On October 1, 1999, changes to Florida Statute Section 57.105 went into effect which could dramatically alter when attorneys' fees can be awarded by the court to a prevailing party. Formerly, Section 57.105 only provided for an award of fees in cases where the court found "a complete absence of justiciable issue" either in the law or facts raised by the pleading. The courts have interpreted this standard to require a showing that the action was so "clearly devoid of merit both on the facts and the law as to be completely untenable." Actions coming within the purview of this section were referred to as "frivolous."
Plaintiff's attorneys often file "boilerplate" complaints which are used in similar actions and which may contain, in part, allegations and claims for damages which are not supported by the material facts of the case. Likewise, defense attorneys typically file "kitchen sink" answers, raising every possible affirmative defense in their initial answer, without knowing whether the defense is supported by the material facts of the case. During the discovery process, if it becomes apparent that a party is not legally entitled to raise a certain claim or defense, they are disposed of during litigation with little or no adverse consequences to the party or the party's attorney.
The recent changes to Section 57.105 require that these practices be changed or the party, and/or their attorney, may be subject to sanctions. The recent 1999 tort reform legislation eliminates the old "frivolous" standard and now provides for an award of attorneys' fees:
"[T]o 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."
Revised Section 57.105 appears to be modeled after Federal Rules of Procedure, Rule 11. The federal rule emphasizes the need for pre-suit investigation into the facts and the law of a case in order to assess the merit of a particular action.
The Florida State legislature is now encouraging the same type of inquiry in state court and providing a means for the court to impose sanctions against parties and attorneys who fail to investigate their claims or defenses prior to filing their pleadings. Therefore, it is now imperative that, at the time a pleading is filed, the party and their attorney both have a clear understanding of whether the claims or defenses they intend to file are legally viable and supported by the material facts.
In light of the foregoing, parties and their attorneys must change their practices of the past and adopt new procedures prior to filing their pleadings. Unless an adequate pre-suit inquiry is made, a party and its attorney face the possibility of sanctions being assessed against them under revised Section 57.105.