Litigation Privilege Immunity for Presuit Communications

Litigation Privilege Immunity for Presuit Communications by Tampa Business Litigation Attorney - Jeffrey P. Lieser. Originally published on The Florida Bar Journal. Visit LiesrSkaff.com for more information about attorney Jeff Lieser.

Transcript

1. Litigation Privilege Immunity for Presuit Communications Why It’s Not Absolute Under Florida Law
2. Originally Published on (The Florida Bar Journal)
3. Introduction to Litigation Privilege
4. Definition: A doctrine providing legal immunity for statements/actions occurring during judicial proceedings.
5. Primary Goal: To ensure a "free adversarial atmosphere" where lawyers and witnesses can speak without fear of retaliatory defamation suits.
6. Historical Scope: Originally protected only against defamation; now expanded to most torts (fraud, tortious interference, etc.).
7. The Balancing Act
8. The Conflict: Individual Right: Protection of reputation and freedom from wrongful attacks.
9. Public Interest: Necessity for full disclosure of facts in court.
10. The Resolution: Florida courts generally prioritize the "public interest" to ensure the administration of justice is not hampered by the threat of collateral litigation.
11. Absolute vs. Qualified Privilege
12. Absolute Privilege: Applies to statements made during judicial proceedings (pleadings, hearings, trials). Immunity exists even if the statement was made with malice or knowledge of its falsity.
13. Qualified Privilege: Often applies to presuit (pre-litigation) communications. Can be overcome if the plaintiff proves "express malice" (intent to injure).
14. When Immunity is Absolute (Presuit)
15. Mandatory Notices: If Florida law requires a notice or demand letter before filing a complaint, it is considered "necessarily preliminary" to a judicial proceeding.
16. Examples: Statutory presuit notices (Medical Malpractice, Libel/Slander notices). Communications required by contract or administrative regulation.
17. Case Law: Stewart v. Sun Trust Bank (Communications required by statute are absolutely privileged).
18. "Not Absolute" Reality (Discretionary Communications)
19. The Grey Area: Communications that are not required by law but are sent in anticipation of litigation.
20. The Risk: Demand letters sent as "scare tactics" rather than good-faith attempts to resolve a dispute.
21. Key Case: Trent v. Mortgage Electronic Registration Systems Court refused to extend absolute privilege to presuit letters that were not legally required.
22. Proving Malice: The Shield Becomes a Sieve
23. If a communication only enjoys qualified privilege, it can be defeated.
24. Express Malice: Defined as a primary motive to "gratify a feeling of ill-will" or "to injure the person as to whom the publication was made."
25. Fact-Intensive: Whether a letter was sent in "good faith" is often a question for a jury, meaning you cannot always get these cases dismissed early.
26. Emerging Limitations & Novel Claims
27. Malicious Prosecution: Litigation privilege does not bar claims for malicious prosecution (it would "eviscerate" the tort).
28. Consumer Protection: Courts are hesitant to apply the privilege to letters that violate the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) or collection acts.
29. Media Statements: Statements made to the press or public generally do not receive litigation privilege.
30. Best Practices for Litigators
31. Stick to the Facts: Avoid inflammatory or irrelevant language in demand letters.
32. Verify Requirements: Determine if the presuit communication is legally required or merely tactical.
33. Good Faith: Ensure there is a sincere intent to file suit if the demand is not met.
34. Targeting: Limit communications to the parties involved; do not copy unrelated third parties.
35. The litigation privilege is a powerful shield, but it is not a "get out of jail free" card for bad-faith presuit behavior.
36. Key Takeaway: In Florida, the closer a communication is to a mandatory legal step, the more protected it is. The more "creative" or "aggressive" a discretionary demand letter is, the higher the risk of liability.
37. Originally published on (The Florida Bar Journal) By Tampa Business Litigation Attorney
38. By Jeffrey P. Lieser from Lieser Skaff