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LAWYERTHE HILLSBOROUGH COUNTY BAR ASSOCIATION

TAMPA, FLORIDA | MARCH - APRIL 2015 | VOL. 25, NO. 4

1M A R - A P R 2 0 1 5 | H C B A L A W Y E R

LAWYERMAR - APR 2015 | VOL. 25, NO. 4

THE HILLSBOROUGH COUNTY BAR ASSOCIATION

FEATURES AND EVENTS

DIVISIONS

The Alafia Banks, at the mouth of the Alafia River in Tampa Bay, are one of the most important bird-nesting sitesin Florida. Residents include dense flocks of roseate spoonbills, which are sustained by the fertile shallows.

Photo courtesy of Carlton Ward Photography, www.carltonward.com

ABOUT THE COVER

3 SETTING THE BAR HIGH Editor’s Message by Ed Comey

4 SURVIVE AND ADVANCE:MAGNA CARTA MADNESS?HCBA President’s Message by Benjamin H. Hill IV

6 YLD’S OUTSTANDING YOUNGLAWYER AND JURIST AWARDSYLD President’s Message by Anthony “Nino” Martino

8 ABA PRESIDENT-ELECTPAULETTE BROWNENCOURAGES INCLUSION AT DIVERSITY LUNCHEONExecutive Director’s Message by John F. Kynes

10 THE NOT-SO-CLEAN GETAWAYState Attorney’s Message by Mark A. Ober

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7 YLD QUARTERLY LUNCHEON

9 LEADERSHIP INSTITUTE VISITS MOFFITT

12 LAW WEEK 2015: MAGNA CARTA, THE SYMBOL OF FREEDOM UNDER LAWby Alexandra Haddad

14 AN INTERVIEW WITH THE HON. SUSAN C. BUCKLEWby Michael S. Hooker

18 ROASTS TO REMEMBER

23 HCBA PAST PRESIDENTS LUNCHEON

25 COLLABORATIVE LAW LUNCHEON

25 JUDICIAL CLE LUNCHEON

31 CRIMINAL LAW SECTION CLE

31 HEALTH CARE LAW CLE

36 COFFEE AT THE COURTHOUSE

36 FLORIDA BAR PRO BONO AWARDS

38 JANUARY MEMBERSHIP LUNCHEONCELEBRATES DIVERSITY

42 TOAST & ROAST RECEPTION FOR CHIEF JUDGE MENENDEZ

47 LEGAL INFORMATION CENTER

53 DIVERSITY COMMITTEE CLE

59 TRIAL & LITIGATION SECTION HONORS RETIRING JUDGES

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2 M A R - A P R 2 0 1 5 | H C B A L A W Y E R

Deborah C. BlewsPaige A. GreenleeRachael GreensteinGordon Hill

Anthony D. MartinoKevin McLaughlin Kristin A. Norse John A. Schifino

Laura E. WardGrace Yang

ADVERTISINGPR/Communications DirectorCorrie [email protected](813) 221-7779

EditorEd Comey

Executive DirectorJohn F. Kynes

Chester H. Ferguson Law Center1610 N. Tampa Street, Tampa, FL 33602Telephone (813) 221-7777FAX (813) 221-7778www.hillsbar.com

LAWYERTHE HILLSBOROUGH COUNTY BAR ASSOCIATION

22 HARMLESS ERROR REDEFINEDAppellate Practice Section by Ezequiel Lugo

24 BLANK SLATE OR BLACK HOLE?Collaborative Law Section by Joryn Jenkins and Lori Skipper

28 BOILERPLATE OBJECTIONS -THE DEVIL IS IN THE DETAILS?Construction Law Section by Erin E. Banks

30 SPOTTING LEGAL ISSUESINVOLVING MARIJUANA IN THE WORKPLACECorporate Counsel Section by John W. Bencivenga

33 INDUCEMENTS TO ANINFORMANT WITNESSCriminal Law Section by Matt Luka

49 NEW SEASON, NEW ELDER LAW PROGRAMS!Elder Law Section by Elizabeth Allenand Debra Dandar

50 FEDERAL JUDGE RULES FLORIDA MEDICAID PROGRAMVIOLATES U.S. LAWSHealth Care Law Section by Amy Nath

52 CONDUCTING AN INTERNAL I-9 AUDITImmigration & Nationality Section by Maria del Carmen Ramos

SECTIONS 54 WARRANTIES OFNONINFRINGEMENT AND ALLOCATION OFINFRINGEMENT RISKIntellectual Property Section by Jeff Fabian

55 NLRB RULES THAT EMPLOYERSMUST PERMIT NON-BUSINESSUSE OF EMAIL Labor and Employment Section by Scott T. Silverman and Dee Anna D. Hays

56 ALBERTO ROMERO (1975-2015)Marital & Family Law Section by Amber Boles, Courtney Bowes, and Natalie Baird

58 FEDERAL PRO BONO MEDIATION INITIATIVEMediation & Arbitration Section by Amy Mahan Tamargo

67 VACANT AND ABANDONEDPROPERTY REGISTRATIONReal Property, Probate & Trust LawSection by Jennifer Lima-Smith

68 FORUM SELECTION CLAUSETRUMPS OBLIGATION TO ARBITRATESecurities Law Section by Lonnie L. Simpson

69 HELP LOW-INCOME CLIENTSRESOLVE PROBLEMS WITH THE IRSTax Law Section by Nancey G. Penner

70 NEW PLEADING REQUIREMENTSFOR MORTGAGE FORECLOSURESTrial & Litigation Section by Morgan W. Streetman

71 EXPERT TESTIMONY UNDER THE WORKERS’COMPENSATION ACTWorkers’ Compensation Section by Anthony V. Cortese

COMMITTEES

(ISSN 1553-4456) THE HILLSBOROUGH COUNTY BAR ASSOCIATION Lawyer is published six times per year by the Hillsborough County Bar Association. Editorial, advertising, subscription, and circulation offices: 1610 N. Tampa Street, Tampa, FL 33602.Changes of address must reach the Lawyer office six weeks in advance of the next issue date. Give both old and new address. POSTMASTER: Send change of address notices to Hillsborough County Bar Association, 1610 N. Tampa Street, Tampa, FL33602. One copy of each Lawyer is sent free to members of the Hillsborough County Bar Association. Additional subscriptions to members or firm libraries are $50. Annual subscriptions to others, $100. Single copy price, $15.00. (All plus tax.) Write toHCBA, 1610 N. Tampa Street, Tampa, FL 33602. The Lawyer is published as part of the HCBA’s commitment to provide membership with information relating to issues and concerns of the legal community. Opinions and positions expressed in the articlesare those of the authors and may not necessarily reflect those of the HCBA. Submissions of feature articles, reviews, and opinion pieces on topics of general interest to the readership of the Lawyer are encouraged and will be considered for publication.

OFFICERSPresident: Benjamin H. Hill IVPresident-Elect: Carter Andersen; Imm. Past President: Susan E. Johnson-VelezSecretary: Cory Person; Treasurer: Robert J. Scanlan

EX-OFFICIOHon. Manuel Menendez Jr.; Bill Schifino Jr.; Hon. Mark R. Wolfe

DIRECTORS:

26 VOLUNTEER JUST A FEW HOURS AND MAKE A DIFFERENCEIN THE LIFE OF ANOTHERCommunity Services Committee by Lara M. LaVoie

46 CHARGING CHILDREN AS ADULTSAND ITS DISPROPORTIONATEEFFECT ON MINORITIESDiversity Committee by Amanda Buffinton

64 LEND AN EAR, LEND A HEART: THE MISUNDERSTOODAFFLICTION OF PTSDMilitary & Veterans Affairs Committeeby George E. Nader

66 RETENTION OF CLIENT FUNDS AND FORGERY REQUIRE SANCTIONSProfessionalism & Ethics Committeeby Caroline Johnson Levine

5 SAVE THE DATES11 100 CLUB13 NEW MEMBERS61 HCBA BENEFIT PROVIDERS72 AROUND THE ASSOCIATION75 CLASSIFIED ADVERTISING75 JURY TRIAL INFORMATION75 ADVERTISING INDEX

IN EVERY ISSUE

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SETTING THE BAR HIGH

He was always in control of the courtroom and had high standardsfor the lawyers who appeared before him.

E D I T O R ’ S M E S S A G E E d C o m e y - L a w C l e r k t o U . S . B a n k r u p t c y J u d g e M i c h a e l G . W i l l i a m s o n

My first contested hearing as a lawyerwas before Judge James Arnold. Itwas a summary judgment hearing,although not a particularlycomplicated one. Not having argued

a summary judgment motion before, I launched into whatI thought was a brilliant — and, as it turns out, whollyunnecessary — exposition on the summary judgmentstandard shortly aftermaking my appearance.I don’t recall preciselywhat he said, but JudgeArnold’s puzzled lookhad “this guy can’t beserious” written allover it. Before I couldfinish, Judge Arnoldinterrupted me andpatiently explained howit would be moreeffective to focus on mysubstantive argumentsthan a legal standard thecourt was more thanfamiliar with.

Although not quite the reception I was aiming for, itwas one I greatly appreciated then and have come toappreciate even more over the years. Looking back, Isuppose Judge Arnold could have let me ramble on andthen ruled in my favor (which he eventually did) in spiteof my argument. I would have felt better about thehearing, of course, but that wouldn’t have helped myprofessional development. Instead, the now-retired judgeused the hearing as a teaching opportunity for anobviously young and inexperienced attorney, which inthe long run, made me a more effective lawyer.

In many ways, it reminded me of my high schoolalgebra teacher who once held me after class to tell memy B+ grade was not going to cut it because he had

higher expectations for me. I didn’t appear in JudgeArnold’s courtroom that often after that first hearing,but when I did, that was how I always viewed him. Hewas always in control of the courtroom and had highstandards for the lawyers who appeared before him.Because of that, lawyers knew they would have a fairopportunity to present their case or argument. At thesame time, Judge Arnold was always very gracious

to others.I understand it was

not unusual for a policeofficer to show up atJudge Arnold’s housein the early morninghours to have a searchwarrant signed, only to be invited in for a cup of coffee. Courtreporters often talkedabout how JudgeArnold made sure to take breaks duringtrial — not an easything for a busy trialjudge to do — so they

would be more comfortable. And he always made sure tothank jurors for their service.

Over the years, Judge Arnold has had a number ofhigh-profile cases in Tampa. In the late 1980s, hepresided over a trial involving abortion protesters thatwas so large it had to be held in the Tampa PerformingArts Center. More recently, he presided over the Bubbathe Love Sponge trial, known more for what happenedoutside the courthouse than what happened in it. Thereis a tendency, it seems to me, to remember judges for thebig, high-profile cases they presided over. As for me, I’llremember Judge Arnold for the high standards he set forlawyers who appeared before him, which will have apositive impact on this community for years to come.

Judge Arnold with his family at a retirement celebration at the HCBA

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As a college sports fan, one of my favoritetraditions is the annual NCAA collegebasketball tournament. Known as“March Madness,” this short yet excitingseason is once again upon us. As such, it

is hard for anyone to avoid discussions involving brackets,chalk, top seeds, Cinderella teams, buzzer beaters, andother roundball nomenclature. Inevitably, one will hearhoops aficionados — often coaches or sportscasters —

Survive and Advance: Magna Carta Madness?

