D. David Keller

President, Founding Shareholder
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The Best Lawyers in America®
Legal Malpractice Law—Defendants
(Since 2008)

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David Keller is passionate about defending the reputations of lawyers and law firms. For over 20 years, he has devoted a substantial portion of his practice to defending lawyers and law firms in legal malpractice cases, counseling law firms on risk management issues, and defending Florida Bar Grievance Complaints.  He often handles “bet-the-law firm” cases, and is frequently engaged to defend some of the largest law firms in the country.  Recent cases include five trials, four of which he took over from other counsel after years of litigation, as he has done frequently throughout his career.  Mr. Keller also has extensive experience with general commercial and insurance litigation, including business disputes, defamation, and commercial tort claims, insurance coverage and declaratory judgment cases, business property insurance claims, arson, fraud, and bad faith claims. In recent years he has also been called on to review and testify regarding fee applications as an expert witness, and to review extensive fee submissions from outside counsel for compliance with corporate client billing guidelines and The Florida Bar Rules of Professional Conduct.  In addition to his long-time defense practice, he has successfully handled a number of personal injury plaintiff claims and suits, securing several substantial jury verdicts and settlements for injured parties, including one for over $3 million. Although not a certified mediator, he has also been called on to mediate several lawyer professional liability, insurance-related and commercial cases.

Mr. Keller has tried more than 50 cases to jury verdict and handled numerous non-jury trials, significant arbitrations, and appeals in both state and federal courts and before the American Arbitration Association. He completed two four-year terms on the Seventeenth Circuit Judicial Nominating Commission and served as Chair of the JNC (2016-2017) following his nomination by the Florida Bar and successive appointments by Governor Rick Scott.  In July 2018 he was appointed to the Judicial Nominating Commission for the Fourth District Court of Appeal.

Mr. Keller has been elected to membership in the Federation of Defense & Corporate Counsel, and the American Board of Trial Advocates, and maintains membership in the Defense Research Institute, and the Florida Defense Lawyers Association. Mr. Keller was named Trial Attorney of the Year for 2016 by the Fort Lauderdale Chapter of the American Board of Trial Advocates. He served in the American Bar Association House of Delegates from 1990-1992 and 2002-2006 and has served the Florida Bar and local bar associations in various capacities, including as President of the Fort Lauderdale Chapter of ABOTA (2009), President of the Broward County Bar Young Lawyers Section, President of the Broward County Federal Bar Association (1997-1998), Chairman of a local Grievance Committee, member of The Florida Bar Young Lawyers Division Board of Governors, and on The Florida Bar Civil Rules Committee. He has also served as a member of the Board of Directors of The Harmonie Group, a national affiliation of leading commercial defense firms.

Mr. Keller co-authored (with Michael Krueger) Update on Cumis Counsel, Florida and Other Selected Perspectives, FDCC Quarterly 3 (Spring, 2006), and has lectured to professional groups, law firms, and insurers on insurance matters, legal malpractice developments, risk management and prevention, and on demonstrative evidence and email and electronic discovery issues. Mr. Keller has been an AV-rated lawyer with Martindale-Hubbell since 1992. He has also been listed in The Best Lawyers in America® for Legal Malpractice Law—Defendants since 2008, has been listed as a Top Lawyer by the South Florida Legal Guide since 2006, and as a Florida Super Lawyer.

Mr. Keller is an instrument-rated pilot who operates his own aircraft for business and pleasure. He served as President of Temple Beth Israel from 2005-2007. He received his B.A. in History with honors from Florida Atlantic University in 1976, and his J.D. from the University of Florida in 1979.

