By Jeffrey T. Donner, Esq.

September 11, 2026

Florida litigation is adversarial by design. Lawyers representing opposing parties are expected to disagree about facts, contract language, statutory interpretation, precedent, evidentiary issues, and ultimately about what result the court should reach. Competent advocacy frequently requires a lawyer to press an interpretation that the opposing lawyer regards as strained, to distinguish precedent that appears unfavorable, or even to ask a court to extend, modify, or reject existing law. The mere fact that an argument is aggressive, novel, or ultimately unsuccessful does not make the argument improper.

There is nevertheless a boundary between zealous advocacy and litigation positions that lack a sufficient basis in fact or law. Florida Statute § 57.105 provides one of the principal mechanisms for policing that boundary. The statute permits the recovery of attorney’s fees in defined circumstances when a party or its lawyer knew or should have known that a claim or defense lacked the necessary factual or legal support. It also authorizes relief for litigation conduct undertaken primarily for unreasonable delay. Because the statute operates as an exception to Florida’s ordinary rule that each party bears its own attorney’s fees, and because sanctions can affect not only litigants but lawyers personally, courts have appropriately treated § 57.105 as a serious remedy rather than an ordinary adjunct to motion practice.

That distinction is important. Section 57.105 is not supposed to convert every contested lawsuit into a secondary dispute over whether the losing lawyer should be punished for having lost. Civil litigation would cease to function if every rejected argument exposed counsel to personal fee liability. The adversarial system depends on lawyers having sufficient room to test factual propositions, challenge existing interpretations, and make good-faith arguments for the development of the law. At the same time, the system cannot work properly if parties are permitted to impose substantial litigation costs on their opponents by maintaining claims, defenses, or motions that counsel knows, or objectively should know, lack adequate support.

The Statutory Standard Is More Precise Than the Word “Frivolous” Suggests

Lawyers commonly refer to a § 57.105 motion as a motion directed to a “frivolous” claim or defense. That terminology is convenient, but the current statute is more precise than the label suggests. Section 57.105(1) provides that, upon the court’s initiative or a party’s motion, the court shall award a reasonable attorney’s fee when the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense, when initially presented or at any time before trial, either was not supported by the material facts necessary to establish it or would not be supported by the application of then-existing law to those material facts.

The statutory language therefore focuses on two different forms of deficiency. The first is factual. A party may have a perfectly recognizable legal theory but lack the material facts necessary to establish it. The second is legal. The asserted facts may be accepted for purposes of analysis, yet existing law may simply provide no reasonable legal basis for the claim or defense being maintained. In either circumstance, the statute incorporates an objective component through the phrase “knew or should have known.” The question is not limited to whether counsel subjectively believed an argument was meritorious. The statute necessarily asks whether the position remained one that a lawyer or litigant acting with the requisite professional diligence could reasonably continue to maintain.

That does not mean, however, that every claim failing on summary judgment, every rejected affirmative defense, or every motion denied by a trial court retrospectively becomes sanctionable. Courts decide close questions every day. Parties frequently lose because a judge resolves an ambiguous contractual provision against them, finds one line of authority more persuasive than another, determines that the evidence is insufficient, or concludes that an expert opinion does not satisfy an evidentiary requirement. None of those outcomes, standing alone, establishes a violation of § 57.105. The statute is directed not simply toward unsuccessful positions, but toward positions whose lack of factual or legal support satisfies the statutory standard.

Florida appellate decisions have emphasized that the modern version of § 57.105 no longer requires the complete absence of a justiciable issue, which was associated with an earlier version of the statute. At the same time, the statute remains a sanctions provision and must not be used merely because opposing counsel believes an argument is weak. The distinction is necessarily contextual. A position may begin with adequate support and later become untenable after discovery establishes that an indispensable fact does not exist. Conversely, an argument may initially appear doubtful but remain legitimate because existing authorities are genuinely in tension or because counsel is expressly advocating a reasonable development of the law.

Section 57.105 Protects Legitimate Efforts to Change the Law

One particularly important feature of the statute is its protection for legitimate law-development arguments. Section 57.105(3)(a) prohibits monetary sanctions under the legal-support provision when the court determines that the claim or defense was initially presented as a good-faith argument for the extension, modification, or reversal of existing law, or for the establishment of new law, as applied to the material facts, with a reasonable expectation of success.

That exception is not merely a technical limitation on sanctions. It reflects something fundamental about American common-law adjudication. The law develops because lawyers sometimes ask courts to do something that no binding precedent has yet done. A rule forbidding arguments inconsistent with existing precedent would freeze the law in place. Lawyers must therefore remain free to contend, for example, that an existing rule should be narrowed, that changed circumstances justify reconsideration of older precedent, or that principles recognized in one context should logically extend to another.

