Basics of Legal Research

As the number of Florida pro se litigants increase, so does their need for research tools. Since pro se litigants are nonlawyers, with little or no knowledge of the law, access to understandable easy to use resources is vital. Many pro se litigants are low income and therefore unable to pay for a research service.

Legal research is rarely easy or straightforward. Because American law stems from many sources and develops in complex ways, thorough legal research requires technical proficiency. And because the law is dynamic and often unclear, thorough legal research also demands creativity and careful thought.

Many consumers can easily locate Florida Statutes when beginning their research, but identifying the issue first may be more daunting. Florida Statutes can be pulled up online as simply as entering the search string - Florida Statutes online - into your favorite search engine. However, the statutes themselves are not intuitively searchable, and its difficult to know what you're looking for until you find it.

Narrowing the search from the outset will help bring results that are more useful and less daunting than a more general search. For example, suppose you were a residential tenant and you had received a three day notice to pay or quit. But, you, the tenant, did not want to pay because the landlord had promised repeatedly to fix the roof, air conditioning, and the hot water heater and had never done anything. How can a tenant find guidance, (assuming the tenant cannot afford an attorney and does not qualify for legal aid)?

Many consumers will immediately take to the net to find answers. Some question and answer sites have good answers and some don't. Finding the statutes could be a good starting point. For that issue, use the search string - Florida Statutes online landlord tenant - and you'll arrive at Florida Statute Chapter 83 in its entirety. This is a lot to wade through, and it is a better idea to do some general research first to familiarize yourself with landlords and tenants rights and responsibilities.

Read some articles from authoritative sources. Authoritative sources are official government sources like the Florida Bar site, or the Department of Agriculture and Consumer Affairs.

https://www.floridabar.org/tfb/TFBConsum.nsf/0a92a6dc28e76ae58525700a005d0d53/e21a25a8c288bed98525740800537588!OpenDocument

http://www.freshfromflorida.com/Divisions-Offices/Consumer-Services/Consumer-Resources/Consumer-Protection/Publications/Landlord-Tenant-Law-in-Florida

In reading these articles you may learn under what circumstances a tenant is allowed to withhold rent and why. Spending time collecting facts, learning the vocabulary, and then analyzing the facts will save hours of time spent on dead end research. Many beginning researchers can find the governing laws, statute, or ordinances, but struggle to find out how to apply them. The actual procedure is often the most difficult part in practical terms. These two broad areas of law are referred to as substantive and procedural.

In our scenario, about the tenant having been served with a Three Day Notice to Pay or Quit, the researcher will soon find out through reading articles and Florida Statutes, that a tenant can withhold rent if his rented dwelling is uninhabitable. The researcher, may then wonder, what exactly is considered "uninhabitable"? Is having no air conditioning in July in Florida considered legally "uninhabitable"? We all may well agree that no A/C is torture, but the law doesn't say so. In fact, Florida landlord tenant laws demand that a dwelling have heat, but air conditioning is not a requirement for habitability. Hot water and a non-leaking roof are generally considered requirements for a habitable dwelling. See 83.51 Landlord’s obligation tomaintain premises.— for more information.

If a residential tenant needs to withhold rent because the landlord won't make necessary repairs or if the dwelling is uninhabitable, the rent should be deposited with in the registry of the court. And the tenant should have notified the landlord in writing previously and the landlord failed or refused to make things right. If the tenant has placed the rent in the registry of the court, and the judge finds that the landlord has neglected his obligation to maintain the property, the judge can then decide how the rent money should be disbursed.

Exact procedures for withholding rent can sometimes be found on the clerk of court's website (depending on the county). Pinellas Counts provides some good information and forms for landlords and tenants. Notes on the form for withholding rent state:

A Tenant cannot withhold rent from the Landlord without sending notice and allowing the Landlord time to cure the non-compliance, violation, or default of its obligations. Failure to send the required notice to th e Landlord has significant impact on a Tenant’s rights under the rental agreement and Florida Statutes. If the non-compliance is not remedied within the time period specified by statute (or such longer time as may be granted in your written rental agreement) and the Landlord’s failure to comply renders the dwelling unit untenantable and the Tenant vacates, the Tenant may vacate and withhold all rent, or, if the failure to comply does not render the dwelling unit untenantable, rent may be reduced in proportion to the loss of rental value caused by the non-compliance. If the Landlord’s violation of its obligations is not remedied, but the failure to cure the non-compliance does not render the dwelling unit untenantable, the Tenant may remain in the dwelling unit and the rent shall be reduced, until the violation is cured, by an amount in proportion to the loss of rental value caused by the failure to cure the violation. In any legal proceeding, however, the Tenant will have to pay all past due rent, and rent as it co mes due during the legal proceedings, into the registry of t he Court. The Tenant should, therefore, deposit all rent as it comes due in a separate bank account until the Tenant's disputes with the Landlord have been resolved.