Bar Admissions

  • 1979, Florida
  • 1983, U.S. Supreme Court
  • 1981, U.S. Court of Appeals, Fifth Circuit
  • 1983, U.S. Court of Appeals, Eleventh Circuit
  • 1980, U.S. District Court, Southern District of Florida (Trial Bar 1987)
  • 1989, U.S. District Court, Middle District of Florida
  • 2001, U.S. District Court, Northern District of Florida

Significant Engagements and Results

Legal and Professional Malpractice

  • Jury Trial, July 2018, Broward County Circuit Court – In a challenging seven-year-old case which Keller took over from prior counsel after a number of adverse rulings, including Orders Granting Leave to pursue punitive damage claims against a major law firm and one of its lawyers, Keller, and partners Raymond Robin and Elizabeth Izquierdo prevailed in a two-week jury trial on claims for conspiracy/usurpation of corporate opportunity, negligent misrepresentation, aiding and abetting fraud/theft of corporate opportunity, civil theft and breach of escrow agreement. The Court granted a directed verdict on the claims for civil theft, and for punitive damages against the law firm, and the jury rendered a complete defense verdict on all remaining claims.
  • Jury Trial, August 2018, Miami-Dade County Circuit Court – After six days of a scheduled two-week trial on claims for legal malpractice in connection with investors’ purchase of a financially distressed corporation and alleged negligence in due diligence and advice regarding the transaction, Keller successfully negotiated a confidential nominal settlement substantially lower than any pre-trial demands. The settlement at trial followed effective cross-examination of Plaintiffs’ best witnesses and presentation of critical testimony from two key out-of-town defense witnesses taken out of turn during Plaintiffs’ case-in-chief. Settlement was for approximately 3% of initial pre-trial demand.
  • Jury Trial, November 2018, Broward County Circuit Court – After taking over the defense of a highly regarded commercial lawyer and his law firm as lead trial counsel less than a month before trial, Keller won a Directed Verdict following several days of trial, after successfully cross-examining the Plaintiff, his retained law professor expert witness, and the defendant Keller established the absence of any factual basis for a claim of professional negligence relating to a technical legal research issue and preservation of error for appellate review. Defendants obtained a substantial Final Judgment for attorneys’ fees and costs.
  • Non Jury Trial, May 2016, Polk County Circuit Court – Successful defense of lawyer and major law firm at trial in suit for breach of trust, breach of fiduciary duty, and removal of lawyer as Trustee, resulting in dismissal of claim for removal with prejudice, and award of substantial attorneys’ fees and costs.
  • Summary Judgment/Dismissal of $200 million claim, December 2010, Complex Business Division, Orange County Circuit Court – prevailed on claims for legal malpractice and breach of fiduciary duty against prominent commercial trial lawyer and his firm for alleged damages in excess of $200 million.
  • Reversal of Dismissal for Failure to Prosecute, Miami-Dade County Circuit Court – Effected claim repair by drafting successful Motion to Vacate Dismissal of Subrogation Claim based on failure to prosecute, resurrecting case for large firm, negating professional liability claim, and preserving longstanding institutional client relationship for the law firm client.
  • Defended lawyer in claims involving alleged improprieties with respect to handling ancillary probate proceedings for foreign estate valued at over $400 million, and related state court judgment against estate for $193 million in damages.
  • AAA Arbitration trial victory, Miami – Successful prosecution of fee claim and defense of seven-figure counterclaim for breach of fiduciary duty, disgorgement of substantial fees, and for damages in AAA arbitration for a major South Florida law firm. Fees in excess of $800,000 recovered by law firm client in underlying commercial litigation case, with additional fees in excess of $750,000 for pursuit of fee claim and in defense of Counterclaim, pursuant to prevailing party fee provision in the client’s engagement letter.
  • Voluntary Dismissal just before trial, Broward County Circuit Court – successful defense of law firm in claim for negligence in guardianship proceedings and related sale of stock in closely held business, resulting in voluntary dismissal before jury selection at commencement of three-week jury trial.
