale with 10 being nirvana? Please explain. 7, There is an ebb and flow when it comes to work-life balance, especially when we are all continuing to push for professional success.  I have started using my work calendar to plan not just work, but my personal life as well. So that I can try and make time for myself and my family and know how to plan each day successfully around both.

What is the top quality that you’ve used to succeed in the profession? Self-awareness. I am a litigator, part of a great law firm, and practice specifically in family law. To handle the hectic days that come with all of that, it takes more than just understanding the law. It takes, patience, understanding, and most of all, self-awareness. Knowing your strengths as well as your shortcomings helps me within my law firm as well as with my clients.

Who is your favorite mentor and why? Alan Kluger. He has allowed me to grow as a lawyer over the nearly 10 years at his firm: first as a summer associate in law school, then as a lawyer, and now as a partner at the firm. Alan has given me opportunities that must young lawyers could only dream of. I am thankful for the challenges he has given me and pushing me to be a better lawyer.

What’s the best advice anyone has ever given you? You know the law, now go with your gut!

What trends are you observing in the profession that you’re excited about? The way technology and remote connection has changed one’s ability to work away from the office desk. I think this has and will continue to be a big game changer for attorneys.

What is the greatest challenge you see for the legal profession? Technology. It has allowed emails, text messages, phone calls and even FaceTime to replace in-person meetings. Technology can be a double-edged sword!

If I weren’t a lawyer, I’d be … I don’t really know! I like being a family law attorney.

Daily Business Review: Social Science Looks to Demystify the Jury Selection Process

The use of jury consultants who use empirical analysis to find out how a firm’s case will play in front of a jury before a trial ever begins has become standard practice — especially in high-stakes litigation.

By Dylan Jackson | February 20, 2019 at 06:09 PM

Screen Shot 2019-02-25 at 2.05.43 PMJury selection has long been a cryptic process, and every trial attorney has a juror war story and list of voir dire taboos.

Some have called it pure guesswork. Others have described it as a combination of psychology and the dark arts.

But Marjorie Sommer, co-founder of the Florida trial consulting firm Focus Litigation, believes lawyers have too many preconceptions about jury selection. She and her partner Geri Satin say the process need not be a mystery.

“It’s a numbers game,” Satin said.

Through qualitative and quantitative analysis (Satin has a doctorate degree in legal psychology from Florida International University) and with the help of a thousand focus groups, mock trials, and real-world verdicts, Sommer and Satin counsel law firms, companies and even government agencies about what type of jury could help their case.

Over the past two decades, the use of trial consultants has become ubiquitous in high-profile cases. In 1983, the American Society of Trial Consultants had less than 20 members. Today, the organization boasts nearly 300. While in its infancy, the industry was viewed with much skepticism. But as the digital era has matured, data analytics has grown more sophisticated, transforming jury consulting into a legal industry that is accepted and even embraced.

Much of their job, Satin said, is to demystify the jury selection process and use their combined 30 years of legal experience to provide actionable recommendations based on their findings…

“Here we are, all lawyers, and we’re trained on the legal issues. We’re not really trained on the social science part of it,” said Bruce Katzen, founding partner of Miami-based boutique litigation firm Kluger, Kaplan, Silverman, Katzen & Levine. “It’s good to hear how ‘real people’ react.”

After both sides argue their case, the mock jury deliberations are recorded for analysis and a verdict is rendered. Satin and Sommer then compile a report that can run hundreds of pages, stuffed with recommendations, quantitative analysis that uses a juror’s responses to specific questions to correlate a verdict. Advice to clients could include formulating precise questions for voir dire, pointing out what juries perceived as weaknesses in a case, and highlighting the most effective visual aids.

But their job isn’t only about jury selection. Satin and Sommer say some of their biggest “wins” come before jury selection even begins. If an insurance company has $500 million in exposure, and the focus groups and mock juries are returning consistent findings against their client, they will advise the client to work on a settlement instead of recommending a trial. If the company settles for $50 million instead of losing big in the courtroom, Satin and Sommer see that as a victory.

“One of the most reliable things we give is a reality check,” Sommer said.

Read the full article in the Daily Business Review. 

 

The Real Deal: JMH Development must turn over remaining interest in 300 Collins: judge

The Real Deal features Kluger Kaplan’s recent win on behalf of PSB Collins LLC.  

