Elements of Florida Civil Causes of Action and Defenses.

by Arthur L. Berger

As any experienced lawyer will tell you, time is money. Whether representing a Fortune 500 client in complex negotiations or prosecuting a penny-ante pro bono action in small claims court, the ability to determine the applicable rules of law quickly and efficiently can make all the difference in the world. Indeed, the presentation of any legal position, from initial analysis to formal argument, must always be grounded in the appropriate elements of substantive law.

However, the truth is many lawyers today go off into battle with a tenuous grasp of the law on which they intend to base their case. The "law," as it were, is literally at one's fingertips in today's modern world. The dilemma, of course, lies in finding the best way to access as quickly and inexpensively as possible. This is no easy task, and it is made even more daunting by the fact that not all legal problems arise in just one area of law.

Unfortunately, most secondary sources of "the law" do not provide a comprehensive scope of coverage. There are, in fact, too few resources that cover the wide assortment of causes and defenses that one is likely to encounter in practice. To fill this void, and make their research more efficient, many Florida attorneys have learned to rely on resources like the "standard jury instructions" approved by the Florida Supreme Court, or they attempt to glean the law from standard form/pleading books. The question often asked is: Why can't someone just put together all of the rules of law that Florida lawyers typically use on a daily basis in one, easy-to-use book?

Tallahassee attorney Arthur L. Berger has compiled just such a resource in Elements of Florida Civil Causes of Action and Defenses. First published in 1997, Elements has become a fairly well-known desktop reference, and it is not uncommon to see it carried into court or conference. In this, his Second Edition, Berger has changed little of what made the original Elements so popular (and useful), and has in fact made a number of noticeable improvements.

The one-volume softcover text lists approximately 100 civil actions and defenses, and the book is printed in an easy-to-read full-size format. New entries in this Second Edition include "assault" and "battery," and "declaratory judgment"--along with "rescission" and a handful of others.

Elements contains a significant amount of valuable "nuts and bolts" information, all carefully organized and clearly presented for ready use. Identifying the pertinent elements of law is the principle focus of this practice-oriented text, and its practical format is sure to help both experienced and novice attorneys find their way through the maze.

Berger has arranged the various entries in his book alphabetically--something akin to a glossary--with each individual action (and its correlative defenses) receiving anywhere from one to 11 pages of coverage. Some of the actions receive comprehensive treatment--"negligence," for example--while others get just a cursory glance--i.e., "Eviction"; the reason for this disparity is not readily apparent. Despite this unexplained disparity of treatment, most of the entries in the text receive more than adequate coverage. This is especially true if the materials in the book are utilized in the manner in which they were intended--to swiftly and efficiently establish a basic foothold and understanding of the substantive elements of law for a particular cause or defense.

Berger has neatly organized each entry into segments entitled "elements of cause of action," "references," "defenses," and "related matters." This format renders the book at once instantly familiar and easy to use. Citations to authority abound; Berger cites leading cases and secondary authorities, as well as federal and state statutes. In fact, if the cause of action arises out of a statute, the applicable statutory authority is specifically identified, and the entry then follows the general format used for the common law.

The book does have a few drawbacks: Berger does not include either an introduction or a preface to his text, and he does not identify with any specificity just how current the law was as of the date of its publication. In addition, the book contains no subject index (or case index or statutory index for that matter), all of which would be helpful to a researcher without a handle on the "title" of the particular cause or defense being investigated.

Despite these relatively minor flaws, the book can be quite useful in steering a pleader or researcher to the basic elements of law for all but a few commonly encountered causes of action. In fact, the only serious omission from the book is a high price tag. At $94 including shipping and handling, it is a bargain indeed. It can be ordered from your favorite online bookstore or by e-mailing Berger at [e-mail].

Gary S. Gaffney is an a appellate attorney and legal writer, board certified in real estate law, and past chair of The Florida Bar Journal and News Editorial Board.