  • Voluntary Dismissal in Response to Motion for Summary Judgment, and Motion for Sanctions – successfully defended large out-of-state law firm in claim alleging professional negligence associated with work on behalf of pension plan and IRS audit, and invalidation of plan based on use of springing cash value life insurance policy funding mechanism sold to client by insurer and financial planners. Claimants voluntarily dismissed the case following receipt of summary judgment motion, and agreed to pay fees to law firm based on pending Motions for Sanctions Pursuant to Florida Statute 57.105.
  • Successful pre-trial arbitration before retired circuit judge on legal malpractice claim against plaintiff’s employment lawyer in connection with discrimination and sexual harassment case.
  • Summary judgment, Palm Beach County Circuit Court, in legal malpractice case by prisoner over settlement of injury claim against jailers.
  • Summary Judgment, Palm Beach County Circuit Court – successful defense of South Florida tax lawyer, prevailing on claim of legal malpractice and fraud in connection with alleged loss of $1.8 million in off-shore annuity investment.
  • Jury Verdict, Broward County Circuit Court – successful defense of major South Florida law firm in two-week jury trial involving bankruptcy trustee auction and sale and resulting claim for over $1 million in damages awarded trustee against law firm’s former client, collected substantial fee award based on Offer of Judgment.
  • Jury Verdict, Broward County Circuit Court – successful defense of psychiatrist for alleged malpractice in two-week jury trial involving proper admission protocols for schizophrenic patient injured after leaving emergency room.
  • Jury Verdict, Broward County Circuit Court – successful defense of neurosurgeon in trial for malpractice, based on statute of limitations and alleged oral tolling agreement
Commercial Litigation
  • February 2019, Non-Jury Trial – After five years of contentious litigation, Keller and firm member Jose Riguera prevailed after a week-long trial, before putting on a defense, when the Plaintiff was forced to disclose previously withheld evidence establishing that the entire claim was a fraud on the Court. Keller was initially engaged to represent the defendant’s counsel in connection with a routine real estate closing which should have ended with a Corrective Deed and Corrected Title Insurance Commitment when a mistake in the legal description came to light after closing. Instead of submitting a title insurance claim, the buyer engaged a major AmLaw 200 firm, and sued the seller (a bank which took title by foreclosure and previously sold off a small piece of the property it had acquired) for breach of contract based on the closing documents which contained an incorrect legal description which included the small parcel the bank had sold a year earlier. The buyer’s counsel had changed the legal description in the contract to correspond with the incorrect title commitment after it had been approved by both counsel, without informing the seller of the change, and denied knowledge of how the error in the legal description occurred. Keller eventually assumed representation of the bank under an indemnification agreement. During trial, after an evidentiary dispute regarding previously undisclosed information withheld based on privilege, the buyer produced emails proving that the buyers and their real estate counsel and title agent (who also served as the closing agent) knew of the discrepancy and the prior sale, but failed to disclose it to the bank’s counsel. After this evidence was produced (and after making a settlement demand which was rejected), Plaintiff voluntarily dismissed the case, agreed to relief on the counterclaim for reformation of the deed, and the Court reserved jurisdiction to award attorneys’ fees and costs to the bank. The case was resolved with the Plaintiff and the closing attorney in a confidential settlement.
  • February 2015 Jury Trial, Miami-Dade County Circuit Court – Won two-week trial for breach of contract and conversion against marine repair facility involving dispute over yacht repair and assertion of mechanic’s lien by major yacht repair facility, appearing as lead trial counsel just before trial after seven years of litigation, and securing orders awarding substantial attorneys’ fees in addition to damages awarded, all of which was collected from the Defendants.
  • 2012 Summary Judgment in $20 million malicious prosecution case – affirmed on appeal, Orlando – Defeated claims of malicious prosecution, tortious interference with business relationships and conspiracy against corporation and its principals based on unsuccessful criminal prosecution following insurance fraud investigation, with damages alleged to be in excess of $20 million, and after court granted claimants leave to amend complaint to seek punitive damages.  Total Fleet Solutions v. National Insurance Crime Bureau, Orange County Circuit Court Case No. 08-CA-33848-O, Summary Judgment Affirmed, 101 So. 3d 856 (Fla. 5th DCA 2012)