Perhaps not as fun to discuss as a bracket-buster game, Magna Carta’ssignificance should not be overlooked — especially by us lawyers.Indeed, Magna Carta is still widely considered to be one of the greatestpolitical and legal sources of support for any modern-day, free society.


H C B A P R E S I D E N T ’ S M E S S A G EB e n j a m i n H . H i l l I V - H i l l W a r d H e n d e r s o n

use the phrase “survive and advance” in reference tohow teams approach each round and plan fortournament success.

While the tourney has been played for nearly 80 years,a far more significant milestone is also upon us. This yearmarks the 800th anniversary of Magna Carta. Perhapsnot as fun to discuss as a bracket-buster game, MagnaCarta’s significance should not be overlooked — especiallyby us lawyers. Indeed, Magna Carta is still widelyconsidered to be one of the greatest political and legalsources of support for any modern-day, free society. Putdifferently, the legal thoughts and principles in MagnaCarta have arguably “survived and advanced” over theyears as well as any set forth in a single document.

As there is not enough space here for a deep dive intoMagna Carta’s history, one will generally recall thatMagna Carta was the “Great Charter” (did not need sixyears of Latin for that), which King John was compelledto sign at Runnymede in 1215 to assure local baronscertain temporary property rights and protections.Although Magna Carta was modified and reaffirmed afew times over the next couple of centuries, it remainedlargely between the king and the barons. However, in the17th century, Sir Edward Coke, an English barrister andjudge, reinterpreted Magna Carta and used it to defendagainst certain oppressive tactics by the monarchy. Thisinterpretation led to a more widespread application ofMagna Carta such that it extended rights and freedomsto all English people.

When these English citizens and their childrenrelocated and established colonies in America, the

principles of Magna Carta survived and advanced to thisland. Amid this country’s development and growth overthe ensuing decades, Magna Carta’s influence not onlysurvived but eventually advanced to all Americans. Theseand other principles traceable to Magna Carta are nowembedded in the United States Constitution, the Bill ofRights, and, obviously, much of our case law.

Bar associations, historical societies, and countlessother organizations around the globe are celebrating the800th anniversary of Magna Carta. In fact, theAmerican Bar Association is sponsoring a host ofcommemorative activities. If you are interested in learningmore about them, please visit the ABA’s website atwww.americanbar.org, entering “Magna Carta” as a searchterm. If the history buff in you wants to learn more aboutthe origins, development, and impact of Magna Carta, I recommend that you visit www.magnacarta800th.com.

The HCBA is joining in the celebration of MagnaCarta’s 800th anniversary as our theme for this year’sLaw Week (March 16-20) is “Magana Carta: Symbol ofFreedom Under Law.” I thank our Law Week Committee— led by Co-Chairs Amy Nath, Maja Lacevic, and AlexHaddad — which has worked so hard to assure anotherfabulous week this year. For more information about ourLaw Week events, please see Alex Haddad’s well-writtenarticle on Page 12.

Finally, as “respect for the law” is one of the principlesbehind our HCBA mission themed “Operation Respectand Service,” let us all recognize and be thankful for theenduring effects that Magna Carta continues to have onour freedoms, society, and ways of life. Surviving andadvancing for 800 years now, perhaps the least we coulddo is to indulge in a little “Magna Carta Madness.”

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MARCH 21Judicial Pig Roast/Food Festival & 5K Pro Bono River RunOn the grounds of the Stetson Tampa Law Campus

MAY 14Law & Liberty Dinner, Hilton Tampa Downtown

MAY 20Law Day Membership Luncheon, Hilton Tampa Downtown

Learn more about HCBA events at www.hillsbar.com.

Stay Connected


members as highly qualified,active in Bar-related activities, andshowing a concern for andwillingness to assist young lawyerswhile demonstrating a respect fortheir abilities. Judge Peacockactively serves as a mentor for young lawyers through anumber of organizations and is aprevious recipient of theDistinguished Judicial ServiceAward, which recognizes aspecific commitment to supportpro bono legal services.

The YLD would like to thankJacqueline Simms-Petredis andJudge Emily Peacock for theirsubstantial contributions to thelegal profession, the HCBA YLD,and the Hillsborough Countycommunity. The excellencedemonstrated by both recipientsprovides an example that weshould all aspire to in our ownprofessional development.

Recent & Upcoming YLD Events: For more information on the YLD’s activities, check

out our Facebook page at www.facebook.com/Hillsboroughbaryld. Please also volunteer or join us atthe YLD booth at the Judicial Pig Roast on March 21;Law Week from March 16 to 20; Cornhole for a Causeon March 28; Steak and Sports Day, which is TBD; andState Court Trial Seminar on June 12. Additionally,family forms clinics will be held from 5:30 to 7:30 p.m.on April 21, May 19, and June 2 on the second floor ofthe George Edgecomb Courthouse. Please contact EllaShenhav or Katelyn Desrosiers to get involved in any ofthe YLD’s pro bono activities.

YLD’s Outstanding Young Lawyer and Jurist Awards

The excellence demonstrated by both recipients providesan example that we should all aspire to in our ownprofessional development.

Y L D P R E S I D E N T ’ S M E S S A G E A n t h o n y “ N i n o ” M a r t i n o - C l a r k M a r t i n o , P . A .

I n the September issue of this magazine, I wroteabout the opportunitiesavailable through theYoung Lawyers Division

and encouraged all young lawyers to get more involvedprofessionally to help us make a difference in HillsboroughCounty. In this issue, I would like to recognize two amazinglocal Bar members whoseactivities and service havefurthered the interests of thelegal profession, especiallyrelating to young lawyers. TheYLD wishes to again recognizethis year’s winners of theOutstanding Young LawyerAward and the Robert W. PattonOutstanding Jurist Award.

This year’s YLD OutstandingYoung Lawyer Award recipientis Jacqueline Simms-Petredis,who is being recognized asexemplary in the area of professionalism and in thepractice of law in her field of practice. Jacquelineperformed service to the community on a personal leveland has been actively involved in the HCBA’s YLD,currently serving as the immediate past-president.Jacqueline was selected as the award winner inrecognition of the difference she has made in thepractice of law and the community through her ethicsand conduct.

This year’s Outstanding Jurist Award recipient is JudgeEmily Peacock, who is being recognized as an outstandingjurist with an excellent reputation for sound judicialdecisions and an unblemished record for integrity as alawyer and judge. Judge Peacock is recognized by the YLD

Outstanding Jurist: Judge Emily Peacock

Outstanding Young Lawyer: Jacqueline Simms-Petredis


YLD QUARTERLYLUNCHEON

The HCBA Young Lawyers Division hosted a quarterly

luncheon on January 28 featuring Chris Morgan from

Ricoh Legal, who discussed ethical considerations when

using technology-assisted review. The YLD would like to

thank the luncheon’s sponsor:


ABA President-Elect Paulette Brown Encourages Inclusion at Diversity Luncheon

Also at the luncheon, Marsha Rydberg was named the HCBA’s 2014 Outstanding Lawyer, and the YLD awards were presented.

Aproduct of segregated schools inBaltimore, American Bar AssociationPresident-Elect Paulette Brown says the only lawyer she knew growing up wasTV’s Perry Mason. So she says it will be

a little “surreal” when she makes history and is installedthis summer as the first African-American woman tobecome president of the ABA. Brown also will be only thesixth female president in the ABA’s 137-year history.

“I could not have imagined that this day will come,”said Brown, who was the keynote speaker at the HCBA’sDiversity Membership Luncheon on January 22 at thedowntown Hilton.

In her remarks, Brown talked about the need forgreater diversity and inclusion in the legal community, thevalues instilled in her as a child that have helped her alongin her career, and her priorities as incoming president ofthe ABA. Over the years, Brown has held a variety ofleadership positions within the ABA, and she has beenrecognized by the National Law Journal as one of “The50 Most Influential Minority Lawyers in America.”

The issue of diversity at law firms should not just beabout numbers or quotas, said Brown, who is a labor andemployment lawyer and chief diversity officer with theMorristown, N.J., office of Locke Lord Edwards.“Clients are requiring law firms to be more and morediverse and inclusive,” Brown told the more than 350people in attendance.

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Ben Hill and Paulette Brown

Law firms are viewed as more progressive by younglawyers and students when they make people from diversebackgrounds feel accepted and included, she said. Andfirms have a responsibility to provide real opportunities— economic and otherwise — that will make diverseemployees want to remain. It’s up to firm managers tohelp bring about greater diversity because “those in powerare those who can effectuate change,” Brown said.

She also referenced recent events in the news dealingwith race, such as the police shooting case in Ferguson,

It’s that time of year again!Look for your HCBA membership renewal notice in the mail soon. Renew today by calling (813) 221-7777.

LEADERSHIP INSTITUTE VISITS MOFFITT

The HCBA’s Bar Leadership Institute visited Moffitt Cancer Center on December 11 as part of the group’s learning

modules for the year. The class learned about Moffitt’s efforts to fight cancer locally and nationwide. The BLI class

greatly appreciates the professionals who took time out of their busy schedules to speak with the group. The HCBA

also would like to thank the Bar Leadership Institute’s sponsor: The Bank of Tampa.


Mo. “Even with all the tensions going on ... more peopleare coalescing together for the same goals, and there is beginning to be a dialogue in this country about race relations,” Brown said. “It’s a difficult subject to talk about.”

Brown encouraged those in attendance to participatein the national discussion about race because “talkingaids us in being diverse, and not just in the legalcommunity, but society as a whole.”

The only one of four siblings to attend college, Brownsaid the values ingrained in her at an early age — suchas working hard to succeed, treating others with respect,and giving back — have remained with her throughouther career.

Concluding her remarks, Brown said she is lookingforward to her term as ABA president. “I have a duty todo my best,” she said.

One of her main initiatives will be what she calls“Main Street ABA.” In her travels around the U.S.during her term, Brown says she intends to go to places

that ABA presidents traditionally don’t visit, such asBoys & Girls Clubs, so she can encourage young peopleand serve as a role model.

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Also at the membership luncheon, U.S. District JudgeJames Moody Jr. announced Marsha Rydberg as thewinner of the HCBA’s 2014 Outstanding Lawyer Award.In his introduction, Judge Moody cited Rydberg’s manyaccomplishments and “firsts” during her impressivecareer. For example, Rydberg, who has her own firm,became the first female president of the HCBA in 1991,and she was recently inducted into the StetsonUniversity College of Law Hall of Fame.

Meanwhile, Anthony Martino, president of the YoungLawyers Division, announced two YLD awards. The2014 YLD Outstanding Jurist Award went to ThirteenthCircuit Court Judge Emily Peacock, and the 2014 YLDOutstanding Young Lawyer Award went to JacquelineSimms-Petredis of Burr & Forman.

Congratulations to all these outstanding award winners.See you around the Chet.