For the text of Florida Statute 83.51(1), and the grounds for withholding rent, see the note to Form 3. SOURCE: Sections 83.56 and 83.60, Florida Statutes (2007).

Legal information can be found in many places. Diligent and persistent search pays off when you find the answers to troubling legal questions. Keep an open mind, frame the issues, and remember there may be more than one right answer to any legal question.

Things Can't Hug You Back

I will never to my dying day embrace the idea of keeping up with the Joneses, conspicuous consumption, and all that this includes. Rather, I fully understand the maxim that - money won't buy you happiness. I do not know why some people are perfectly comfortable with rocking the newest iPhone and also struggle to pay the rent. In a world where people need to borrow $400 for an emergency, how can those same people bring themselves to pay $1000 or so for a phone?

Take this one telling statistic: "About 46 percent of Americans said they did not have enough money to cover a $400 emergency expense. Instead, they would have to put it on a credit card and pay it off over time, borrow from friends or family, or simply not cover it at all." (Mui, 2016)

The Federal Reserve report that the Washington Post article is based on uses data from 2015, and was published in 2016. Maybe the overall economy improved in 2016 enough to lower that 46%. We should find out soon. Still, $400?

I checked prices for a new iPhone 7, and its true, once you buy the accessories, some of which are essential, your bill is up to around $1000. And, then there is the monthly on top of that. I find it endlessly interesting that the search analytics on www.faldp.org show that around 38 - 40% of the site users accessed the site through an iPhone and also that the word "indigent" is within the top 15-20 search strings used to find the site. Does that mean that a lot of indigent people have iPhones? I don't know for sure from that data, but it seems to be a reasonable assumption.

I learned early in life that even people that are financially comfortable can make a total mess of their lives. Poverty not required. The Happiness Studies claim that the magic income number is $75,000. per year. I maintain that - it depends. Cost of living varies drastically place to place. So $75,000. in a rural town may buy a nice home with acreage and leave plenty left over for private schools, new cars, vacations, etc. On the other hand, life in a big city on 75k a year may be financially difficult, especially with a family. But, their point is well taken. That after a certain income level happiness does not increase much as income increases. http://aplus.com/a/75-year-harvard-grant-study-happiness?no_monetization=true

My early lesson in life was my parent's divorce. I'm way past caring that they were divorced, but that event changed my life forever. I would say, changed me for the better. Early life lessons are not easily forgotten. I was eight. Our family was financially comfortable until then. I didn't really know or think about it, I grew up that way. My brothers and sisters and I all went to private schools, we had horses, we had an extra 10 acres to keep the horses, we lived in a 5,000 square foot house on the river, we had a tennis court in the yard, we had a housekeeper. Comfortable.

After my parents' divorce, dad re-enlisted in the military, married his patient, took a huge pay cut, and my mother could not afford to keep the house. She was court ordered to sell it. And she did. The private schools went on for a while after the divorce. I'm not sure if it was scholarships, kindness, or if someone paid. Everything else went. We moved to a three bedroom apartment. My two sisters and I shared a room. My two brothers shared a room. And my mom had her own room.

I saw with my own two eyes that my parents despite having everything had no idea how to be happy. Despite having all the material things that go with success they were not able to make themselves happy. Their divorce was acrimonious and awful.

Although the sudden shock of not having the things and privileges that I had before the divorce hit hard. The effect did not last. I learned early on that it was up to me to make myself happy. To do the things that would make me feel good. And to never depend on anyone else for my happiness. My happiness is my own responsibility, completely independent of anyone else.

I think some people go a life time without ever learning that. I can thank my parents for teaching me that as a child. A lesson they didn't mean to teach ... but they did.

Throughout my life I have never put a lot of importance on material things. All I've ever wanted in a vehicle, is one that looks presentable and dependably gets me from point A to point B. Likewise for the house I choose, looks presentable, affordable, low maintenance, and comfortable. Clothes are the same, I don't think I've ever gone out of my way to buy a designer thing. I honestly don't care.

