July 4 – Tales from KKSKL's "Founding Fathers"
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. July 3, 2012
July 4 is a time to celebrate our independence, commemorate our freedom and recognize the rebellious spirit of the founding fathers. Because they dare to take a risk, we are able to enjoy the freedom that we do today. To kick off the re-launch of the KKSKL blog and to celebrate the spirit of July 4, four of our veteran “legal rebels” talk about the risks they took in their professional careers that helped pave the way for their current success.
Some of my greatest professional risks have come from cases where the facts supported my clients but there were no cases precisely on point to support my position. One example was Framer Realty, Inc. v. Ross, 768 So. 2d 5 (Fla. 3d DCA 2000). In Framer, my client spent countless hours showing properties to a residential buyer. My client introduced the buyers to the property and over the course of a year, my client handled multiple property inspections and provided analyses of comparable transactions in the area, expending a tremendous amount of time to ensure that the buyers were able to obtain this property. When the buyer ultimately closed, another real estate agent handled the transaction. We sued for unjust enrichment. In early discussions, the defendants offered my client some money but I felt that it was too low compared to the amount that the defendants received from the transaction so I discouraged my client from accepting it. Then, my case received a blow – the trial court granted summary judgment in favor of the defendants. I did not have a case specifically on point in the broker context to present the court. Instead, I presented a series of parallel cases, but the court was not swayed. I had no choice but to take an appeal. I knew that my client had been wronged and the Third District Court of Appeals agreed, reversing the final summary judgment. We ultimately settled the case for 2.5 times the initial offer. I make it a practice to stick to my guns in cases where the case law may not be exactly on point but, when taken to its logical conclusion, supports my client’s position. Today, when two brokers work on a transaction but only one takes it to closing, because of Framer Realty, the closing agent knows that he or she has to share the commission.
Twenty-five years ago, I ran my own firm as a solo practitioner. Business was booming and life was good. So I was surprised when one day, a valued colleague suggested that I meet with Alan Kluger. Alan and I knew each other from law school and had maintained a professional relationship but only from a distance. My dad always told me that a baseball manager should never break up the battery when the pitcher is doing well. I saw partnering with Alan as a major risk to a practice that seemed to be running on all cylinders. After all, Alan and I were professionally very different. Alan was (and is) a more dominate and controlling personality. I am more methodical and controlled in my approach to issues. However, I learned very quickly that Alan and I had some very clear identical values and goals and a simple approach to partnership. I counseled with my trusted advisor and took the leap. There is no question my partnership with Alan has in great part added to where I am today as a lawyer. What was a very risky move for both of us has turned out better than either of us could have imagined.
In mid-2009, amidst the worst recession since the Great Depression, my partners and I decided to open a litigation-only law firm at a time when firms two, three and four times our size were closing their doors. The decision was not easy. I had built a successful practice creating a distressed assets group at KPKB. In the five years prior to 2009 I had joined with partners in KPKB’s bankruptcy and transactional groups and the three of us built a thriving and growing niche practice focusing on issues surrounding distressed real estate and other assets. To then work at a strictly litigation firm would force me to rethink the focus of my practice, and to do it at a time when nation’s economy was particularly bad, and the South Florida economy was even worse. Moreover, commercial litigation-only firms have not typically enjoyed the same success as their multi-disciplinary counterparts. I was at a crossroads. In my heart, I knew that I was surrounded by the talent and drive to make a success of this new venture, so I decided that there were no better people than my current partners to jump off the cliff with, and off I went. My practice has slowly re-defined itself more towards my roots in federal litigation, and I consider myself fortunate to enjoy continued success in this area; while also keeping my distressed asset practice active. Three years later, Kluger Kaplan is prospering and my own professional career is also flourishing.
After 6 years of practice, I decided to go out of my own. I am generally a conservative guy so this was a huge risk for me. One of my early cases was a business tort case that I took on contingency. I thought my client had a good claim so I invested a significant amount of time and money into the case. Then, the defendant filed for bankruptcy and overnight, the entire case stood to be completely worthless. Having invested so much time and money into the case, I had no choice but to move forward with the litigation. The bankruptcy court sent us to mediation where the defendant offered my client stock to settle the case. Ultimately, the defendant company emerged from bankruptcy and the stock maintained some value and both my client and I were able to collect. However, it was a risky move and a valuable learning experience that I continue to reference today when I take cases on a contingency fee basis.