E X E C U T I V E D I R E C T O R ’ S M E S S A G EJ o h n F . K y n e s - H i l l s b o r o u g h C o u n t y B a r A s s o c i a t i o n

1 0 M A R - A P R 2 0 1 5 | H C B A L A W Y E R

Juror expectations have risen dramatically withthe popularity of forensic evidence televisionprograming. In certain cases, the courtroomdoes not disappoint. The field of forensicscience is rapidly expanding and innovative.

Although it remains true that nothing beats good detectivework, investigators today routinely turn to science whencatching criminals. Forensic investigation is the art ofdiscovering hidden clues left by a perpetrator. Althoughsophisticated criminals sanitize the crime scene, evidenceoften remains, and clues can be gleaned through theexamination of blood spatter, materials analysis, and theuse of advanced equipment such as laser beams.

Long before the terms “forensic evidence” and “crimescene investigator” were coined, detectives had discoveredthe evidentiary value of fingerprints. No two people, noteven identical twins, have the same fingerprint. It is alsoimpossible to change a fingerprint. The FBI established anational repository for fingerprint records in 1924, filingprints lifted from crime scenes according to major pattern.At the time, law enforcement could obtain only patentprints, those visible to the naked eye. A criminal can easilyremove patent prints. Latent fingerprints are not readilyobservable and can be easily missed, but they remainbehind to identify, and perhaps to convict, the perpetrator.Today, these prints are discovered with the use ofelectronic, chemical, and physical processing techniquesthat permit the visualization of invisible latent prints.

In homicide cases, prime forensic evidence is gainedduring an autopsy. The corpse itself is a crime sceneyielding critical evidence. The autopsy may reveal theentry and exit wound of a penetrating weapon, whichcan be crucial evidence in supporting or rebutting aclaim of self-defense. The presence of defensive woundson a victim’s body is useful in establishing a defendantas the aggressor. Pathologists examine bodily organs andfluids to yield evidence of poisoning, drug ingestion, or malnourishment.

The Not-So-Clean Getaway

Although it remains true that nothing beats good detectivework, investigators today routinely turn to science whencatching criminals.

S T A T E A T T O R N E Y ’ S M E S S A G EM a r k A . O b e r - S t a t e A t t o r n e y f o r t h e T h i r t e e n t h J u d i c i a l C i r c u i t

When the crime scene is saturated with blood, aserologist may be able to scientifically reconstruct thecrime. Blood is subject to gravity, and the pattern of theblood left behind can be of great evidentiary value. Thefinal resting place of the homicide victim may not be thelocation where he or she was attacked. By identifying thelocation of the initial attack, investigators can search thisarea for additional clues. This location may yieldadditional biological evidence necessary to establish theidentification of the killer, as well as non-biologicalevidence such as shoe prints or weapons. When multiplestab wounds have been inflicted to the same bodily area,it is difficult to determine the precise number of stabwounds. Each time a weapon is drawn back, blood fliesfrom the weapon, leaving a cast-off stain. A serologist willstudy the pattern of cast-off stains to help determine thenumber of strikes. This evidence may be critical inproving premeditation or self-defense.

These forensic tools are often an important part of asuccessful prosecution. Our office will continue to usethese methods to seek justice in the courtroom.

1 1M A R - A P R 2 0 1 5 | H C B A L A W Y E R

TO BE ADDED TO THIS LIST, PLEASE EMAIL A LIST OF ATTORNEYS IN YOUR FIRM TO [email protected].

Hillsborough County Bar Association 100 ClubLaw firms with 100% membership in the HCBA

12th Judicial Circuit Court13th Judicial Circuit Court2nd District Court of AppealAddison & Howard, P.A.Alley Clark & GreiweAnsa Assuncao, LLPAnthony J. LaSpada P.A.Anton Castro LawAustin, Roe & Patsko, P.A.Baccarella & Baccarella, P.A.Baird Law GroupBajo | Cuva | Cohen | Turkel, P.A.Barbas, Nunez, Sanders, Butler & HovsepianBarker, Rodems & Cook, P.A.Barnett Bolt Kirkwood Long & KocheBay Area Legal Services Plant CityBay Area Legal Services WimaumaBeltran Litigation, P.A.Bivins & Hemenway, P.A.Boss Arrighi Hoag, P.L.Bowes Law GroupBrandon Family Law Center, LLCBrandon Legal Group, P.A.Brannock & Humphries, PABrennan, Holden & Kavouklis, P.A., Attorneys at LawBrett Hendee, P.A.Bricklemyer Law GroupBroad and CasselBuell & Elligett, P.A.Burr & FormanBush RossButler Pappas Weihmuller Katz Craig, LLPCaglianone, Miller & AssociatesCarey, O’Malley, Whitaker & Mueller, P.A.Carlton Fields Jorden Burt, P.A.Carman & Bevington, P.A.Cheeseman & Phillips, P.A.Clark & Martino, P.A.Clerk of the Circuit Court’s OfficeConwell & Kirkpatrick, P.A.Conwell Business Law, P.A.Cortez Hodz Family Law and Mediation, P.A.Culpepper KurlandDanahy & Murray, P.A.Dandar & Dandarde la Parte & Gilbert, P.A.DeCort & Kirkner P.L.Dixon & AssociatesDogali Law Group, P.A.Donica Law Firm, P.A.Fernandez & Hernandez, LLCFinebloom & Haenel, P.A.Fiol Law Group, P.A.Fletcher & Fischer P.L.Florida Law Group, LLCFriedman Law Associates P.L.Friscia & Ross P.A.Fuentes & Kreischer, P.A.

Fulgencio LawGallagher Keenan, P.A.Galloway, Johnson, Tompkins, Burr and SmithGardner Brewer Martinez-Monfort, P.A.Gaylord Merlin Ludovici & DiazGenders Alvarez Diecidue, P.A.George & Titus, P.A.Gibbs & Parnell, P.A.Gomez & Touger, P.A.Gordon J. Schiff, P.A.GrayRobinson, P.A.Gunn Law GroupHarmon,Woods, Parker & Abrunzo, P.A.Harris and Hunt, P.A.Harrison Kemm P.A.Harvey Schonbrun, P.A.Hillsborough County Attorney’s OfficeHill Ward HendersonHimes & Hearn, P.A.Holcomb & Leung, P.L.James P. Knox, PLLCJohnson & Cassidy, P.A.Jorgensen & Ozyjowski, P.A.Joryn Jenkins & Associates, P.A.Joyce & Reyes Law FirmJudd Bean LawJung & Sisco, P.A.Keys & Coakley, P.L.Kynes Markman & Felman, P.A.Langford & Myers, P.A.Law Offices of Andrew SheinLaw Office of Christine L. Derr, P.A.Law Office of J. Armando EdmistonLaw Office of Michael J. Winer, P.A.Law Office of Philip S. WartenbergLaw Office of Robert M. GellerLaw Offices of Chris E. Ragano, P.A.Law Offices of J. Kevin Carey, P.A.Lennox Law, P.A.Leo D. Gomez, P.A.Leon & Berg, P.A.Lieser & Skaff, P.L.Lins Law Group, PAMac A. Greco, Jr., P.A.Maney, Damsker, Jones & Kuhlman, P.A.Manson Bolves P.A.Marlowe McNabb, P.A.Mason Black & Caballero P.A.Masten Peterson & Denbo, LLCMatthews BowenMcCalla Raymer, LLCMcIntyre, Panzarella, Thanasides, P.A.Mechanik Nuccio Hearne & Wester, P.A.Meirose & Friscia, P.A.Melkus, Fleming & GutierrezMichael D. Fluke, P.A.Michael P. Maddux, P.A.Mike Murburg, P.A.

Morgenstern & Herd, P.A.Nader Mediation ServicesNancy Jacobs, Esq., LLCNicholas & Bell, P.A.Petitt Wolfe Craine Worrell LLCRamirez Law FirmRardon & Associates, P.A.Richard A. Harrison, P.A.Rieth & Ritchie, P.A.Robert E. Morris, P.A., Attorneys at LawRobert G. Kipp, P.A.Rocke, McLean, & Sbar, P.A.Roig, Tutan, Rosenberg, Martin, & Stoller, P.A.Rotella Legal Group, P.A.Rumberger, Kirk & Caldwell, P.A.Saady & Saxe, P.A.Saxon, Gilmore, Carraway & Gibbons, P.A.Schropp Law FirmScott A. Haas, P.A.Sessions Fishman Nathan & Israel, LLPSessums Law Group, P.A.Seth Nelson, P.A.Shawn Harrison Associates, PLLCSilver & AgacinskiSpector Gadon & RosenStichter, Riedel, Blain & Prosser, P.A.Stuart & Strickland, P.A.Tampa Bay Elder Law CenterTampa Law Advocates, P.A.Terrana Perez & Salgado, P.A.The Bleakley Bavol Law FirmThe Bleakley Law FirmThe Fernandez FirmThe Plante Law Group, PLCThe Thorpe Law Firm, P.A.The Yerrid Law Firm, P.A.Thomas & LoCicero PLThompson & BrooksThompson Legal Center LLCThompson, Sizemore, Gonzalez & Hearing, P.A.Timothy G. Anderson, P.A.Todd Foster, PLLCTrentalange & Kelley, P.A.Trombley & Hanes, P.A.Valkenburg & Velez, P.A.Vecchio, Carrier, Feldman & Johannessen, P.A.Wagner McLaughlinWalk Law Firm, P.A.Walters Levine Klingensmith & Thomison, P.A.Weekley, Schulte & Valdes LLCWenzel Fenton Cabassa, P.A.Wetherington, Hamilton, P.A.Wiand Guerra KingWilliam A. Knight, P.A.Willis Law Firm, P.A.Yanchuck, Berman, Wadley and Zervos, P.A.Yanger Law Group, P.A.Young Scanlan, LLC


Lord Neuberger, president of the Supreme Court of theUnited Kingdom, once said, “Where justice is concerned, theprinciples of Magna Carta are a reference to which weshould always return to ensure that we are proceeding in theright direction.”

On June 15, 1215, King John of England was forced to affix his sealto Magna Carta by a group of barons who wanted to ensure their rightsand property against a tyrannical king. Although the interests of the

S P E C I A L F E A T U R E : L a w W e e k C o m m i t t e eA l e x a n d r a H a d d a d - B u r r & F o r m a n , L L P

Law Week 2015: Magna Carta, the Symbol of Freedom Under Law

Today, Magna Carta has taken root as an internationalsymbol of the rule of law and as an inspiration for basic rights Americans hold dear, including due process,habeas corpus, trial by jury, and the right to travel.

Continued on page 13


S P E C I A L F E A T U R E : L a w W e e k C o m m i t t e e A l e x a n d r a H a d d a d - B u r r & F o r m a n , L L P


common man were not at the forefront of the drafters’ minds,there are two principles expressed in Magna Carta that resonateto this day:

“No freeman shall be taken, imprisoned, disseised, outlawed,banished, or in any way destroyed, nor will we proceed againstor prosecute him, except by the lawful judgment of his peers orby the law of the land.”