But there is an important difference between candidly asking a court to change the law and pretending that existing law already says something it does not. A serious law-development argument ordinarily acknowledges the existing authorities and explains why they should be distinguished, modified, or reconsidered. An attorney does not convert an otherwise unsupported argument into a protected effort to change the law merely by characterizing it after the fact as “creative.” The intellectual discipline required by advocacy includes accurately describing the present state of the law before asking a court to alter it.

That principle is especially important in an era in which lawyers have unprecedented access to searchable statutes, reported opinions, electronic dockets, and increasingly sophisticated research technology. The lawyer’s obligation remains the same regardless of the research tool used: determine what the law actually provides, fairly characterize adverse authority, and distinguish between what the law presently is and what counsel believes it should become.

The Twenty-One-Day Safe Harbor Is Central to the Statutory Scheme

Section 57.105 does not ordinarily permit a party to encounter an allegedly unsupported filing and immediately place a sanctions motion before the court. Subsection (4) establishes a safe-harbor procedure. A party seeking sanctions must first serve the § 57.105 motion on the opposing party. The motion may not be filed with or presented to the court unless, within twenty-one days after service, the challenged paper, claim, defense, contention, allegation, or denial has not been withdrawn or appropriately corrected.

The safe harbor reveals much about the purpose of the statute. The primary objective is not simply to punish lawyers for making mistakes. It is to discourage parties from continuing to impose litigation costs through positions that, once challenged and reconsidered, should no longer be maintained. The statute effectively provides counsel with an opportunity to reassess the disputed position outside the immediate pressure of a sanctions hearing. If the challenged matter is withdrawn or appropriately corrected during that period, the statutory procedure has accomplished an important part of its purpose without requiring judicial intervention.

That structure also means that serving a § 57.105 motion should itself be a considered professional act. It should not become routine correspondence attached to every disputed motion. Lawyers inevitably disagree, sometimes vehemently, about the merits of a case. The safe-harbor mechanism has greater institutional value when it is reserved for circumstances in which counsel genuinely believes the statutory threshold has been crossed rather than being used as another means of escalating ordinary litigation.

Recent Florida appellate authority continues to treat the twenty-one-day mechanism as substantive rather than ceremonial. The Third District, for example, addressed the operation of the safe harbor in Citizens Property Insurance Corp. v. Oppenheimer in 2026 and held, on the procedural circumstances before it, that a subsequently served sanctions motion afforded a new twenty-one-day opportunity to withdraw the challenged matter. The decision underscores that compliance with the statutory procedure matters because the opportunity to avoid sanctions is part of the legislative design.

Section 57.105 Also Reaches Litigation Conduct Intended Primarily to Cause Delay

The statute is not limited to unsupported claims and defenses. Section 57.105(2) separately addresses conduct undertaken primarily for unreasonable delay. Where the moving party proves by a preponderance of the evidence that an action taken by the opposing party was primarily intended to cause unreasonable delay, the statute directs the court to award reasonable expenses incurred in obtaining the resulting order and permits recovery of other loss resulting from the improper delay.

The subsection is broad in the types of conduct it identifies. It is not confined to pleadings. It expressly encompasses actions including discovery demands, responses to discovery, assertions of claims or defenses, and responses to requests made by another party. The focus is therefore functional rather than formal: litigation procedure cannot properly be used primarily as a device for imposing unnecessary expense or postponing an inevitable result.

As with subsection (1), however, the distinction between hard litigation and sanctionable conduct is critical. Litigation frequently involves legitimate requests for extensions, contentious discovery disputes, objections requiring judicial resolution, and strategic decisions that incidentally delay a case. Section 57.105(2) requires more. The challenged action must have been taken primarily for the purpose of unreasonable delay. That requirement appropriately prevents the sanctions statute from becoming a means of penalizing every procedural dispute that lengthens litigation.

Who Pays a Section 57.105 Award?

Another significant aspect of the statute is that liability may extend to counsel personally. Under subsection (1), the statutory fee award ordinarily is allocated in equal amounts between the losing party and the losing party’s attorney. The statute, however, contains important exceptions concerning when monetary sanctions may be imposed against counsel or the represented party.

For example, § 57.105(3)(b) protects an attorney from sanctions based upon factual insufficiency when the attorney has acted in good faith based on the client’s representations concerning the existence of the material facts. Section 57.105(3)(c) likewise prohibits sanctions under the legal-support provision against a represented party. These distinctions reflect the respective roles of client and counsel. Clients are generally the source of many underlying facts, while lawyers bear particular professional responsibility for investigating and accurately analyzing the governing law.

