Prove It! Evidence Matters if Filing a Complaint
If you want to file a lawsuit, FREC complaint, or local board ethics complaint, start by deciding if you have a viable case. Take stock of the evidence you have supporting your position and weigh it against their burden of proof.
ORLANDO, Fla. – There’s a routine conversation we have on the Florida Realtors Legal Hotline in which the caller wants us to explain what law someone has violated. It often involves a suspicion or strong hunch that someone is up to no good, but the caller can’t point to a specific document, statement, or other fact that proves some rule was violated. Or maybe they’ll point to a small snippet of a conversation or text exchange.
If they want to move forward with an actual complaint, I’d invite them to do more homework.
How much evidence do you need?
There are different “burden of proof” levels that someone filing a lawsuit or complaint must prove. Criminal cases require the highest level of proof – beyond a reasonable doubt. Realtor ethics hearings and some specific civil arguments require the second-highest level of proof – clear and convincing. Most civil lawsuits and local board arbitration cases have a lower burden of proof – preponderance of the evidence.
It’s worth knowing which burden applies before filing a complaint, since it’s always possible that a collection of evidence is enough to win one type of case but not a different type of case.
How good is the evidence you’ve collected so far?
Evidence comes in many different forms, and some pieces of evidence are stronger than others. Here’s a quick snapshot of a few different types. It’s often hard to tell what specific pieces of evidence will resonate with a judge, jury, investigator, or hearing panel, but if you’re thoughtful about collecting and organizing your evidence ahead of time, it can give your case a much better chance of success.
- Witnesses who can testify about what occurred
- Formal written statements, like a letter or email
- Casual written statements, like a brief email or text
- Formal oral statement, like something said under oath
- Casual oral statement, like parts of a conversation someone remembers
Have you considered what evidence the other side might submit?
If you’re filing something like a police report or even a report with the Florida Real Estate Commission, this may not be as important. Under those circumstances, you essentially share whatever evidence you have, tell your story, and they investigate from there.
On the other hand, if you’re heading towards small claims court (or court in general), a local board ethics hearing, or an arbitration hearing, this is a crucial issue to consider. If you can see the issue through their eyes, it may help you prepare an argument for why you disagree with their perspective.
Have you asked a neutral person to share their candid opinion about your case?
By the time members call our Legal Hotline, they have usually have solid opinions about what happened and whether their evidence creates a winning argument for their side or not. It’s usually a firm belief. But it’s natural for all of us to have blind spots. That’s why it can be very helpful to ask a neutral party whether they think your evidence is strong enough to convince a judge, jury, or hearing panel that your argument is a winner. Ideally, this person would be blunt and honest, while also being supportive of you.
Better yet, have you asked your own attorney about your case?
In all cases, consulting your own attorney can be an invaluable source of advice. The more expensive or volatile an issue, the more important it will be to reach out to an attorney for advice and representation to suit your needs. Litigation attorneys are subject matter experts in evidence, arguments, and procedure, so use their services as often as you can before taking significant steps in a dispute.
Joel Maxson is Associate General Counsel for Florida Realtors
Note: Information deemed accurate on date of publication
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