“To no one will we sell, to no one will we deny or delay, rightor justice.”During the American Revolution, Magna Carta served as an

inspiration to act in liberty’s defense. One of those rights is that noperson, no matter how powerful, is above the law. Those rightsguaranteed by Magna Carta were embedded into the laws of thecolonists’ states and later into the Constitution and Bill of Rights.Today, Magna Carta has taken root as an international symbol ofthe rule of law and as an inspiration for basic rights Americanshold dear, including due process, habeas corpus, trial by jury, andthe right to travel.

This year’s Law Week theme is “Magna Carta: Symbol ofFreedom Under Law.” As we approach the 800th anniversary ofMagna Carta, Law Week’s aim is to reflect on the importance of acitizen’s most basic rights, the rule of law, and the challenges westill face in ensuring that all Americans have access to justice.

Law Week will take place this year from March 16 through 20.Law Week volunteers will educate local youth on Magna Carta andthe development of the rule of law in the United States. Law Weekprovides opportunities for attorneys all across Hillsborough Countyto break away from their daily routines to reach out to localstudents through three types of activities: courthouse tours,classroom discussions, and mock trials.

The courthouse tours involve leading groups of studentsthrough courtrooms and other areas of the courthouse to give thema glimpse of the rule of law in action. Classroom discussionsinvolve traveling to a local school to lead a class or group ofstudents in a discussion on the law and answer student questions.Finally, volunteers who participate in mock trials team up in groupsof two and work with students in presenting a student-friendly case.Participating schools are located throughout the county, andvolunteer attorneys are welcome to participate in any of the threeactivities available.

To learn more about Law Week 2015 orvolunteering, please contact Young LawyersDivision Law Week Committee Co-Chairs AmyNath ([email protected]), Maja Lacevic([email protected]), or Alex Haddad([email protected]).

Author: Alexandra Haddad - Burr & Forman, LLP

Stephanie E. Ambs

Shamika T. Askew-Storay

Hannah E. Austin

Stephanie A. Bandur

Roland S. Chase

John C. Curry

Trisha L. Cram

Raymond S. Dietrich

Shannon R. Dolson

Elisabeth Anne Fontugne

Shawn C. Haggerty

Norma B. Henning

Gregory M. Karch

Annette M, Leshko

Claire E. Meharg

Victoria J. Oguntoye

Meghan E. Raynor

Joseph A. Regalada

Natasha G. Samria

Scott Schmelzer

Rachael Simpson

Kaitlyn B. Statile

Paul J. Thompson

Justin J. Wallace

John R. Yant

HCBA WELCOMESNEW MEMBERS

NOVEMBER ANDDECEMBER


Q. Judge, there are probably those who haveappeared before you who are not at allfamiliar with your background. Can you tellus a little about where you grew up andwent to school?

A. Yes. I grew up in Tampa. I was actually bornin Seminole Heights and raised on CliftonStreet. I went to public schools: SeminoleElementary, Sligh Junior High, andHillsborough High School. I graduated fromHillsborough in 1960.

Q. Where did you go to college?

A. Went to Florida State.

Q. After graduating from college, I understandthat you actually taught school.

A. I taught for a total of five years. I was anEnglish major and enjoyed the Englishclasses. I love to read. Always have. When Igot to be a senior, my parents said to me,“Now, what are you going to do when yougraduate?” And that was a valid concernbecause I wasn’t really sure what I would dowith an English degree. So I took enougheducation courses to be able to teach. I cameback to Tampa the last semester of my senior

An Interview with the Hon. Susan C. Bucklew“Sometimes I think we forget howfortunate we are to have such aninteresting profession.”

S P E C I A L F E A T U R EM i c h a e l S . H o o k e r - P h e l p s D u n b a r L L P


year and interned at Plant High School and was thenoffered a job at Plant High School.

Q. Any traits that you mastered in the classroom that carryover to the bench?

A. Patience is probably the biggest thing I learned from teaching.

Q. As the first female county court judge and first femalecircuit court judge here in Hillsborough County, whatchallenges did you face trailblazing the way for women inthe judiciary locally?

A. When I was appointed in 1982, Hillsborough County hadnine county judges, and I was the only woman. In 1986, I wasappointed circuit judge, the only woman out of about 22circuit judges. I look back at both with fondness; I was neveruncomfortable. I might have been treated differently in someways, but I do not recall feeling discriminated against becauseI was a female. Overall, it was a smooth transition.

Q. Is it gratifying now for you to see women following in yourfootsteps and being appointed or elected to the bench?


A. Absolutely. When I graduatedfrom law school, I went to workfor Jim Walter Corporationand was lucky to have a bosswho became a mentor — JimKynes. I remember when I wasappointed to the county court,among the pieces of advice hegave me — because he wasgood at giving advice — was,“You better not screw upbecause if you screw up, therewon’t be another female judgefor a long time.” There stillwasn’t another female judge forquite a while, but I don’t thinkit was because I screwed up.

Q. You served in the state courtsystem for about 10 years andthen were appointed byPresident Clinton to the federaldistrict court bench in 1993.Having served extensively onboth the state and federalbench, in terms of the day-to-day administration of cases,what would you say are thebiggest differences?

A. I have a friend who describesthe differences in the federalcourt and the state court likethis: Walking into a state courtis like walking into a circus. Forexample, in criminal court, atany one time, you may have anumber of public defendersand defense attorneys, anumber of prosecutors,spectators, and manydefendants both in and out ofcustody. The judge is theringmaster. Whereas, whenyou come to federal court, it’slike walking into a library. It isquiet and a little intimidating.There might be two attorneys,perhaps the parties or adefendant and the judge. Ithink the circus and the libraryis a pretty good comparison.




Q. Probably thousands of lawyers have appearedbefore you during your 30-plus years on the bench.What two or three traits do the very best lawyers allseem to share?

A. I think the best lawyers are prepared, and when I sayprepared, that’s not just coming to court and makingan oral presentation. That means spending the timenecessary to answer the judge’s questions oranything opposing counsel might bring up. Also, thebest lawyers are professional. They treat opposingcounsel well, treat the judge well, and treat thecourtroom personnel well.

Q. What are some of the difficulties facing the judiciarythat you wished lawyers who appear before youbetter understood?

A. That we have more than your case. Sometimes I have a case where the lawyers inundate you withpaper. By that I mean the filings are excessive andrequire an enormous amount of judicial time. So I think that lawyers need to understand that theircase is one among many cases, and if you reallywant the judge to read what you have given them,then you cannot bury them with paper.

Q. You were a founding member and past president ofthe Cheatwood Inn of Court and an organizingmember of the Herbert G. Goldburg Criminal Innof Court. Why have you given so much to the localInns of Court?

A. It has been an enjoyable, gratifying experience towatch the Inns of Court movement grow across theUnited States and in the Tampa area. It has been afun experience for me, or I would not have stayed infor so long. The Inns of Court experience is soimportant for young lawyers because it gives theman opportunity to interact with experienced lawyersand judges on an informal basis, have dinner withthem, play games with them, and plan programswith them.

Q. You took senior status awhile back, yet you still seemto maintain a full-time schedule on the bench. Isthere really any difference between your role now asa senior status judge versus what you were before?

A. Yes, some. It has been six years since I took seniorstatus. For me, it has been a work in progress. In thebeginning, I did the same thing that I did as anactive judge, but I have gradually cut down so thatnow I take a partial civil caseload and a full criminal

caseload. I probably should cut down more than I have, but I haven’t because I still enjoy it. I stillenjoy trying cases. I still enjoy the intellectualprocess. If I didn’t, I wouldn’t be here.

Q. Judge, I understand that you love sports. What isyour favorite sport?

A. (Laughs) Well, it depends on the season. Recently, I have been watching a lot of football. Basketballseason has started now so now I’m watching a lot ofbasketball. And in baseball season, I watch the Raysand, of course, Jesuit and little league baseball wheremy grandsons play. So, yes, I am a big sports fan.

Q. You mentioned earlier that you love to read aswell. What’s the last book that you read that youreally enjoyed?

A. I just finished “Big Little Lies,” which is just a funbook. But I also read a lot of fantasy fiction like the“Game of Thrones” series or the “Hunger Games”series. I made myself a promise that I would try toread more nonfiction books. I really like books that I can lose myself in. I have friends who make fun ofme because I read so much fantasy fiction, but Ienjoy it. What can I say?

Q. I also understand that you love to travel. Anyparticular trips or vacations that stand out?

A. I just got back from South Africa. It is a very large,diverse, and interesting country. I went on anincredible safari at a game preserve, but the foodand wine were also wonderful.

Q. During your long and distinguished career, can yousingle out any particular aspect that you found to bemost fulfilling or gratifying?

A. I guess the opportunity as a federal judge to workwith law clerks, to watch them grow and to sharetheir excitement in the law. Sometimes I think weforget how fortunate we are to have such aninteresting profession.

Q. You’re obviously nowhere near being finished yet,but how would you like to be remembered for yourtime on the bench?

A. As fair, as approachable, as someonewho did not take myself tooseriously, and as a judge who youand other lawyers as well as myfamily and friends could be proud of.

Author: Michael S. Hooker - Phelps

Dunbar LLP

S P E C I A L F E A T U R EM i c h a e l S . H o o k e r - P h e l p s D u n b a r L L P



MEDIATION

Helping You Get to YesReach out to Woody Isom when you need a mediator, arbitrator or specialmagistrate/master. Certified Circuit Civiland Federal Mediator since 1993, Board Certified Civil Trial Lawyer with both insurance defense and plaintiff experience.

[email protected]

(813) 629-6388 P.O. Box 320461,

Tampa, FL 33679-2461

Insurance Coverage Disputes Errors & Omissions ClaimsProperty ClaimsBusiness InterruptionExtra ExpenseHealthDisabilityPersonal InjuryWrongful DeathAuto/MotorcyclePremises LiabilityCommercial LitigationNursing HomeMedical MalpracticeProduct LiabilityAviation

101

w w w . 4 f r e e p r e s s . c o m


Roasts to Remember

Fabulous food, festive drinks, fun, and a few pigshave all played a part in making the HCBA’sJudicial Pig Roast/Food Festival & 5K ProBono River Run a success. The HCBA hostedits 1st Annual Barrister Bash Pig Roast 11

years ago on April 3, 2004. From its inception, the eventwas a hit with more than 400 attendees and 22 food booths.Prizes for “Best Pig Slop” and “Best Pigsty” were awardedat the first Pig Roast and made for even hungriercompetition year after year. The first winners of the “BestPig Sty” award went to Professional Placement Services forMama Rosa’s Meatballs (Cerese Taylor, Christina Moore &Susan Etheridge). The first winners of the “Best Pig Slop”award went to Judges Raul Palomino, Manny Lopez, EdBergmann, Robert Foster, Debra Behnke, Jack Espinosa,Ralph Stoddard, and Walter Heinrich.

In 2009, perhaps to relieve some guilt from “pigging”out, the Pig Roast Committee added the 5K Race to theCourthouse to the feast. The hungriest, and so the fastest,runners at the first 5K race were Dan Traver and AndreaBaldwin. Judge Mark Wolfe took the prize for fastestjudge, and Gray Robinson won fastest team. Four yearsafter its inception, the 5K race became the 5K Pro BonoRiver Run in 2013, so as to continue encouraging lawyersto donate time and legal aid.

