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Emerging Litigation Podcast
Resolving Business Disputes Without Burning Bridges Featuring Judge Alan Fine
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- [00:01]
A
And it's okay. Do you want me to call you Judge Fine or Alan or which I usually I default to Judge Fine. I think most people do that.
- [00:07]
B
It's my new first name, Judge leaving the bench. People say dmv. I said as long as people keep calling me Judge, I'm fine with not being a public servant.
- [00:17]
A
Yeah, I wonder what Judge Reinholds. Welcome to the Emerging Litigation Podcast. I'm your host, Tom Hagee. Today's episode, we're going to call it Resolving Business Disputes Without Burning Bridges. Strategic insights from Judge Allen Fine. There's no way we're sticking with that. Just way too long. But that does kind of set the stage for you. In this conversation, retired Florida Circuit Judge Allen Fine shares his approach to resolving business disputes and ways that preserve relationships rather than destroy them. Drawing on he's got decades of experience in commercial litigation, arbitration, and mediation, Judge Fine explains how companies like suppliers and buyers can navigate conflict with an eye toward the future, that is protecting partnerships and reputations while avoiding scorched earth tactics. He discusses the challenges posed by attorneys who default to a warrior mentality and how conciliation, not confrontation, can often save a valuable business relationship. Judge Fine also explores the growing use of private judging programs across the US including there in Florida, California, Texas, and how these programs offer speed, confidentiality, and subject matter expertise that traditional courts often cannot. Judge Fine served on the Florida 11th Circuit from 2013 to 2023, presiding over juvenile, criminal, civil, and complex business litigation. Before that, he practiced domestic and international commercial litigation and arbitration for nearly 30 years. He's a graduate of Princeton University. I've heard of it. And the University of Florida Levin College of Law. Now he serves as a mediator and arbitrator with Private Resolutions, Inc. Where he handles sensitive and high profile disputes recently involving parties such as Donald Trump. You've heard of him. Facebook and ABC News. You've heard of those as well. We'll cover how parties choose between arbitration mediator, how to work with aggressive attorneys, and what private judging really means, including its benefits, limitations, and impact on appeals. And now here's my interview with Judge Allen Fine. And he was fine with me calling him Judge Fine. That's just hysterical. He's never heard a play on words on his. On his name, ever. Anyway, here is my interview with Judge Allen Fine. He was an excellent guest. I hope you enjoy it. Well, Judge Fine, thank you for being on the Emerging Litigation podcast. It's great to have you here.
- [02:35]
B
Thank you for asking me to be part of it. Appreciate it.
- [02:37]
A
Terrific. Before we get started, why don't you just say a little bit? Now I've read your bio, I've kind of introduced the topic. Why don't you tell us a little bit. Anything else about you you might like to share about your past? Is this what you wanted to do when you grew up and etc.
- [02:50]
B
My first year out of law school I clerked for a federal district court judge and back in 1983, 84. And since that time I wanted to be a judge and I finally had the opportunity about 12, 13 years ago.
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A
Great. So that experience got you engaged. So we're talking about preserving business relationships and in litigation you think about people in a major dispute that they would no longer necessarily associate but in the business world that can be harmful to everybody. So parties want to win and, but the relationship can be more valuable I guess than winning. But why don't you talk to us about that, talk to us about preserving business relationships.
- [03:30]
B
So some disputes are between ongoing business partners either and they can run the whole gamut from very integrated businesses to occasional transactions. And some disputes are at the end of a relationship. So as a, as a professional neutral, what I try to figure out is whether or not there is a possibility of preserving future business and if so, guiding. If I have the chance to guide the parties in their choice of dispute resolution mechanism, that's, that's what I can be helpful with at the very outset. Sometimes the, the council are both, both sides or all sides if it's a multi party dispute, are attuned to the goal of preserving a business relationship. But not always do you start that.
- [04:18]
A
In the conversation initially that you know, kind of setting the objectives like you know, we want to, we want to win or we want to reach a conclusion resolution where we can continue to work together.
- [04:29]
B
I'm usually contacted because they something specific in mind, either mediation, an arbitration, a private judging or sometimes I've been hired to do a mediation that modifies into an arbitration where the parties already know in advance that they want a binding decision if they can't reach an agreement and that that's a little ethically challenging but with appropriate disclosures and communication you can make that work as well. So it, it depends and after I start talking to the parties, sometimes I'm able to recommend a different way of approaching what they thought they were going to do and, but I'm always, it's always subject to the party's agreement. I can only make suggestions and then they have to decide.
- [05:08]
A
Sure. So for those who don't know how do you choose between arbitration? Mediation and litigation are in a dispute.
