Author Archives: Lydecker LLP

February is Black History Month, a time to celebrate and commemorate the contributions of Black people to America and her history. In keeping with the spirit of the month-long celebration of African influence in America, Lydecker LLP is proud to share with you the stories of Black legal pioneers whose contributions cannot be forgotten. Lydecker LLP is proud of its diversity and views the diversity of its attorneys as one of its strengths.

On February 25, 2022, Ketanji Brown Jackson made history when she became the first Black woman nominated to serve on the United States Supreme Court.

Judge Jackson has a distinguished legal career which includes serving as a judge for the United States District Court for the District of Columbia and the United States Circuit Court of Appeals for the District of Columbia. Judge Jackson grew up in Miami, Florida and received her Bachelor of Arts degree from Harvard University and her Juris Doctorate from Harvard Law School. In addition to being historic, Judge Jackson’s nomination serves as a recognition of the achievements of Black jurists’ at the highest levels of the American legal system.

In Florida, “the granting of a motion for leave to amend a complaint to add a punitive damages claim can be a ‘game changer’ in litigation” because it “subjects the defendant to financial discovery that would otherwise be off limits” and “potentially subjects the defendant to uninsured losses.” TRG Desert Inn Venture, Ltd. v. Berezovsky, 194 So. 3d 516, fn. 5 (Fla. 3d DCA 2016).

Traditionally, certiorari has been the mechanism for reviewing non-final orders granting or denying leave to amend a complaint to assert a claim for punitive damages. However, that standard of review is limited to whether the trial court conformed to the procedural requirements of Section 768.72, Florida Statutes. Significantly, “[c]ertiorari is not available to review a determination that there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages,” and appellate courts are “not permitted to reweigh a trial court’s finding of a sufficient evidentiary basis for a punitive damages claim.” Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995); Robins v. Colombo, 253 So. 3d 94, 95 (Fla. 3d DCA 2018). Thus, certiorari relief is not available to remedy an incorrect application of the law.

Recognizing the profound impact that the granting of a motion for leave to amend a complaint can have in a lawsuit, and the narrow review available to immediately challenge it, appellate judges and practitioners have long advocated for an amendment to the Florida Rules of Appellate Procedure allowing non-final orders granting such motions to be reviewed on appeal rather than via certiorari.

On January 6, 2022, the Florida Supreme Court adopted a proposed amendment to Florida Rule of Appellate Procedure 9.130 to authorize interlocutory appeals of nonfinal orders that grant or deny a motion for leave to amend a complaint to assert a claim for punitive damages. The new amendment becomes effective April 1, 2022 and provides the following:

RULE 9.130. PROCEEDINGS TO REVIEW NONFINAL ORDERS AND SPECIFIED FINAL ORDERS

(a) Applicability.

(1) – (2) [No Change]

(3) Appeals to the district courts of appeal of nonfinal orders are limited to those that:

(A) – (F) [No Change]

(G) grant or deny a motion for leave to amend to assert a claim for punitive damages.

Permitting litigants to appeal non-final orders granting or denying a motion for leave to amend to assert a claim for punitive damages is itself a game changer to Florida civil practice because: (i) it will afford defendants greater protection from financial worth discovery and uninsured losses; (ii) appellate courts will no longer be constrained by a narrow standard of review; (iii) litigants will be able to obtain a preview as to whether the weight of the evidence supporting a punitive damages claim is sufficient or insufficient, and (iv) litigants will be capable of challenging a trial court’s incorrect application of the law.
The trial and appellate attorneys at Lydecker LLP have extensive experience litigating punitive damages claims in personal injury, product liability, and commercial cases. Therefore, we have the knowledge, insight, and experience to ensuring proper record development in pending cases and effective strategies for prosecuting and defending appeals of orders granting or denying leave to amend to assert a claim for punitive damages. In addition to preserving pertinent issues for appeal, a well-developed record is essential to evaluating an insured’s potential exposure and the settlement value of a case.

For more Appellate Practice expertise, or to reach our Appellate Practice department, contact Forrest Andrews.

Given the chance to chat about his Hispanic roots and how they have shaped his career, Lydecker shareholder Carlos de Zayas has plenty to discuss.

Born in Havana, Cuba in 1950, de Zayas’ parents immigrated to the United States – New Jersey specifically – in 1961, with only $10 to their name and a brimming hope for a better life. De Zayas worked part-time as a young man to afford school in New Jersey, eventually enrolling at the Newark campus of Rutgers University as an undergraduate – now one of the most diverse campuses in the nation. He says Rutgers-Newark was a tremendous help. “Tuition was under $500 per semester at the time. All of us commuted by bus to college and lived at home. Without that kind of affordability, a lot of Hispanics and other minorities who have succeeded today would never have received a post-secondary education.”