  • Jury Trial, Miami-Dade County Circuit Court – successful defense of physician practice management group, assuming lead counsel responsibility two weeks before trial in major 12-year-old commercial contract and business tort claims dispute, with partial summary judgment entered against client on one of three counts, jury verdict rendered for approximately $1.3 million plus fourteen years interest and attorneys’ fees pursuant to contract. The jury’s decision was reversed by trial court with a post-trial directed verdict for Defendant, Final Judgment in favor of Defendant, and Order granting fees and costs to the Defendant. On appeal Keller won a per curiam affirmance of post-trial directed verdict. Community Health Related Services, Inc. v. EMSA Limited Partnership, 955 So. 2d 579 (3d DCA 2007)
  • Successful defense of lender liability claim against original lender during foreclosure proceedings initiated by successor bank on $68 million loan in Seminole County Circuit Court.
  • Successful enforcement of trademark rights for major U.S. toy manufacturer under Lanham Act, resulting in preliminary injunction against retailer selling defective goods acquired after they were slated for destruction.
Insurance Coverage
  • September-October 2018 Jury Trial, Miami-Dade County Circuit Court – two week trial of a case taken over from prior counsel who retired, Keller, along with partners Dena Sacharow and Maria Vernace, secured a defense verdict against an excess professional liability insurer seeking to avoid and shift responsibility to a previous excess insurer for its share of a $10 Million settlement of a professional liability claim against a major law firm. The Plaintiff insurer employed a prominent, highly regarded jury consultant to assist before and during jury selection, and presented expert testimony from a nationally recognized authority on excess and surplus lines insurance coverage matters. The successful trial prevented recovery of $5 million plus prejudgment interest for over 10 years, and exposure to substantial attorneys’ fees and costs, with total exposure of over $9 million. The case was resolved post-trial with no appeal.
  • 2015 Jury Verdict, Miami-Dade County Circuit Court – successful  two-week jury trial against marine insurer for breach of contract based on wrongful payment to repair vendor instead of insured before yacht repairs completed, and award of attorneys’ fees in seven-year dispute, appearing as lead trial counsel shortly before commencement of trial. All insurance benefits were recovered in full, together with prejudgment interest, attorneys’ fees and costs.
  • Successful pro bono representation of a dependent minor obtaining post-mortem invalidation of life insurance beneficiary designation by estranged parent and award of life insurance benefits to surviving minor dependent
  • Denial of Motion to Enter Judgment Against Insurer for $265 million, Miami-Dade County Circuit Court – defeated effort to enter judgment against foreign insurer following default judgment against insured in wrongful death product liability case
  • Lead appellate counsel in Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300 (Fla. 4th DCA 1995), widely cited decision establishing distinction between insurance policy requirement of examinations under oath, and depositions, resulting in forfeiture of claim based on insured’s failure to appear at an EUO.
  • Successful defense of several business and homeowners arson cases in U.S. District Court, Southern District of Florida, and in state circuit courts in South Florida in several jury trials, and by summary judgment.
  • Successful and prompt resolution at early mediation of insurance coverage dispute over property damage claim in excess of $18 million following Hurricane Andrew for major mixed-use commercial property in South Dade County.
  • Jury Verdict, U.S. District Court – successful defense at trial in federal court on coverage claim involving collapse of condominium buildings alleged to be caused by sinkholes, with claimed damages in excess of $2 million.
  • Successful defense of multi-million dollar claims by accountant and accounting firm following arson fire, resulting in summary judgment for insurer after federal conviction of the insured.
  • Successful defense of automobile uninsured motorist claim in U.S. District Court, affirmed on appeal.  Erie Insurance Exchange v. Dunn, 56 F.3d 1390 (11th Cir. 1995).
Appeals

Mr. Keller’s published appellate decisions include:

  • ARI Mut. Ins. Co. v. Hogen, 734 So. 2d 574 (Fla. 3d DCA 1999)
  • Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300 (4th DCA 1995)
  • Sembric v. Allstate Ins. Co., 434 So. 2d 963 (Fla. 4th DCA 1983)
  • Sparacino v. Laganiere, 429 So. 2d 1299 (Fla. 4th DCA 1983)