- [05:16]
B
That'S governed by a contract, it will often provide for arbitration. Sometimes it requires mediation before going to arbitration, sometimes it requires mediation before going to litigation. And sometimes it just channels people into federal district court. But the important point here is whatever was agreed to before is always subject to a new agreement. So the parties can choose to mediate first, choose to arbitrate instead of litigate, or vice versa or, or do some private judging option depending on the state they're in.
- [05:48]
A
Okay. Now attorneys, like people are all ties and some, some may default to aggressive tactics. So how do you, how do you deal with that?
- [05:58]
B
Well, you know, there's litigators and lawyers, both are different subspecies of the general dispute resolution portion of our, of our profession. And I think the distinction, or as I understand the difference, litigators have a vast amount of experience in the pre trial process and don't go to trial very often. And so they're experts in the discovery phase and motion practice and so on. And trial lawyers are always thinking about how is this case going to be tried? What am I going to do at trial? What's the other side going to do at trial? They shape their pre trial decision making with the trial in mind. So taking a cue from that strategy, the question that I always ask is what are your objectives at the end of this process? So that's where, whether they come to me for mediation or arbitration. Now mediation I can talk to each side separately, but in an arbitration or private judging, you can't have ex parte communications. So they're fundamentally different procedures with different ethical constraints. But you know, I try to encourage people to mediate, whether it's with me or somebody else. If they come to me for an arbitration, I ask them if they've mediated the case yet or the dispute yet.
- [07:14]
A
Okay, so next, let's get it, let's get into private judging. So I want to ask you, you know, first of all to define it. Then we can get into things like confidentiality, efficiency, appeals and things like that. So first, briefly describe private judging. What is it?
- [07:27]
B
So at least 30 states now have a statutorily authorized procedure for resolution of a public dispute by a privately selected judge. In Florida, it's called voluntary trial resolution. And our statute's been on the books for more than 25 years. New York, California, Colorado are probably the three states that have the most experience with their versions of the statute. But basically it allows parties to agree and it can only be by agreement to basically transfer the case to a judge that they select a person who they feel confident can act as their judge in the case. The statutory requirements for being a private judge are the same as being a county court judge in Florida, which is admitted to practice in good standing for five years. That's it. There's no requirement you be a former judge. And I'm familiar anecdotally with more than 20 private judge cases in Florida. I'm only familiar with one where the person was not a former judge.
- [08:29]
A
Okay.
- [08:31]
B
You just change the person. Because in Florida, the. The procedure is identical in that you keep the Florida rules of civil procedure and the Florida rules of evidence. What's different is the accessibility of your judge. You can think of it like concierge justice. You know, there's a big movement here for concierge medicine. Well, think of it as concierge justice, where parties can get their motions heard very quickly, get rulings out quickly, and then the case is specially set for trial. You're never on a trial calendar with a lot of other cases, which means like an arbitration. When you select your dates, those are the dates because you've made a deposit for those dates, and it's not going to get continued because of any other case activity.
- [09:12]
A
Gotcha. Okay. Concierge justice. That's a good way of putting it. You also don't absolutely have to be a judge, but I don't know what made me think of it. Is it still true, do you think that you don't have to be a judge to be on the Supreme Court or a lawyer? You don't have to be a lawyer to be on the Supreme Court?
- [09:27]
B
Yeah, well, there have been justices appointed, never served as judges, so.
- [09:32]
A
Yeah.
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B
Yeah, I. I can't imagine. Maybe I'm just have a person. Maybe I'm a person of limited imagination, but I can't imagine anybody getting confirmed.
- [09:43]
A
Yeah.
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B
By the Senate who's not been a lawyer.
- [09:46]
A
Right. Okay. So talk about confidentiality. I think this is an interesting point where you might have. Might be addressing sensitive business matters. Maybe you want to stay off the public record. I don't know if that's. Is that an advantage? But talk to us about confidentiality in this case.
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B
So. Well, the fundamental difference between an arbitration and private judging is the privacy of the arbitration and the confidentiality of it. Everything happens outside the public purview, Whether you're with an established organization like American Arbitration association or JAMS or one of the other ones, or if you're just administering it as a private arbitration, they are confidential, and the result is Confidential, unless one side has to confirm the award in order to enforce it with a judgment. If there's no cooperative compliance with the arbitration award, that's the only time an arbitration becomes public. Okay, Private judging is by law in California.
- [10:42]
A
Public.