That allocation also explains why § 57.105 should command the attention of practicing lawyers. A lawyer who maintains an unsupported legal position cannot necessarily treat the potential sanction as merely another cost borne by the client. The statute expressly contemplates attorney responsibility in appropriate circumstances.

An Example From First-Party Property Litigation

I previously encountered this issue in a first-party property insurance case involving an attempt to exclude testimony from a licensed Florida public adjuster. Public adjusters occupy a recognized role in Florida’s statutory insurance system. Section 626.854 extensively regulates their activities, contracts, and compensation. Florida law permits public adjusters to be compensated based upon a percentage of insurance claim payments or settlements, subject to detailed statutory limitations. For ordinary claims, the statute generally caps qualifying percentage-based compensation at twenty percent; for certain claims arising from events subject to a gubernatorial declaration of emergency, a ten-percent limitation applies during the statutory period. Current law contains additional limitations for particular circumstances.

The public adjuster in my case had participated directly in evaluating the claimed property damage and adjusting the insurance claim. The opposing party sought to strike him as a witness substantially on the theory that his financial interest in the insured’s recovery rendered his testimony improper. In my view, that argument confused two very different evidentiary concepts: bias and competency.

A witness’s financial interest in litigation can unquestionably be relevant to credibility. If a witness stands to receive greater compensation if one side obtains a larger recovery, opposing counsel ordinarily should be permitted to explore that fact through cross-examination and argue its significance to the factfinder. But potential bias does not automatically render a witness legally incompetent to testify, much less establish that the witness must be excluded from giving any testimony concerning matters within his personal knowledge.

Florida’s Evidence Code separately addresses qualification to provide expert opinion testimony. Section 90.702 permits expert testimony when specialized knowledge will assist the trier of fact and the witness is qualified by “knowledge, skill, experience, training, or education,” provided the additional statutory reliability requirements are satisfied. Expertise therefore does not depend upon a particular academic title or professional degree. Depending upon the subject matter, extensive practical experience may provide the relevant qualification.

In Sihle Insurance Group, Inc. v. Right Way Hauling, Inc., 845 So. 2d 998 (Fla. 5th DCA 2003), the Fifth District addressed testimony from a public adjuster concerning lost profits and held that the witness’s experience and qualifications supported admission of the testimony despite the absence of an accounting degree. The case does not stand for the proposition that every public adjuster automatically qualifies to give every conceivable expert opinion. No profession receives that kind of categorical evidentiary immunity. It does, however, illustrate the ordinary evidentiary principle that qualification turns upon the witness’s knowledge, skill, experience, training, or education in relation to the opinion actually offered.

There is an additional distinction that can be lost when parties speak loosely of “striking an expert.” A person involved in the underlying events may possess both fact testimony and proposed opinion testimony. Even if a court limits or excludes certain expert opinions under § 90.702 and Daubert, that does not necessarily erase the witness’s personal knowledge of what the witness inspected, observed, measured, discussed, or did. Courts evaluating so-called hybrid witnesses therefore must distinguish between factual testimony based upon personal involvement and expert opinions that invoke specialized knowledge.

In that case, I concluded that the motion went beyond an aggressive evidentiary argument and lacked a sufficient legal basis, particularly because the authorities being invoked did not establish the proposition for which they were being used. I therefore served a motion under § 57.105 and, after the safe-harbor period expired without withdrawal of the challenged motion, filed the sanctions motion.

The trial judge ultimately denied sanctions. The court also denied the opposing party’s motion to strike the public adjuster. Those two rulings are not inconsistent. A court can reject an argument—indeed, reject it decisively—without finding that the argument satisfies the separate statutory threshold for sanctions under § 57.105. That distinction illustrates precisely why lawyers should not treat the statute as a prevailing-party mechanism. Winning the underlying legal dispute and establishing entitlement to sanctions are different questions.

In retrospect, that is also the more useful lesson from the episode. Section 57.105 should not be measured solely by whether sanctions ultimately are imposed. The service of a properly grounded safe-harbor motion forces everyone involved to examine the disputed contention at a different level of seriousness. It places counsel on formal notice that the opponent contends the position has crossed from ordinary advocacy into territory governed by a fee-shifting statute. Sometimes that assessment will prove correct; sometimes a judge will conclude that, although the challenged argument failed, the demanding statutory threshold was not satisfied.

The Difference Between Bias and Disqualification

The evidentiary issue underlying that dispute also presents a broader point important beyond public-adjuster testimony. Litigation frequently involves witnesses who have some relationship to one side. Treating doctors may expect unpaid bills to be satisfied from a recovery. Accountants may work repeatedly for the same client. Contractors may have participated in the project that generated the lawsuit. Employees obviously have relationships with their employers. Retained experts are themselves paid for their professional time.