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A judge has ordered Jason Halpern’s JMH Development to turn over its remaining interest in Three Hundred Collins to its silent partner, amid ongoing litigation.

The five-story, 19-unit boutique condo at 300 Collins Avenue in Miami Beach’s South of Fifth neighborhood was completed this summer, and has just one unsold unit remaining: Penthouse 2 priced at $5.3 million. JMH must turn over that unit and any cash in the bank to its partner PSB Collins LLC, led by Dhruv Piplani, according to an order signed by Miami-Dade Circuit Judge William Thomas.

Piplani’s attorney Marko Cerenko said Piplani’s entity is also entitled to the cash proceeds of the $1.6 million sale of unit 3-A, which was purchased just before the lawsuit went to trial last week. The value of the total owed to Piplani’s entity is estimated at $6 million to $7 million, said Cerenko, a partner at Miami-based Kluger, Kaplan, Silverman, Katzen & Levine…

Continue reading in The Real Deal. 

Anatomy of a Case: Kluger Kaplan Sets New Standard for Upholding Residential Real Estate Contract

Case: Diaz v. Kosch, Third District Court of Appeal of The State of Florida

Thanks to the arguments of Kluger Kaplan attorneys, Alan Kluger and Ashley Frankel, along with Scott Kravetz of Duane Morris, the Third District Court of Appeal of The State of Florida recently set a new standard for strictly upholding the provisions of the Florida Bar’s standard contract for real estate home purchases.

AJK High ResolutionBackground:

The case began in 2012 with a real estate transaction gone bad.  Coral Gables homeowners, David and Tiffany Kosch, entered an agreement with Miami attorney, Richard Diaz, to sell their home “as-is” for nearly $2.8 million.  The purchase agreement followed the standard form for a real estate contract established by the Florida Bar.

As part of the purchase agreement the sellers completed a disclosure statement affirming, among other things, that they had no knowledge of improvements constructed in violation of applicable building codes, without necessary permits, or with any open permits not closed with a final inspection to the property or the presence of toxic substances. The prospective buyer deposited $50,000 in escrow for the purchase with a further deposit of $235,000 due when the 10-day right of inspection and right to cancel period expired.

AFrankel232During the 10-day inspection/termination period, the buyer raised concerns regarding unpermitted renovations; however, they did not negotiate an extension of the inspection period or terminate the transaction. On the final day of the right to terminate period, the buyers deposited the additional $235,000 in escrow, per the agreement, but also threatened legal action against the sellers.

Shortly before the closing date on the purchase, the buyers terminated the transaction demanding return of the money deposited in escrow. The buyers also filed a lawsuit against the sellers and brokers asserting claims for breach of contract, conversion, fraud in inducement, fraud in concealment, negligent misrepresentation, and conspiratorial fraud, with a claim for punitive damages asserted as well. The buyers also alleged the property contained radon contamination requiring extensive remediation.

The Ruling:

The litigation over the failed sale was extensive, lasting more than four-and-a-half years during which the buyer filed multiple motions for punitive damages. Ultimately, Judge Eric Hendon of the Circuit Court for Miami-Dade County issued a summary judgement in favor of the sellers, ruling the buyers did not properly exercise their right to terminate in the period allowed by the contract, and so were not entitled to a return of the money held in escrow. Additionally, the judge awarded the sellers attorneys fees in the case. In June 2018, the Third District Court of Appeal affirmed Judge Hendon’s decision.

The court ruled that the allegations in the plaintiffs’ complaint were contradicted by the language in the “As Is” Residential Contract for Sale and Purchase, which included non-reliance provisions. The court further ruled that the buyers could not attempt to get around these provisions by effectively creating a “conditional tender” of the second deposit, which would make the sellers liable for repairs, permitting issues and other circumstances.

Impact:

This was a landmark decision that reinforces the strict, but enforceable provisions in contracts governing residential real estate transactions. It affirms that purchasers and sellers must carefully review and comply with the letter of each provision in the Florida Bar’s standard form.

Parties in a home purchase must adhere to the wording of the “As Is” contract, which states that once a deposit is in escrow, the purchaser cannot change the terms of the agreement, and must either move forward or walk away. Purchasers are not allowed to create a “conditional tender” with a second deposit to reserve their right to purchase but hold the sellers liable for repairs.