A family member is the opposite. He only wears Ralph Lauren, is obsessed with his luxury vehicle, and does not understand how I can be the way I am. He is also the absolute unhappiest person I know. And, yes, he has the iPhone 7. He's tried to convince me to buy one, but I don't see the point. He has tried for years to get me to understand that people judge me by what I have. I frustrate him to no end, because I don't care. I have even explained that if a friend were to judge me or like me better because of what I have, then that's not a friend I want to keep. I have no place in my life for such superficiality. And if a stranger judges me for not wearing designer clothes, or not having an expensive car, then I don't care at all. I don't even know the stranger, so why would I possibly care?

I don't know if we chalk our differences up to generational influences. My materialistic family member is 30 years younger than me, so he is within that broad group called Millennials. Born in 1986. He grew up watching TV with plenty of commercials. The internet is awash with advertising and offers. Today, we have people who are famous for being famous, and for having money. Paris Hilton. Kim Kardashian. Nicole Richie.

It could be that the differences in our attitudes towards acquiring things is simply a personal difference. Surely there have been acquisitive people throughout the ages, people that flaunt their material wealth. We can go Biblical, Mark 10:25 "It is easier for a camel to pass through the eye of a needle, than for a rich man to enter the kingdom of God." Or look to pop culture, "Diamonds are a Girl's Best Friend", sung by Marilyn Monroe in the 1953 film, "Gentlemen Prefer Blondes". The Madonna hit, "Material Girl" was on her "Like a Virgin" album released in 1984.

I do know that things don't make you happy. Once I told my acquisitive family member this simple fact. Things can't hug you back. I hope one day he'll listen. So far, he reacts with anger if I say anything like that. It must be lonely for him.

We are Americans ... We are Immigrants

Most Americans don't have to look very far back in their family history to find an ancestor who immigrated to America. With the exception of people who are full blooded Indians and people whose ancestors were captured and brought here as slaves - our ancestors immigrated to America. All came to find a better life, to flee from war, to find more prosperous land, to find more freedom.

I look back at my heritage, only three generations on my mother's side, and I don't really know on my father's side when my people came here. My great grandmother on my mother's side was full blooded Indian, Cherokee I have been told. My great grandfather was Dutch, a farmer in southern Illinois. I gather from my mother's stories that my great grandmother, Dora, passed as white. It was not the done thing for a white man to marry an Indian woman. According to my mom, Dora's brothers, Mom's uncles lived in houses in the woods somewhere and mostly hunted and trapped to survive. One of them was a horse trainer. And one of them looked just like the Indian on the Indian head nickel.

The only thing I know about my father's side is that my grandfather was a country doctor in west Texas, San Angelo. He would make house calls in the rural areas, and sometimes be paid with livestock rather than cash ... chickens and pigs. I have no idea when my father's people came to America. His last name, my birth name, was Chambers. A proper English name. Cameron is a family name on my father's side, derived from the Scottish Cameron Clan. And somewhere in my father's family history is Irish also. My father was a veteran of World War II, and his father fought in World War I.

My ancestors on both sides came to America for their own reasons, reasonably to find a better life. They did not come as refugees, they came for the opportunities available in a young country.

The United States only dates back to 1776. Colonists, pilgrims, and explorers came earlier. Few Americans can trace their family history back more than a few generations as having lived in America. We are immigrants. Me, born in Texas, raised in Florida, date my family history back only three generations.

I don't understand how Americans so begrudge immigrants who come here wanting a better life. We all want a better life for ourselves and our children. I can't understand how the descendants of people who fled the World Wars can seek to block those who flee the current wars. And I will never understand, how any American can be so threatened by people entering this vast wonderful country in search of a better life.

Unauthorized Practice of Law - Another Point of View

I have an idea for illustrating the absurdity of the current tenor of enforcement against the “unauthorized practice of law” in Florida. It will probably never convince the Florida Bar to let up on the persecution of legal document preparers, but it might make some people realize just how hypocritical the Florida Bar is.

As I learned firsthand from a recent lawsuit against me, law is a complicated field. It has many specialties. When I needed to hire an attorney in another state to help me with that lawsuit, the first law office I called directed me to the local “expert” attorney in that particular specialty field of law. In that small jurisdiction, he qualified as the local expert in that specialty area because he had successfully prosecuted a case all the way to that state’s Supreme Court. It makes some sense: If you have an auto accident, you would probably do better if you had an attorney who specialized in auto accident cases. (To further illustrate my point, I’ll refer to the tort I was sued for generically, as “Tort X.”)