- [10:43]
B
All proceedings are public. The statute is not specific on that, but I think it requires it should be public. And we have a proposed revision to the statute that's going to go before our legislature in Florida in the next session that does make it explicit that the proceedings are public. If the parties have a need for confidentiality, then arbitration is the dispute resolution mechanism. They need to choose as between arbitration and litigation. The litigation, whether it's private judging or public, is public. We call it private as a. As a shorthand for voluntary trial resolution. Mediation, of course, is also confidential. There are laws about the confidentiality of the mediation, and parties that speak during a mediation cannot be asked what they said if the case doesn't resolve.
- [11:34]
A
Okay, so you mentioned a couple of things like things don't get continued, etc. What are some of the other efficiencies of private judging?
- [11:43]
B
Well, since the parties get to pick their judge, they can often pick someone who has subject matter expertise. Also presumably considerable experience with litigation and judging, so they know what they're going to get in advance. Basically, when a motion is filed, the party filing the motion can seek a hearing which can be heard as soon as the response time. And if there's a right to a reply as soon as those time periods are passed, the hearing can be set in advance for the end of the response and reply periods. So you can have your hearing within a matter of weeks, you know, sooner if it's an emergency or if the parties agree to have it heard earlier. Because you're not competing with a public docket. You know, your judge doesn't have 1500 or 2000 other cases that are taking their time. So you have your hearings more quickly. Presumably you get your rulings more quickly and often authored by the judge, him or herself, as opposed to the parties where judges sometimes ask both sides to prepare a proposed order and then pick and choose, presumably from what's in the order to conform with the ruling the judge has made or will make. But the other thing is the trial docket. It's a real frustration in practice to be on a trial calendar with 30 or 40 other cases and you don't know until calendar call where you are in that list, and you don't know until the trial period starts whether you're going to go or not. If you're number two or three, you have to prepare. But then sometimes things happen and judges are not available. Or the first case, instead of taking a week, takes the entire trial period, and then you get rolled over for a few months. So it's like, hurry up and wait. Get all ready to go, and then, you know, the deflation. So it's. It's very expensive.
- [13:28]
A
Yeah.
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B
To gear up like that and then.
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A
Not go like flying standby.
- [13:33]
B
Because you can't just freeze your preparation and then pick it up in three months. You have to dust it off, get back into it, check. There's just a lot of work that has to be redone. And so it's very inefficient.
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A
Yeah, gotcha. That makes. That makes sense. So what about appeals? Do parties have the same opportunities to appeal if they are unhappy with the outcome?
- [13:55]
B
In a private judge case in Florida, you have the right to appeal any of the substantive rulings, any of the legal rulings. Currently there's a. Currently the statute provides that findings of fact cannot be appealed. And we, in our, in our proposed revision, we get rid of that distinction to make it exactly the same appeal, but for right now, when, when there's an appeal from a voluntary trial resolution case, instead of applying the competent and substantial evidence test for the evidence. In other words, was there enough evidence, competent, substantial evidence to support a factual finding? The court said it's not. The parties pick their judge, and therefore the findings of that judge are not appealable. And the only thing you can appeal are the legal rulings made as a result of that. Maybe. Certainly if there are timely objections made to evidence during the course of the trial, the appellate court could look at rulings on evidence, but not factual findings.
- [14:53]
A
Understood. Any final thoughts or key takeaways about this process, guidance you would give to parties in a dispute as they, as they consider which way to go?
- [15:02]
B
Well, I mean, I always encourage mediation right from the beginning of the dispute, because even if it doesn't resolve the dispute, it can serve as a basis to make whatever process you pick more efficient by the parties identifying what the areas of disagreement are. Because sometimes the parties think they know what the other side's issues are, and then they learn during mediation that there's something else behind the whole thing or there's some critical aspect that the other side doesn't think is so critical that, well, if we give in on this, maybe we can get the other things we want. So, you know, mediation is a negotiation. Sometimes somebody could say that, you know, arbitration or litigation is just a longer form of negotiation? I don't. I don't think so. I would say that you always have the opportunity to negotiate regardless of where. Where you are on the continuum. Arbitration, litigation, pre trial, mid trial, pre filing, mid case, courthouse steps, the jury's out. You know, you can always. You always have the opportunity to negotiate if you have a willing partner on the other side.
- [16:11]
A
So. So you've been doing this a while and I, I always like to ask people this. If you don't. If nothing comes to mind. Nothing comes to mind. But you must have favorite stories from your career as a judge. Anything come to mind that you share with people and you like to say, well, a funny thing happened in court one day.