The Pig Roast itself evolved from the first BarristerBash Pig Roast in 2004 to the Judicial Pig Roast 2005.Then, after eight years of endless misrepresentationcomplaints from the other farm animals, in 2013 the eventwas officially named the Judicial Pig Roast/Food Festival.

Although the Pig Roast and 5K have experienced manychanges over the years, one thing has remained the same:the fun that HCBA members have when surrounded bygood food and good company. The HCBA appreciates allof its members who have helped make this event a successover the years. We look forward to seeing you at the 12thAnnual Judicial Pig Roast/Food Festival & 5K Pro BonoRiver Run on March 21!

The first winners of the “Best Pig Sty” award

The first winners of the “Best Pig Slop” award

The Scrivens and Schifinos

13th Judicial Circuit Judges

Judge Mark Wolfe (center), The Fastest Judge

HARMLESS ERROR REDEFINEDAppellate Practice SectionChairs: Dineen Wasylik - DPW Legal; Jared Krukar - Butler Pappas Weihmuller Katz Craig LLP

The harmless errorstandard applicable tocivil cases has changed.Late last year, the

Florida Supreme Court held thatan error is harmless if “the errorcomplained of did not contribute to the verdict” or “there is noreasonable possibility that the errorcomplained of contributed to theverdict.” Special v. W. Boca Med.

Ctr., 2014 WL 5856384, at *1 (Fla.Nov. 13, 2014). This new test is amodified version of the standardfrom State v. DiGuilio, 491 So. 2d1129 (Fla. 1986), that applies incriminal cases.

The Special test places theburden of proving harmless erroron the beneficiary of an error. Italso places an obligation on theappellate court to examine theentire record and to focus on theeffect of an error on the fact-finder.The court cannot focus solely onthe outcome of a case to decidewhether an error is harmless. Anerror is harmful unless the

beneficiary ofthe error provesthere is noreasonablepossibility thatthe errorcontributed tothe verdict. Theharmless erroranalysis fromSpecial is concerned with theprocess of arriving at a result and is not limited to the result itself.

The Special test supersedes theearlier harmless error standard in civil cases that applied in theSecond District. The SecondDistrict Court of Appeal hadpreviously formulated a test thatfocused only on the result: An errorrequired reversal only if it was“reasonably probable that a resultmore favorable to the appellantwould have been reached if theerror had not been committed.”Damico v. Lundberg, 379 So. 2d964, 965 (Fla. 2d DCA 1979). The Damico standard differs from the Special test in two ways:(1) Damico focused on the effect ofan error on the result regardless of any effect on the fact-finder, and (2) a reversal under Damico

required a “reasonable probability”instead of the mere “reasonablepossibility” from Special.

At first blush, the Special test mayincrease the number of reversals.Appellate courts will now reverse

when an erroraffects the fact-finder, even ifthe error had no impact onthe result. Andappellees willhave to meet the “reasonablepossibility”

standard derived from DiGuilio,which is based on the higher burden of proof in criminal casesand reflects “the strictestformulation of the harmless errortest.” Special, 2014 WL 5856384, at *16 (Pariente, J., concurring inpart and dissenting in part). A case will now be reversed if there is any “reasonable possibility” that the error contributed to the verdict.

Further, Special may have animpact on motions for new trial. A trial judge ruling on such a motioneffectively acts as an appellate judge,immediately correcting a prejudicialerror. Krolick v. Monroe, 909 So. 2d 910, 914 (Fla. 2d DCA 2005).Therefore, if Special makes it easierto show prejudicial error, then trialcourts may also be more likely to

grant motions for new trial.

Author:

Ezequiel Lugo -

Butler Pappas

Weihmuller Katz

Craig LLP

The Special test places

the burden of proving

harmless error on the

beneficiary of an error.


Are you in the market for a new job?

Check out our Career Center at hillsbar.com.


HCBA PASTPRESIDENTS LUNCHEON

The HCBA was honored to host a large gathering of

our past presidents and editors of the Lawyer magazine

on December 8 for the annual Past Presidents Luncheon.

The luncheon featured a special celebration of the

magazine, which has been serving the local legal

community now for 25 years.

The HCBA would like

to thank the

luncheon’s sponsor:


BLANK SLATE OR BLACK HOLE?Collaborative Law Section Chairs: Christine L. Derr - Law Office of Christine L. Derr, P.A.; Jonathan Wax - Waller & Wax Advisors, Inc.

The dearth ofcollaborative case law exists for goodreason. Assuming that

collaborations are successful, andmost are, collaborative teams modelproblem-solving behaviors andcommunication skills so that theirclients learn to resolve futuredisputes without resorting to thelitigation process. Less trial andpost-judgment litigation means less appellate litigation, whichmeans less case law. In the typicalcollaborative divorce, no court isinvolved other than to approve theparties’ agreement.

Collaborative practice is similarto mediation. What mediation caselaw exists usually concerns settingaside an agreement caused bycoercion or duress, which is unlikelyto occur in the collaborative setting,where the entire team, both neutraland allied professionals, workstogether to construct an agreementacceptable to both parties.

In a recent local post-judgmentcase, the clients had initiallycollaborated their way to a maritalsettlement agreement (MSA). Oneof their collaborative attorneys later petitioned for modification.Naturally, the other party’s newlawyer moved to disqualify him.

Had theparties attemptedto resolve theirdisagreementscollaboratively?If so, why werethey unsuccessful?We don’t know.

There’s no authoritypreventing acollaborative attorney from litigatingonce the original collaborativeparticipation agreement (PA) isaccomplished and a divorce finalized.Further, this collaborative MSAincluded the standard provision that the agreement contained theentire understanding and replacedany prior agreements between theparties. There was no exception for the PA.

Ultimately, the judge ruled thatthe PA was no longer in effect, and the collaborative attorney was not barred from participatingin post-judgment litigation.

Practice Tip One: Ensure thatyour collaborative MSA specifiesthat it does not nullify the PA (whichincludes the disqualification clause)and that the disqualification clauseapplies to post-judgment matters.

Practice Tip Two: Ensure that your MSA provides that clientsunable to compromise in laterdisagreements themselves return to collaboration before seekingrecourse in court.

In 2012, an opposing partymoved to disqualify me, contendingthat we had already begun thecollaborative process when theparties opted for litigation instead.The parties had not retained jointneutrals, and only one had signed

the PA. (My clientwas uncomfortablewith thedisqualificationprovision.)

Our expertopined that thecollaborativeprocess had neverbegun because notall participants had

executed the PA. Opposing counselargued that the parties had orallyagreed to proceed collaboratively,disqualifying the attorneys when the process failed. There were nostatutes, local rules, or case lawgoverning collaborative divorce; thejudge was writing on a blank slate.

Ultimately, he held that I was not disqualified; there was nocollaborative participationagreement signed and no meetingof the minds regardingdisqualification. Because there wasno appeal, the unreported opinionwas consigned to law’s black hole.

Because of the negotiatinglessons learned by collaboratingparties, the lack of case law is likelyto last. That is why it is so criticalfor collaborative statutes and rules

to be passed. Once we pass the UniformCollaborative LawAct in Florida,disqualificationwill be a matter of law.

Authors:

Joryn Jenkins

and Lori Skipper -

Open Palm Law

Because of the

negotiating lessons

learned by collaborating

parties, the lack of case

law is likely to last.

To join a section or committee, call (813) 221-7777.


COLLABORATIVE LAW LUNCHEON

The HCBA Collaborative Law Section hosted a panel discussion luncheon on

December 19. The group discussed “When Collaborative Cases Come Before the Court

... Potential Pitfalls and How We Can Avoid Them.”

JUDICIAL CLE LUNCHEON

HCBA members learned how to “make, not break” their record

on appeal during a judicial CLE luncheon on January 7. The HCBA

would like to thank the judges who participated as a part of the

CLE panel: Judge Kimberly Fernandez, Judge Dick Greco Jr., Judge

Michelle Sisco, Judge Caroline Tesche, and Judge Samantha Ward.

The section would

like to thank the

luncheon sponsor:

VOLUNTEER JUST A FEW HOURS AND MAKE A DIFFERENCE IN THE LIFE OF ANOTHERCommunity Services CommitteeChairs: Lisa Esposito - Law Offices of Lisa Esposito, P.A.; and Lara M. LaVoie - LaVoie & Kaizer, P.A.

Since the time that LisaEsposito and I becameinvolved as co-chairs of the Community Services

Committee (CSC) almost two years ago, I have been humbledand amazed at the dedicated group of volunteers I have had the opportunity to work with onour numerous charity events. Amidthe stress and time commitments of life, these volunteers have takentime out to truly make a differencein the lives of others. That issomething the world so desperatelyneeds right now.

After the success of the Adopt a Veteran event in October, duringwhich volunteers gave their time so generously to fulfill the wish listsand hearts of veterans in need,countless volunteers stepped uponce again to support the CSC’sElves for Elders event in December.The CSC (due in no small part tothe unwavering dedication andcommitment of my co-chair, LisaEsposito) was able to get 250 elders“adopted” this year! Withoutvolunteer elves, these wonderfuland inspiring seniors would havehad no presents under theirtrees/menorahs.

Hopefully, you will be able tospare a few hours to volunteer at


“Only a life lived for others is worth living.” — Albert Einstein

one of our upcoming heartwarmingcharity events. In March, the CSCwill be participating in Dining withDignity Week, in association withTrinity Café. The CSC’s friendsand family spend a few hours atTrinity Café serving sit-down,three-course meals to HillsboroughCounty’s homeless, hungry, andworking poor. Their mission is to restore a sense of dignity to the homeless and hungry, whileserving a nutritious meal. Thisunique café sets its tables withtablecloths and silverware. Lunchis served on china; drinks arepoured in glasses; and theconversation is cheerful andcompassionate. We will needvolunteers for any day that week to serve lunch, pour drinks, or just sit and share some one-on-onemeal-time conversation! To learnmore about Trinity Café, pleasevisit: www.trinitycafe.org.

The CSC’s most challenging but deserving event to date, a Pirate Plunder Party for the childrenliving at A Kid’s Place in Brandon,will take place in May. We will be

throwing another amazing PirateParty so these children can forgetabout their troubles for a day. AKid’s Place is a 60-bed facility forabused, neglected, or abandonedchildren ages 2 to 17. The facilityuses a live-in house-parent model,which provides the children with a family-living atmosphere and avariety of services to meet theirsocial, educational, medical, andpsychological needs. Organizingand implementing this eventrequires a significant amount oftime and resources. We reallyappreciate and need any and allhelp that you can provide! To findout more about A Kid’s Place, pleasevisit: www.akidsplacetb.org.

If you are interested in joiningthe CSC or volunteering for anupcoming event, please contact LaraLaVoie ([email protected]) orLisa Esposito ([email protected]).

Thank you for your generosityand support!

Author: Lara M. LaVoie - LaVoie

& Kaizer, P.A.

Read more articles at hcbatampabay.blogspot.com.


The Chester H. Ferguson Law Center is an ideal locationwith a variety of rooms to meet your needs.

Reserve for a day or for a few weeks.