When my plaintiff lost in his home state and sued me in Florida, he tried to bolster his case with references to another Tort X lawsuit that had certain parties I’ll call Jones vs. Mackey. Something that happened in that case is instructive. The Plaintiff, Jones, didn’t hire an attorney who was a specialist in Tort X. He hired an attorney who had spent his career on cases involving real estate foreclosures.


Why? I don’t know. I’m guessing no attorney who specialized in Tort X would take what was obviously a lousy case. But I’d like to argue that, if UPL is going to be so strongly prosecuted, then UPL should be expanded to include attorneys like Jones’ who practice a type of law outside their range of expertise and experience.

And why shouldn’t such an attorney be prosecuted just as violently as the Florida Bar prosecutes legal document preparers? By practicing outside their expertise, attorneys like Jones’ are exposing their clients to exactly the same risks that the Bar claims legal document preparers are exposing their customers to. Would you see an ear, nose and throat doctor for an ingrown toenail? Of course not. A wise ENT, except in emergency, would give you a referral to a podiatrist. An attorney who did not do the same should be prosecuted for it.

Maybe what the Florida Bar needs is a taste of its own medicine.

Guest Blog, published with permission from the author, Jim Holding

The Pro Se Challenge - Accessing the Court System

As a pro se litigant, I recently experienced a frustrating (and expensive) example of the sort of barriers a pro se litigant can encounter. I discovered that court systems are not designed to aid the pro se litigant in filing their paperwork, and a clerk of court’s staff are often far from helpful.

In 2015, I was sued by someone in a state on the other side of the country. Other attorneys in his area referred to him as a vexatious litigant, and he filed all his lawsuits pro se and in forma pauperis. He had never won a lawsuit.

My background is in research, and I once managed a law library. So, I was able to defend myself, and I prepared a defense based on lack of personal jurisdiction.

Unfortunately, the court system this man lived under was still in the 1990s technologically. There were many obscure rules, and many forms for filing documents that were unique to that court. Half the time I called the clerk of court to ask a question, and either the person I needed to speak to was “out of the office,” or the person I spoke to had no idea how to help me. To make matters worse, this court system just happened to be implementing new scheduling software, which caused even more problems as members of the clerk of court’s staff became unavailable because they were “in training.” I left messages, and did not receive calls back until literally the last minute I had to do my paperwork.

There was also no system set up for full electronic filing. I could send a copy to the clerk’s office electronically, provided I went through an obscure registration process. However, I was still required to “snail mail” copies to the judge. Barney Fife obviously served as clerk of court in this county!

I filed a motion to dismiss, only to discover that I had filled out a form incorrectly, and my dismissal hearing was not properly scheduled. I became so concerned about not being able to communicate with the clerk’s staff that I hired an attorney in the other state. In the end, because of various actions by the plaintiff, it cost me $21,000. It could have cost more. Thankfully, the attorney I hired recognized that I was competent at legal research and allowed me to do research for him on personal jurisdiction. That saved me $1500. (The judge, by the way, awarded me those attorney fees after everything else was over with.)

The attorney used the same arguments I used in my motion to dismiss, only adding a few points from that state’s case law. Had the court system in the Plaintiff’s state been more accessible, I could easily have handled these matters myself. The end of this affair proves it: After the Plaintiff lost to me in his home state, he tried to sue me in Florida – and I defeated him for no more than the cost of postage and copies..along with a small payment to a helpful legal document preparer!

Guest Blog - published with permission from the author, Jim Holding.

Interesting times ...

These are interesting times. I've lived through interesting times before. I'm old enough to remember the Cold War, and experienced those times from a child's point of view. During the Cuban Missile Crisis we each had emergency rations at school and an evacuation plan to board a freight train to take us to (of all places) the Castillo de San Marcos in St. Augustine for refuge. My dad had a bomb shelter built in our yard with four foot thick steel reinforced walls. Mom said she could never see the point ... if the world is blown up why would you want to be alive anymore anyway. We used it only once, and that had nothing to do with bombs, rather a hurricane that caused a tree to fall right through the living room. We evacuated to the bomb shelter and spent the night. Ran through the orange grove and down into the shelter during the eye of the storm.

Those were tense times. Even though I was only young, I remember dinner table conversation about the missiles being aimed straight at Florida, the Cape, or maybe Jacksonville because of its military presence. We were in Jacksonville. And the fall out would contaminate everything, infect the food supply, if the blast didn't kill you.