- [16:26]
B
The most interesting stories and that are most relevant today are confidential in some mediations that I've been doing. But I'd say that the most startling thing that ever happened to me was when I was a judge on the criminal bench was the defendant, a young man was accused of, call it capital sexual battery. So it was sexual relations with a minor under 12. The two shocking things about it, one, the defendant was in Cuba when he learned about the case and that he had an arrest warrant, and he came back because he was so confident that he was going to prevail. The other shocking thing, and something that is really hard to believe, is that the victim testified that she was the aggressor. She had a very, very, very troubled life, and she wanted her mother's boyfriend to be her boyfriend. I see now, you know, he obviously did the wrong thing over and over and over, but.
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A
Right. Yeah.
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B
You know, you, you. We think of these situations as the adult grooming the child.
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A
Right.
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B
She got up and testified that's not the way this one was. I think that was the most shocking experience of my life.
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A
Yeah. I think, you know, what's. What's typical isn't always what is happening. So you always have to keep that open mind, I guess. Right?
- [17:45]
B
Yes.
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A
Okay. Anything fun up in your career, interesting? Anything fun or funny? I mean, I'm trying to think of something like when I've been doing in the conference business, I had a case where in the back of the conference room, somebody was whispering in my ear about something and it didn't sound right. She was using a word I never hear. But anyway, usually people ask, you know, what time is lunch? Where are the restrooms? But we had a flasher at a conference and he was being subtle about it. But then later the detectives. Detectives came and they came and got him. Just called me later to ask me to look at a picture and say, was this the guy in the back of the back of the room? And. And it was him. It was him. Turned out he had. He was just out of prison and somehow came to a cyber security conference, and then he went off. He abducted a woman. Nothing funny about this at all. Abducted a woman in a car with the intention of, I assume, we assume to rape her, but she beat the hell out of him. And so for her, which is, you know, good for her is right. Sadly, I'm sure it's still extremely traumatic. Anyway, they wanted to make sure they had all the facts to put the guy in. Back in prison, and off he went. But, you know, there you are, you just think you're having a little CLE conference for lawyers on cyber law and insurance, and here you get a guy like this.
- [19:08]
B
Well, they did an experiment. I don't remember which law school it was, but it's probably been replicated many times. But during an evidence class or trial procedures, it could be any class. There's a staged event that looks like it's a crime. Somebody comes in, does something, and leaves. And the experiment is, what did you see?
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A
Yeah.
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B
And what it. I believe the point of the experiment is to show how unreliable eyewitness testing testimony is. Instead of telling you something that I think was a funny story, I'd like to just tell you about one arbitration that I did. The parties were in an ongoing business. It was a significant business, and they were socially very friendly. They had a dispute, Something happened, and they couldn't agree on which side was responsible for paying. And it was several million dollars. But they. They resisted the urge to go to war and blow up their business. And it was a very valuable business with a lot of upside going forward. And so they hired me on a quick arbitration, and they, they. They didn't have an arbitration agreement in their contract, so they created one. They agreed to arbitrate. They agreed to arbitrate within six weeks, no discovery. The arbitration would be based on international rules, which is you submit a witness statement and then you put your witness up for cross examination. So we were able to do it, I'd say, in less than eight hours of actual arbitration over two days. And they got a ruling within a couple weeks. And they just. Neither side wanted to give in. They both felt it was a matter of principle, but they did understand the importance of preserving the relationship. So they didn't want to take a chance on ruining the relationship with litigation dragging out and then looking for reasons, you know, they didn't want to become enemies or adversaries. Yes, they had difference of view and it was a monetarily significant amount of money, but everybody was acting in good faith. Everybody thought they were acting good faith and said, look, let's just present all the evidence to somebody that we trust and get a ruling and we'll both look at the ruling and we'll move on.
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A
Yeah. So went through quickly and they, I assume they still doing business.
- [21:21]
B
Oh yeah, Big business.
- [21:22]
A
Good. Well, that's a good story to end on then. Well, well, Judge Fine, thank you very much for talking with me about this today. I really appreciate it.
- [21:29]
B
Thank you, Tom. Appreciate the effort on your part to make it happen.
- [21:35]
A
The Emerging Litigation Podcast is a production of Critical Legal Content, which owns the awesome brand HB Litigation. Critical Legal Content is a company I founded in 2012. What we do is simple. We create content that's critical on legal topics for law firms and legal service providers. That kind of content can be blogs, papers, they can be podcasts, webinars, and we have a good time doing it. And as for HB Litigation, well, that's the name under which we publish. Interesting. At least interesting to me. Legal news items, webinars, articles, guest articles, all on emerging litigation topics. Once again, I'm Tom Hagee with Critical Legal Content and HP Litigation. If you like what you hear and you want to participate, give me a shout. My contact information is in the show Notes. Thanks. Watching for listening.