Convenient to downtown Tampa, the Ferguson Law Center has many amenities:

• Six conference rooms of varying sizes• Complimentary AV equipment and Wi-Fi

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Chester H. Ferguson Law Center

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Hold your next meeting at the

Chester H. Ferguson Law Center

In Martin v.

Zale Delaware,

Inc., 2008 WL5255555 (M.D.Fla. 2008), theplaintiff filed a motion tocompel regardingdiscoveryresponses almostidentical to the examplelanguage above,arguing that shewas “confused as to whichdocumentsDefendant haswithheld (if any)and why.” Thecourt stated,“Parties are notpermitted toassert these typesof conclusory, boilerplate objectionsthat fail to explain the precisegrounds that make the requestobjectionable,” and “an objectionthat a discovery request is irrelevantand not reasonably calculated tolead to admissible evidence mustinclude a specific explanationdescribing why.”

Most importantly, however, thecourt stated: “Additionally, it iscommon practice for a party toassert boilerplate objections andthen state that ‘notwithstanding the above,’ the party will respond to the discovery request, ‘subject toor without waving the objection.’Such an objection and answerpreserves nothing and wastes thetime and resources of the partiesand the court.”

This rationale is increasinglybeing adopted by federal courts in Florida and beyond. See Chemoil

Corp. v. MSA V, 2013 WL 944949(M.D. Fla. Mar. 12, 2013)

(explainingthat “[e]venthough thepractice hasbecomecommon hereand elsewhere,courts havefound thatwhenever an answeraccompaniesan objection,the objectionis deemedwaived, andthe answer, if responsive,stands”) (citingPepperwood of

Naples Condo.

Ass’n v.

Nationwide

Mut. Fire Ins.

Co., 2011 WL 4382104 (M.D. Fla.Sep. 20, 2011); Consumer Elec. Ass’n

v. Compras & Buys Magazine, Inc.,

2008 WL 4327253 (S.D. Fla. Sep.18, 2008).

Therefore, whether you agreewith the courts’ rationale regardingwaiving objections, use cautionwhen using form objections andanswers in responding to writtendiscovery. In this day and age of overcrowded court dockets,courts may become increasinglyunsympathetic to counsel who raise these types of objections. To avoid this situation, provide adetailed basis for any objection —and remember, object and answer

“subject to yourobjection” at yourown risk.

Author:

Erin E. Banks -

Carlton Fields

Jorden Burt, P.A.


Provide a detailed basis

for any objection — and

remember, object and

answer “subject to your

objection” at your own risk.

BOILERPLATE OBJECTIONS - THE DEVIL IS IN THE DETAILS?Construction Law SectionChairs: Erik Raines - Hill Ward Henderson; and Mark Smith - Carlton Fields Jorden Burt

If you are a litigator readingthis article, you haveinevitably encounteredlanguage similar to the

following in a response to writtendiscovery:

[Party] objects to this request on the grounds that it is vague,ambiguous, overly broad, undulyburdensome, not reasonablycalculated to lead to discovery of relevant information, seeksinformation protected by theattorney-client privilege, andseeks confidential information.Subject to and without waivingthe foregoing, please seedocuments produced as Bates X to Y.Often, preceding such a response

is a litany of boilerplate generalobjections that are stated to be incorporated into eachindividual response. Althoughresponding to written discovery in this manner is commonplace,courts’ patience for discoverydisputes regarding such responsesappear to be increasingly waning.The outcome of such disputes canvary from a court granting youropponent’s motion to compel, tothe court finding by responding to a request with an objection and“subject to” response, like theexample above, you have waivedyour objection — especially infederal court in the Middle Districtof Florida.


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SPOTTING LEGAL ISSUES INVOLVING MARIJUANA IN THE WORKPLACECorporate Counsel SectionChairs: Michael Stein - CNA Insurance; and John W. Bencivenga - Helios

Dealing with marijuanaissues in the workplace is increasingly becominga dicey proposition. If

you are like me, your preferencewould be to handle this issue in theworkplace just like you handle it athome, which in my case, with fourteenage sons, means zero tolerance,no questions asked. If I find outyou are smoking marijuana, if left to me, you would be fired (orgrounded for life, in the case of myboys). However, much to my regret,“the times, they are a changin’.”

I recently ran across a casefrom the New Mexico Court ofAppeals, Maez v. Riley Industrial,

2015 WL 178359 (N.M. Ct. App.Jan. 13, 2015), which held thatmarijuana was a compensabledrug in a workers’ compensationcase where the use of medicalmarijuana was reasonable andnecessary medical care. Becausethe court held that medicalmarijuana was a compensabledrug, the employer could beforced to pay for it. The appellatecourt concluded that the use ofmedical marijuana was reasonableand necessary even though theemployee’s health care providerdid not initiate or recommend itsuse. With this brief background,here are some issues that may besoon rolling across your desk:

1. Zero tolerance policies. There are at least 23 states that

recognizethe use ofmedicalmarijuana.Severalmore states mayintroducelegislationthis yearwhere themerits ofmedicalmarijuanawill bedebated.These statelaws vary on whetheran employercanterminatean employeefor apositivedrug testresult. Instates suchas Arizona,Delaware, Connecticut, andRhode Island, medicalmarijuana users are protectedfrom discrimination for their use of marijuana. So, if yourcompany has a standard zerotolerance policy and operates in several locations, it would bewise to research state law beforeterminating an employee whotests positive for marijuana. 2. ADA protection issues. Underthe Americans with DisabilitiesAct (ADA), the use of illegal drugsas defined by federal law is notprotected. Marijuana remainsillegal under federal law becauseit is classified as a Schedule 1drug under the ControlledSubstances Act (21 U.S.C. § 801et seq.). Therefore, employers

are notrequired toaccommodatean employee’suse ofmarijuana for medicalpurposes inthe workplaceor duringworking hours.So, if Mr.Maez (fromthe caseabove) comesback to workand wants touse marijuanain the workplace, theemployer doesnot have toaccom modatethis request.However,assuming Mr. Maez isdisabled, other ADA

reasonable accommodationswould have to be considered.3. Recreational use can beprohibited. Medical marijuanalaws, in general, require the userto obtain a card or other docu -mentation justifying use. In caseswhere employees are just smokingmarijuana for recreationalpurposes, employers remain free toenforce drug-free workplace laws.In summary, the days of “Just

Say No to Drugs” seem to be a thing of the past. Howeverunfortunate you (or I) think thismay be, the fact is that in-housecounsel need to stay up to date on the changing legal landscapeinvolving these issues.

Author: John W. Bencivenga - Helios

If your company has a

standard zero tolerance

policy and operates in

several locations, and

an employee tests positive

for marijuana, it would

be wise to research state

law before making a

termination decision.


CRIMINAL LAW SECTION CLE

The HCBA Criminal Law Section welcomed Todd Foster to a CLE luncheon on “The Use and Admissibility of Social

Media and Electronic Evidence in the Criminal Trial” on January 16. Foster discussed the strategies associated with

electronic and social media evidence, as well as advising clients on their social media use. The section would like to

thank the sponsor: Sober101.com.

HEALTH CARE LAW CLE

The HCBA Health Care Law Section hosted

a CLE luncheon featuring guest speaker

Nathaniel Lacktman, a partner and health

care lawyer with Foley & Lardner LLP, on December 3. Lacktman discussed the current law in

Florida for telemedicine; comparisons of other state rules, law, and policy; and key legal issues

for advising telemedicine clients. The section would like to thank the luncheon’s sponsor:


INDUCEMENTS TO AN INFORMANT WITNESSCriminal Law SectionChair: Matt Luka - Trombley & Hanes, P.A.

to depose aninformant witness,consider questionsabout the witness’spersonalexpectationsbecause they may differ fromthose disclosed by the state andmay be based on somethingunknown to theprosecutor butknown to lawenforcement orthe like.

Importantly,the benefits to bedisclosed are notjust those relatedto the present case in which thewitness is expectedto testify. Thestate is obligatedto disclose benefitsit “may make inthe future,” whichdenotes benefitsthat are being contemplated butnot yet offered to a witness. Thiscould also include anticipatedbenefits for assistance in futurecases. Often, the benefits availableto an informant may be intangiblebenefits such as a one-time or acontinuing relationship with lawenforcement. State v. Fernandez,

141 So. 3d 1211, 1221 (Fla. 2dDCA 2014). The rule also requiresdisclosure of past cooper ation andbenefits. By including past andfuture benefits, the rule reaches allinducements that could influencethe witness’s testimony.

As discussed in the previousarticle, distinguishing between aconfidential informant and aninformant witness significantly

alters the disclosurerequired. The statehas historicallyowned a limitedprivilege towithhold theidentity ofconfidentialinformants, thosewho provide lawenforcement officerswith informationabout criminalactivity. State v.

Burgos, 985 So. 2d642, 644 (Fla. 2dDCA 2008). Theburden is on thedefendant claimingan exception to therule to demonstrate that an informant’sidentity or thecontent of theinformant’scommunicationwould be relevantand helpful to aspecific defense or “essential to a

fair determination of the cause atissue.” Id.; see also Fla. R. Crim. P.3.220(g)(2). Mere speculation or bareallegations justifying disclosure areinsufficient to overcome the privilege.Burgos, 985 So. 2d at 645. However,if the defendant is faced with theCatch-22 of not knowing therelevance of the informant withoutthe information protected by theprivilege, consider asking the courtto require the state to produce theinformant for an in-camera hearingat which the trial court couldevaluate whether disclosure of theinformant was essential to a fairdetermination of the cause. Id.

Author: Matt Luka - Trombley &

Hanes, P.A.

In the last edition of theLawyer magazine, weaddressed the Florida SupremeCourt’s amendment of

Florida Rule of Criminal Procedure3.220 regarding disclosure ofinformant witnesses. In re Amend.

to Rule of Crim. Proc. 3.220, 140So. 3d 538 (Fla. 2014). Among the information to be disclosed is whether the informant witnesshas received, or expects to receive,anything in exchange for his or hertestimony, as well as the informantwitness’s prior history of coopera -tion, in return for any benefit, asknown to the prosecutor. Id. at 539.Identifying all potential inducementsto the informant witness is a criticalpart of preparing an effective cross-examination, and the rule compelsa broad range of material.

In considering the benefitsafforded an informant, the term“anything” includes but is notlimited to any deal, promise,inducement, pay, leniency, immunity,personal advantage, vindication, orother benefit that the prosecution,or any person acting on behalf ofthe prosecution, has knowinglymade or may make in the future. Id.

at 539-540. A promise “knowinglymade” would seem to eliminatefrom disclosure expectations aninformant may unilaterally hold.However, the text of the rulecontemplates benefits the witness“expects to receive.” If you are able

Identifying all potential

inducements to the

informant witness

is a critical part of

preparing an effective

cross-examination,

and the rule compels a

broad range of material.


COFFEE AT THE COURTHOUSE

Young attorneys and judges gathered to grab a bite and get to know each other

at the YLD’s Coffee at the Courthouse & Judicial Shadowing Day on December 2.

After breakfast, the attorneys spent the morning shadowing judges to learn more

about a typical “day in the life.”