The Vietnam era was yet another interesting time I remember. My parents had split by then, and I was a teenager. Dad had rejoined the military as a high ranking officer. Navy Captain. Psychiatrist. Stationed in Japan. I went to live with him and my stepmother there. We lived on base in officer's housing. Dad was second in command of the base. On one trip overseas, flying military space available, we stopped in Saigon. It was some time in 1970. I remember the tension in the airport, the personnel coming and going, the uniformed officers talking in tight groups, the smoke filled waiting room, my dad ordering me and my sister to stand right by his side and don't move, the tension that you could inhale.

Over the next year or so the U.S. was in the process of pulling the troops out of Vietnam. A lot of them came through our base, as it was a hospital base. Anti-war protests were going strong back in the states. A fact I knew only on the periphery. The Japanese protested against Americans. They held protests right outside the main gate. They were polite about it, always sharing their protest schedule. Easy to avoid. My dad was involved in signing discharge papers for the enlisted that served in Vietnam, doing their psychological exams before release from duty. He'd talk about it. I think he had many enlisted dishonorably discharged due to drug use or addiction during their service in Vietnam. Dad had a particular and personal hatred of anyone who used illegal drugs. I felt sorry for the men he dishonorably discharged for drugs, or maybe court martialed. After all, most were drafted, thrown into a war they didn't support. And drugs were plentiful. Maybe not an excuse or reason, but my dad didn't have to go out of his way to ruin lives. I know that he did.

We came back to the states to Southern California. The Nixon administration was full bore crash and burn. The Pentagon Papers. G. Gordon Liddy et al. Watergate. I feel we are in a time machine. Back again to the early days of the women's movement. Back again to a politicized populace and people marching in the street. Back again to turmoil. Interesting times.

Proudly Serving the Under Served

I am grateful for the privilege to do what I do. I serve consumers who would otherwise go without. I help people who have no choice but to stand up for themselves. I prepare documents for those who have no idea how to proceed. I am a Florida legal document preparer. "Proudly serving the under served." appears on our association site. And I mean it, it is not just a catchy marketing phrase. It is what we do. I am proud and humbled at once.

Couples break up. Neighbor sues neighbor. Disputes fester. Solutions are elusive. Most people want things to be fair, even while acknowledging that the world isn't fair. We've known that the world isn't fair since we were children, but still wish it were so. Wishing isn't getting, but we can try. Try for that reasonable and fair solution. The compromise where no one is completely happy, but no one feels trod upon.

Rental leases, cell phone contracts, car rental contracts, insurance, employment contracts, non-compete agreements, bills of sale, promissory notes, pet care agreements, construction contracts, powers of attorney, and licensing agreements are just a few of the contracts that consumers use and sign, often without an attorney. In fact, most of these types of contracts are usually signed without an attorney looking out for the signer's best interest. Few new hires would refuse to sign an employment contract until an attorney had a chance to review it. And, it would likely be less than cost effective to have an attorney review and approve a cell phone contract prior to signing.

But, when a marriage deteriorates. Or business partners disagree. Or an arrangement that once worked becomes unbalanced. Or when the powerful prey upon the weak. And there is no compromise in sight, the dispute lands in court. When property, money, and children are at stake - somehow, some way, the dispute needs resolution. Even if that means taking it out of the hands of the disputing parties to let a judge decide.

It is always always always better to resolve disputes without judicial intervention, as long as the solution does not leave the weaker party weaker still. And there's the rub. It's hard to know. Presented with a settlement agreement or contract, for example, how does a layman have any idea whether he should sign? It may seem to say that the agreement is reasonable, but maybe there is also some language that doesn't make obvious sense. Then what? Research, education. Ask for clarification and/ or lawyer up, I guess.

Document preparers encourage their customers to seek legal advice when they do not understand their rights. We encourage consumers to consult with an attorney and ask for advice regarding their rights and responsibilities. We also encourage consumers to educate themselves about their rights and responsibilities. We are here to prepare documents once a consumer knows their rights and responsibilities. And then once the documents are prepared, we then encourage consumers, to have an attorney review the documents. Whether a consumer can afford an attorney or not, depends entirely on that consumer's specific financial means.

And even as we encourage consumers to seek legal advice, we know that many will not be able to afford the fees. We are not part of the problem, but we certainly aspire to being part of the solution.

Please complete our FALDP Pro Se Survey. Thank you!

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orida Association of Legal Document Preparers