In 1972, de Zayas enrolled in the Minority Student Program at Rutgers Law School. “Rutgers is a pioneer in the advancement of minority communities. They have it figured out,” says de Zayas, who carries himself with a soft-spoken, yet confident tone.

While at Rutgers, de Zayas was fortunate enough to land a position as a Student Assistant at the law library, where he acquired invaluable legal research skills. In 1974, after his second year of law school, he took a summer position as a law clerk at a small firm in Miami – coincidentally owned by two of the few Cuban-American attorneys practicing in Miami at that time.

“I always knew I wanted to be a lawyer in Miami. It’s the closest one can get to Havana,” jokes de Zayas.

“There were only enough Cuban-American lawyers to fill up a living room. Literally,” notes de Zayas. These gatherings in the living room eventually became more organized, and de Zayas became one of the first members of the Cuban American Bar Association, which now has chapters all over the State of Florida – including at top universities.

It was while working at this small firm – in the age before the Internet and smartphones – that de Zayas found himself spending much of his time doing case research at the University of Miami Law Library, where he met Mario Goderich, the Law Librarian at the time. Goderich took the time to walk de Zayas through the resources available at the library – a “post-graduate education” de Zayas still appreciates to this day. Goderich went on to be a Workers’ Compensation judge, then a Circuit Court judge, and finally a judge of the Third District Court of Appeal.

It was also at this first small firm, right out of law school, that things began to brew for de Zayas and his eventual position at Lydecker, LLP. The firm was run by prominent Miami lawyer Alfredo Duran, who was, at the time, campaigning for a seat on the Miami-Dade County School Board. His campaign manager was a young Democratic hopeful named Manny Diaz. Diaz and de Zayas became friends, supporting each other’s careers, and eventually becoming partners in 1992 along with a third lawyer, Juan O’Naghten. Kendall Coffey eventually joined the firm, who then hired a young associate by the name of Richard Lydecker, and the rest is history.

One of the most notable cases of de Zayas’ career was without a doubt the Elian Gonzalez case in the year 2000. Elian Gonzalez was a six-year-old boy from Havana, Cuba, whose mother drowned in an attempt to make it to the United States from Cuba on a raft – with Elian, who survived, in tow. Elian’s family in Miami fought for his right to remain in the United States, while the boy’s father in Cuba demanded he be returned to the country. Elian Gonzalez became a household name for Cuban-Americans in Miami, and a symbol of the long-since soured relationship between the United States and neighboring Cuba. The media frenzy that ensued eventually led the case to the Eleventh Circuit Court of Appeals, which upheld the Clinton Administration’s determination that the boy was to be returned to his father.

“As Cuban-American lawyers, we felt the need to be involved with this case,” remembers de Zayas.  A perfect chance to serve the Cuban-American community in Miami – exactly what De Zayas dreamed of doing as a student in the Minority Student Program at Rutgers University all those years ago. 

On his American schooling, de Zayas recognizes and acknowledges his good fortune, but equally recognizes the opportunities extended to Cuban-American lawyers educated in Cuba:

“In 1973, Cuban-Americans lawyers who had completed their legal educations in Cuba and wished to be licensed in the United States were offered an option by the Florida Supreme Court and the University of Florida to attend law school on a part time basis, and then sit for the Florida Bar Examination. For 21 months, UF Law professors traveled to Miami to teach classes to the Cuban-American lawyers who resided in South Florida. The language barrier alone was enough to discourage them, but many persevered, made the transition from a civil law system to a common law system, were certified to the Florida Board of Bar Examiners, passed the Bar Examination, and were admitted to practice in Florida. The Florida Bar and Supreme Court were pioneering, generous and enlightened, and we owe them a huge debt of gratitude,” says de Zayas.

De Zayas does remember some of the attitudes with which he and other Cuban-American lawyers were met in the earliest days of his career – the days when some others in the room would second-guess him simply because he was not only young, but was Cuban-American. The days when he and his fellow Hispanic attorneys, even in a courtroom practicing their profession, were treated by some as a bit less “valid.”

“There was a sense among a few that our roots made us less competent. To some, a Hispanic surname indicated a weakness. This was, fortunately, by far the exception and not the norm, since the Florida judiciary and the Bar as a whole were exemplary in accepting us, supporting our efforts, and extending us the opportunity to succeed. But for the few who held those attitudes, we put those to rest very quickly,” notes de Zayas, cracking a smile.

On the topic of Lydecker, LLP as a firm, de Zayas holds glowing reviews about the firm’s ability to create an accepting and inclusive working environment.

“Lydecker is a microcosm of the United States. We are loaded with people of all races, nationalities and backgrounds working together. This is a place where, if you show up willing to learn and put in the hard work, anyone can rise to the top, regardless of your background,” remarks de Zayas, beaming with pride at the firm he helped build.

We at Lydecker are proud to tell Carlos de Zayas’ story – and the stories of so many other hardworking members of the Hispanic community who have worked diligently to further the community as a whole. Felicidades!