FLORIDA BAR PRO BONO AWARDSSeveral local legal professionals were

recognized during the 2015 Pro Bono Service

Awards ceremony on January 29 at the

Supreme Court of Florida. Local recipients were:

• Distinguished Judicial Service Award:

The Honorable Ashley B. Moody,

Thirteenth Judicial Circuit

• Young Lawyers Division Pro Bono Service

Award: Sara Alpert

• The Florida Bar

President’s Pro Bono

Service Award: Elizabeth

L. “Betsey” Hapner

• Voluntary Bar Association

Pro Bono Service Award:

Hillsborough Association

for Women Lawyers

• Law Firm Commendation:

Akerman LLP

The YLD would like to thank

the event’s sponsors:


JANUARYMEMBERSHIPLUNCHEONCELEBRATESDIVERSITY

HCBA members celebrated diversity and inclusion

on January 22 during a Membership Luncheon

featuring ABA President-Elect Paulette Brown. Brown

shared some of the lessons she has learned about

inclusion, as well as her goals for the ABA during her

term as president. Also at the luncheon, Judge

James Moody Jr. presented the HCBA’s Outstanding

Lawyer Award to Marsha Rydberg, and YLD President

Anthony Martino presented the Robert W. Patton

Outstanding Jurist Award to Judge Emily Peacock

and the Outstanding Young Lawyer Award to

Jacqueline Simms-Petredis. The HCBA would like to

thank the luncheon’s sponsor:

PHOTOGRAPHY IS COURTESY OF THOMPSON STUDIOS. THOMPSON STUDIOS IS A BENEFIT PROVIDER FOR THE HCBA. WWW.THOMPSONSTUDIOSTAMPA.COM

M A R - A P R 2 0 1 5 | H C B A L A W Y E R 3 9

FOR MORE EVENT PHOTOS, GO TO WWW.FACEBOOK.COM/HCBATAMPABAY


TOAST & ROAST RECEPTION FOR CHIEF JUDGE MENENDEZ

The Hillsborough County Bar Association and Hillsborough County Bar Foundation hosted a Toast & Roast

Reception on December 4 to honor retiring Chief Judge Manuel Menendez Jr. The evening featured former

U.S. Attorney Bobby O’Neill as the master of ceremonies, along with special tributes and presentations by

HCBA President Benjamin Hill IV; HCBF President Bill Schifino; Florida Supreme Court Chief Justice Jorge

Labarga; Senior U.S. District Judge Susan Bucklew; Sheriff David Gee; County Commissioner Sandy

Murman; Terry Smiljanich; Ron Cacciatore; Richard Martin; and Christine Menendez. The HCBA and HCBF

appreciate the support Judge Menendez has shown the Bar during his years of service.

PHOTOGRAPHY IS COURTESY OF THOMPSON STUDIOS. THOMPSON STUDIOS IS A BENEFIT PROVIDER FOR THE HCBA. WWW.THOMPSONSTUDIOSTAMPA.COM


Abrahamson & UiterwykAkerman LLPAllen DellAlley, Clark & GreiweAnn Loughridge Kerr Law OfficeAskTheDom.com from 102.5 FM The BoneBajo | Cuva | Cohen | TurkelBanker Lopez Gassler PABoston Holding Company, LLCBuchanan Ingersoll & Rooney |

Fowler White BoggsBuell & Elligett, P.A.Bill Schifino with Burr & Forman LLPBush Ross, P.A.Butler Pappas Weihmuller Katz Craig LLPCarlton Fields Jorden Burt P.A.Clark & Martino, P.A.Cole, Scott & Kissane, P.A.Curry Law Group, P.A.Dennis Hernandez & Associates, PAFoley & Lardner LLPGaylord Merlin Ludovici & Diaz Givens Givens Sparks, PLLCGolden Scaz Gagain, PLLCGrayRobinson, P.A.Gunn Law Group, P.A.Gunster

Harmon, Woods, Parker & Abrunzo, P.A.Harris and Hunt, P.A.Hill Ward HendersonHillsborough County Bar AssociationHillsborough County Bar FoundationHimes & Hearn P.A.Holland & Knight James, Hoyer, Newcomer & Smiljanich P.A.John Bales AttorneysJohnson Pope Bokor Ruppel & Burns, LLPKnopf|BiggerLau Lane Pieper Conley & McCreadie P.A.Lauro Law FirmLigori & Cappy P.A.Mac A. Greco, Jr., P.A.Macfarlane Ferguson & McMullen Mason Black & Caballero Mills Paskert DiversMorgan & MorganOgden & Sullivan, P.A.Phelps Dunbar LLPPrugh & Associates, P.A.Rinaldo Law GroupRocke McLean & Sbar P.A.Rumberger, Kirk & Caldwell, P.A.Rywant Alvarez Jones Russo & GuytonShook, Hardy & Bacon, LLP

Shumaker, Loop & Kendrick, LLPSmolker, Bartlett, Schlosser, Loeb,

& Hinds, P.A.Stetson University College of LawStichter, Riedel, Blain & Prosser, P.A.The Cohen Law GroupThe Fernandez FirmThe Florida Law GroupThe Solomon Law Group, P.A.The Yerrid Law FirmThompson, Sizemore, Gonzalez

& Hearing, P.A.Trenam KemkerTrombley & HanesWagner McLaughlinWilkes & McHugh, P.A.Zuckerman Spaeder LLP

John AglianoTimothy G. Anderson, Sr.Timothy G. Anderson, Jr.Pedro F. Bajo, Jr.Herb BerkowitzBruce H. BokorKarl BrandesVictoria ButlerLuis A. “Tony” CabassaRonald K. CacciatoreStephen C. CheesemanBarry A. CohenKevin J. Darken

Ben DiamondAmy S. FarriorJohn FitzgibbonsMichael W. GainesLeonard H. GilbertMichael A. GoldWilliam E. HahnBetsey HapnerPamela Jo HatleySusan E. Johnson-Velez Bill JungChristopher S. Knopik Michael Larrinaga

Chris LimberopoulosCarol Jean LoCiceroDennis A. LopezMichael P. Maddux Stuart C. MarkmanRichard MartinDennis M. McClellandDrew McCullochSheila M. McDevittAram MegerianBob NaderKristin A. NorseSteve Oscher

John H. Rains, III Randall Reder David RowlandMarsha G. RydbergThomas H. RydbergLawrence H. Samaha Rob ScanlanGordon J. SchiffBill SchifinoJohn SchifinoJames A. SchmidtL. David ShearPaul M. Sisco

James B. SobleLeslie Reicin SteinGary J. TakacsGregg ThomasWayne Lee ThomasDoug TitusBarbara Twine-ThomasJeffrey W. WarrenPhilip S. WartenbergRob WilliamsMark WolfeGrace YangGwynne A. Young

The Toast & Roast Reception for Chief Judge Menendez would not have been possible

without the support of our sponsors:

FIRMS

INDIVIDUALS


CHARGING CHILDREN AS ADULTS AND ITS DISPROPORTIONATE EFFECT ON MINORITIESDiversity CommitteeChairs: Amanda B. Buffinton - Bush Ross, P.A.; and Jessica Goodwin Costello - Florida Attorney General's Office of Statewide Prosecution

youth arrestedwere whitemales, but only24.4 percent of them weredirect filed.7

TheThirteenthJudicial Circuit(HillsboroughCounty) had thehighest transferof children toadult court from fiscal years 2009-10 through2012-13.8 For the 2013-14fiscal year, theThirteenthCircuit wasranked third in the state behind the Seventeenth and Sixth JudicialCircuits.9 In the Thirteenth Circuit,36.3 percent of the youth arrestedin the fiscal year 2013-14 wereblack males, while 56.4 percent(57/101) of the youth transferred to adult court were black males.10

During the same time period in the Thirteenth Circuit, 20.1 percentof the youth arrested were whitemales, and only 12.9 percent(13/101) of those direct filed werewhite males.11

Transferring juveniles into theadult system is both detrimental tothe public and devastating to thechildren transferred. It is harmfulto the public because “transferringyouth to the adult criminal systemis more likely to aggravaterecidivism than to stop it.”12

Children remaining in the juvenilesystem are less likely to commitcrimes upon release. Juveniles inadult facilities are at increased riskof being victimized. Children inadult prisons are more likely to bephysically and sexually assaulted

than those in juvenilefacilities.13

Juveniles alsolose the ability to receive much neededservices whenincarcerated inadult facilities.For example,children in the juvenilesystem receiveeducational and vocationalservices,behavioral andmental healthtreatmentservices, and

substance abuse and sex offendertreatment services, when needed.14

Denying these vital educational and rehabilitative services tochildren transferred into the adultsystem makes them less productivemembers of society upon re-entryfrom the penal system.

The impact of being sentencedas an adult has lifelongramifications. Children who havebeen transferred to the adultsystem face impediments to voting;obtaining gainful employment,public assistance, and driver’slicenses; and preventing access to their criminal records.15 It isencouraging that direct filenumbers are on the decline andthat the Thirteenth Circuit is no longer ranked first in the statefor direct files, but it is deeplytroubling that the percentage ofminorities direct filed is increasing.If, as they say, the children are our future, then shouldn’t we beencouraging their rehabilitation

Florida is one of 15 states(plus the District ofColumbia) with direct filestatutes.1 Under Florida’s

direct file law, prosecutors have theability to try juveniles as adults.2

The direct file process allows a state attorney to use his or her“judgment and discretion” totransfer children age 16 or 17 (atthe time of the alleged offense) toadult court when the public interestrequires that “adult sanctions beconsidered or imposed.”3

Not everyone is aware thatprosecutors wield this power.Approximately 98 percent ofjuvenile cases transferred to adultcourt in Florida are a result of the direct file statute.4 Florida has the dubious distinction ofhaving transferred more childreninto the adult system than anyother state.5 This is problematic for several reasons.

The statistical data indicates thatthe discretionary nature of Florida’sdirect file statute has a disturbing,disproportionate impact onminority children. Human RightsWatch analyzed Florida data fromfiscal years 2008-09 to 2012-13. It discovered that, while only 27.2percent of arrested youth wereblack males, 51.4 percent of theyouth transferred into the adultsystem were black males.6 Bycomparison, during the same timeperiod, 28 percent of the total

Approximately 98 percent

of juvenile cases

transferred to adult court

in Florida are a result of

the direct file statute.



CHARGING CHILDREN AS ADULTS AND ITS DISPROPORTIONATE EFFECT ON MINORITIESDiversity Committee

through the juvenile system, ratherthan dooming them to victimizationand a lifetime of lost potential inthe adult system?

1 Human Rights Watch, Branded forLife: Florida’s Prosecution of Childrenas Adults Under Its Direct File Statute18 (2014).

2 § 985.557, Fla. Stat. (2014).3 Id.4 Human Rights Watch, supra note 1,

at 19.5 Colleen Jenkins, Florida Leads

Nation in Locking up Kids in Adult Jails,Tampa Bay Times (Nov. 11, 2009),http://www.tampabay.com/news/courts/florida-leads-nation-in-locking-up-kids-in-adult-jails/1051218.