Those financial or professional relationships may provide fertile ground for cross-examination. They do not ordinarily create automatic witness disqualification. The adversarial system generally addresses bias by exposing it to the factfinder rather than by pretending that anyone with an interest or relationship can provide no useful evidence.

Expert admissibility involves a different inquiry. Under Florida’s codification of the Daubert framework in § 90.702, courts examine the witness’s qualifications, whether the testimony rests upon sufficient facts or data, whether it is the product of reliable principles and methods, and whether those principles and methods have been reliably applied to the facts. Those are analytically different questions from whether the witness has a financial interest that the jury should consider when deciding how much weight to give the testimony.

Conflating credibility with admissibility risks transferring to the judge a function that ordinarily belongs to the factfinder. Trial judges act as gatekeepers concerning expert testimony, but gatekeeping does not mean deciding which admissible witness should ultimately be believed. Once testimony satisfies the rules governing admissibility, traditional tools of the adversarial process—including cross-examination, contrary evidence, impeachment, and closing argument—remain central to testing its persuasive force.

Why Courts Properly Approach Sanctions With Caution

Lawyers sometimes become frustrated when a judge rejects the challenged motion yet declines to impose § 57.105 sanctions. From the advocate’s perspective, it can seem obvious that if an argument was bad enough to lose decisively, the lawyer who made it should bear the expense it caused. The statutory inquiry is more demanding.

That restraint serves an important systemic purpose. A legal system in which lawyers fear personal sanctions every time they advance an unsuccessful interpretation would produce excessively cautious advocacy. Difficult questions would be avoided rather than litigated. Developing areas of law could stagnate. Lawyers representing unpopular clients or unconventional positions might become reluctant to press legitimate arguments because the financial consequences of losing could extend personally to counsel.

At the same time, judicial caution does not make § 57.105 meaningless. The statute has real force where the required findings are established. Florida appellate courts have reversed orders denying sanctions where the record showed that the challenged position lacked the necessary factual or legal foundation. In Dental Law Firm, P.A. v. People’s Choice Public Adjusters, LLC, for example, the Fourth District concluded that a third-party action was unsupported by the necessary material facts and existing law and did not constitute a protected good-faith argument for changing the law. The court therefore reversed the denial of § 57.105 relief.

The proper approach is consequently neither to treat sanctions as routine nor to regard them as practically unavailable. The question remains whether the particular conduct before the court satisfies the statute.

Section 57.105 Is Ultimately About the Integrity of the Adversarial System

The adversarial system gives lawyers considerable freedom because we assume that competing advocacy assists courts and juries in reaching sound decisions. Each side investigates the facts, researches the law, challenges weaknesses in the opponent’s position, and attempts to persuade an impartial decisionmaker. The system is intentionally argumentative.

But the legitimacy of that process depends upon limits. Advocacy is not a license to misstate precedent, ignore dispositive authority, maintain factual assertions after discovery has demonstrated their falsity, or use litigation procedure principally to increase the opponent’s cost of obtaining a result. Section 57.105 exists at that boundary.

A good litigator therefore should be capable of holding two ideas simultaneously. First, opposing counsel must be afforded substantial room to make aggressive and even novel arguments. A lawsuit would serve little purpose if both sides agreed about everything. Second, professional tolerance for aggressive advocacy is not unlimited. When a claim, defense, contention, or motion genuinely lacks the factual or legal support required by § 57.105, the statute provides a mechanism for requiring the responsible party or lawyer to confront that deficiency before continuing to impose the resulting litigation costs on the opponent.

For clients, this distinction matters because litigation strategy should never be reduced to filing as many motions as possible or responding to every disagreement with a threat of sanctions. Effective trial practice requires judgment. Sometimes the strongest move is to attack an argument directly on its merits and allow the court to reject it. Sometimes the appropriate response is to create a clear appellate record. And occasionally the circumstances warrant the more serious step of serving a § 57.105 motion and invoking the statute’s twenty-one-day safe harbor.

Knowing which situation is which is part of the craft of litigation.

Section 57.105 is therefore best understood not as a weapon against lawyers who lose arguments, but as a safeguard against the continued maintenance of litigation positions that the responsible party or attorney knew or should have known lacked the factual or legal foundation the system requires. Used carefully, it reinforces rather than undermines vigorous advocacy by preserving a meaningful distinction between arguing hard and litigating without an adequate basis.

This article is provided for general informational purposes only and does not constitute legal advice. Application of Florida Statute § 57.105 is highly dependent upon the particular facts, procedural history, claims, defenses, and authorities involved in an individual case.