Imagine you have filed a lawsuit against the former contracting company completing renovations on your commercial property. In the midst of litigating your case, you hear a knock on your door. It is a process server delivering a complaint filed against you by your former contracting company for tortious interference and defamation. Your former contracting company has asserted that due to your ongoing litigation against them, and the comments that you made in court and in your pleadings, that their company had lost the business of five of their largest customers. Should you be held responsible for that?

Florida Courts have responded with an emphatic, “No!” You have the right to speak the truth, the whole truth, and nothing but the truth in a Court of Law, without fear of retribution, retaliation, or litigation from other parties, as long as that truth is related to a judicial proceeding. Under the doctrine of litigation privilege, “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement, or other tortious behavior […] so long as the act has some relation to the proceeding.” The reason for this is because Courts are dedicated to ensuring that a party involved in litigation has the ability to speak freely, candidly, and in an unrestrained manner without threat of other legal actions.

However, this absolute immunity only applies to statements, comments, and representations made “during litigation” or “during the course of a judicial proceeding.” This begs the age-old question, what exactly constitutes “during the course of a judicial proceeding?” Does this absolute immunity apply to statements made before you filed your Complaint? Does it apply to statements made after trial, but before a judgment is entered? How far does the litigation privilege extend? The case law is less clear on this aspect. In Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007), the Justice Wells’ dissent addressed whether the litigation privilege extended to statements made before judicial proceedings, instead of during a judicial proceeding. There, the Justice Wells cited the Fourth District case, Pledger v. Burnum & Sims, Inc., 432 So. 2d 1323 (Fla. 4th DCA 1983), which held that statements which are “necessarily preliminary” to judicial proceedings—meaning any presuit communications that are required by statute or contract as a condition precedent to litigation—are covered by the litigation privilege. However, any voluntary statements made prior to litigation, may not be covered by the litigation privilege, as they were not “necessary.” See Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992).

This discrepancy remains a popular question with the Courts to determine just how far the litigation privilege will apply. Due to the important public policy reasons regarding a litigant’s right to present his or her arguments in court without fear of retribution or retaliation, courts tend to apply the privilege broadly and liberally. If you have any concerns as to the applicability of the litigation privilege, and whether the pre-suit demand letter you are sending out may be subject to a tortious interference claim, you can reach out to Haber Law for any of your litigation needs.