6 Human Rights Watch, supra note1, at 29 tbl.2.

7 Id.8 Fla. Dep’t. Juvenile Justice, http://

www.djj.state.fl.us/research/delinquency-data/delinquency-profile/delinquency-profile-dashboard (last visited Jan. 15, 2015).

9 Id.10 Id.11 Id.12 Letter from W.G. Bankhead, Sec’y,

Dep’t of Juvenile Justice, to Jeb Bush,Governor of Fla.; John McKay, Presidentof Fla. Senate; Tom Feeney, Speaker ofFla. House of Representatives, in *3Lonn Lanza-Kaduce et al., Fla. Dep’t.of Juvenile Justice, Juvenile Transfer toCriminal Court: Final Report (2002),available at http://www.campaignforyouthjustice.org/documents/FLjuveniletransferstudy.pdf.

13 Edward P. Mulvey & Carol A.Schubert, Transfer of Juveniles to Adult

Court: Effects of a Broad Policy in One

Court, Office of Juvenile Justice Bull.,Dec. 2012 at 4.

14 Circuit Judge Ralph Stoddard,Direct File Transfer to Adult Court:

Juvenile Sanctions for Youth Prosecuted

as Adults, Powerpoint presentation atConference on Continuing JudicialEducation for Circuit Court Judges inAugust 2013.

15 After Prison: Roadblocks to Reentry,

Legal Action Center, http://www.lac.org/roadblocks-to-reentry/upload/reportcards/11_Image_Florida%20final.pdf (last visited Nov. 16, 2014).

Author: Amanda Buffinton – Bush

Ross, P.A.


LEGALINFORMATIONCENTER

Bay Area Legal Services’ Legal

Information Center (LIC) provides

support and assistance to individuals

representing themselves in a

Hillsborough County family law case.

The LIC, located in the George

Edgecomb Courthouse, assists pro se

litigants by providing tools and

guidance to help them resolve their

legal issues. Since its inception in

October 2000, several supporters have joined BALS to fund the LIC, including Buchanan Ingersoll & Rooney PC/Fowler White Boggs, Carlton Fields

Jorden Burt, Holland & Knight, and TECO Energy. To learn about adding your name to the LIC’s list of supporters, please contact Development Director

Rose Brempong at (813) 232-1222, Ext. 131, or [email protected].


NEW SEASON, NEW ELDER LAW PROGRAMS!Elder Law SectionChairs: Elizabeth P. Allen - Gibbons, Neuman, Bello, Segall, Allen & Halloran; and Debra L. Dandar - Tampa Bay Elder Law Center

programs suchas QMB,SLMB, QI1, and MedicallyNeedy. Travisalso answeredquestionsregardingspecial-needstrusts. OnMarch 13, April Hill and JavierCentonzio gave us an insider’soverview of the VA health caresystem, as well as VA Pension and Aid & Attendance, service-connected compensation, andother VA benefits. April (Hill LawGroup) is a frequent lecturer onthese topics, and Javier (also of Hill Law Group) is a former clerkfor the Federal Court of Appealsfor Veterans’ Claims.

On April 23, Tae KelleyBronner, a renowned expert on the subject of homestead, will bethe speaker for a joint luncheonbetween our section and the RealProperty, Probate & Trust LawSection. Tae will provide us with areview of the relevant law regardingthe constitutional homesteadexemption from claims of creditorsand the impact of trusts on theavailability of that exemption.

Dale Krause has beenrescheduled and will appear at ourfinal meeting of the year on May29 to provide us with an overview

of Medicaidand VAcompliantannuities,options availableto deal withnoncompliantannuities, andthe use ofannuities inpersonal servicecontracts.

Eachluncheon qualifies for one hour of CLE credit and provides theopportunity to visit and networkwith elder law attorneys and otherprofessionals. Networking begins at 11:30 a.m., with luncheons atnoon. All luncheons are held in theChester H. Ferguson Law Center.

So please join us at our meetings,and as always, if you havesuggestions or ideas or would like to submit an article for publicationin the Lawyer magazine, pleasecontact Elizabeth P. Allen —[email protected] or (813) 877-9222 — or Debra L. Dandar —[email protected] or (813) 282-3390.

We look forward to seeing yousoon and hope that you enjoy ourfinal speakers for the 2014-2015 year.

Authors: Elizabeth Allen - Gibbons,

Neuman, Bello, Segall & Allen, P.A.;

and Debra Dandar - Tampa Bay

Elder Law Center

Spring is just around thecorner! As we switch gearsto a new season, we wouldlike to take this opportunity

to share what occurred during ourfirst meetings of 2015 and to updateyou on the lineup of speakers forthe rest of the 2014-2015 year.

Our first speaker of 2015 wasscheduled to be Dale Krause ofKrause Financial Services; however,due to bad weather and flightdelays, Dale was unable to attendthe meeting. Instead, the meetingwent forward as an open forum,which was well attended and verywell received. Topics discussedincluded gifting-exempt assets, acomplex SSI case study, and use of contingent SNTS in wills. Sincethis format worked so well, we maywish to consider scheduling at leastone open forum meeting each yearso that we can discuss complexissues that each of us is facing.

On February 5, Travis Finchum,a co-trustee of Guardian PooledTrust, instructed us on SSI rulesand lesser-known Medicaid

Each luncheon qualifies for

one hour of CLE credit and

provides the opportunity

to visit and network with

elder law attorneys and

other professionals.

Stay connected to your colleagues by renewing your HCBA membership. Call (813) 221-7777 to renew today!


FEDERAL JUDGE RULES FLORIDA MEDICAID PROGRAM VIOLATES U.S. LAWSHealth Care Law SectionChairs: T.J. Ferrante - Carlton Fields Jorden Burt, P.A.; and Sara Younger - BayCare Health System

AHCA is the agencyresponsible for providingoversight ofFlorida’sMedicaidprogram and is authorized tomake payments for Medicaid-covered goodsand services;DCF isresponsible for makingMedicaideligibilitydeterminations;and DOHadministersFlorida’sChildren’sMedical Services program, which is responsible for ensuring thatcertain Medicaid patients withspecial health care needs receiveMedicaid services.

Among its findings, the courtstated that these agencies violatedfederal law because Florida’s

Medicaidprogram had notcompensatedprimary carephysicians orspecialists atcompetitiverates ascomparedwith rates paidby Medicare or privateinsurancepayors.2

The federalMedicaidstatutesrequire thatmedicalassistance befurnished withreasonable

promptness to all Medicaid-eligibleindividuals (the “ReasonablePromptness” provision).3 Suchmedical assistance includes “earlyand periodic screening, diagnostic,and treatment services” (EPSDT

I n an unpublished decision inthe final days of 2014, theUnited States District Courtfor the Southern District of

Florida found that Florida’s healthcare system for needy and disabledchildren violated several federal laws.

The action in Florida Pediatric

Society v. Dudek1 was initiated in2005 by the Florida PediatricSociety, the Florida Association ofPediatric Dentists, and on behalf of several children in the Medicaidprogram by their parents or legalguardians. The defendants includedthe Florida Agency for HealthcareAdministration (AHCA), theFlorida Department of Childrenand Families (DCF), and theDepartment of Health (DOH). Continued on page 51

“The court found that

Florida’s physician

reimbursement-setting

practice resulted in artificially

low Medicaid rates for

certain physician services ...”


FEDERAL JUDGE RULES FLORIDA MEDICAID PROGRAM VIOLATES U.S. LAWSHealth Care Law Section

Services) for Medicaid-eligibleindividuals younger than 21.4

The court reasoned that the state’sstructure for setting physicianreimbursement failed to account for statutorily mandated factors,including sufficient compensationto assure an adequate supply ofMedicaid physicians to meet theEPSDT Services requirement.5

Other factors the court reliedupon to find an improperdeprivation of rights to EPSDTServices included violations (oftenthe result of bureaucratic error) of continuous Medicaid eligibilityrequirements6 and the failure ofAHCA and DCF to promptly work together to ensure that when appropriate, newborns ofMedicaid-eligible mothers were also Medicaid-eligible.7 The courtexplained that failure in this “babyof ” process resulted in delayedactivation of the child’s Medicaidnumber, which in turn delayed thechild’s receipt of EPSDT Services(and violated the ReasonablePromptness provision) or his or her provider’s receipt of payment.8

The court also found thatFlorida’s physician reimbursement-setting practice resulted inartificially low Medicaid rates forcertain physician services withoutconsideration of physician-incurredcosts or what is needed forsufficiently competitive rates toattract providers.9 In support of itsfinding, the court pointed to AHCA’s

process for determining FloridaMedicaid rates for certain services;to achieve budget neutrality,AHCA used a conversion factor toconvert Medicare’s reimbursementrates to lower rates for use in theFlorida Medicaid program.10

The defendants raised mootnesspoints in response to the plaintiffs’arguments, and as of thesubmission date for this article, a hearing is pending for furtherbriefing with the parties on thesepoints.11 The discussions onMedicaid expansion in Florida, as well as Medicaid physicianreimbursement under theAffordable Care Act, continue in 2015. It will be interesting to see how these discussions arecolored by the points raised in the Florida Pediatric Society case.

1 Florida Pediatric Soc’y v. Dudek,Doc. No. 1294, No. 1:05-23037-CIV(S.D. Fla. Dec. 31, 2014).

2 Id. at 144.3 42 U.S.C. § 1396a(a)(8) (2015).4 42 U.S.C. § 1396d(a)(4)(B) (2015). 5 Florida Pediatric Soc’y, Doc. No.

1294 at 144.6 Id.7 Id. at 145.8 Id. at 74-75, 145.

9 Id. at 144.10 Id. at 59, 143.11 Id. at 153.

Author:

Amy Nath -

Shriners Hospital

for Children


Did you know the HCBA is launching a new website soon? Look for big

changes in the months to come!


CONDUCTING AN INTERNAL I-9 AUDITImmigration & Nationality SectionChair: Maria del Carmen Ramos - Shumaker, Loop & Kendrick, LLP

they getaudited. Butemployersshould alsoconsiderconducting aself-audit tominimize thepotential forfines. Here arefive things toconsider whenconducting anI-9 self-audit:

1. ReviewCurrent I-9Procedures.Review yourverificationsystem andpolicies toensure that your policies satisfyIRCA and are being followed in practice.

2. Compare I-9 Forms withPayroll Records. Prepare acomputer printout of all employeeshired since November 6, 1986,containing the date of hire anddate of termination for all suchemployees, to ensure there is an I-9 form for each employee.

3. Review How I-9 FormsAre Maintained. Make sure the I-9 forms are separated fromemployees’ personnel files andmaintained in a separate I-9 file (or maintained electronically incompliance with the specificcontrols for electronic retention).

4. Correcting and/orReplacing a Form I-9. If theemployer needs to correct the I-9form, the new information shouldbe inserted, signed, and dated as of

the time of theinsertion. If the omission ormistake was inSection 1 of the I-9 form, the employeeshould also signand date thecorrection.Above all, theform should notbe backdated.

5. Completingan Audit.Prepare a filememo thatincludes, at a minimum,errors discovered,corrections

made, actions taken, any changes in policies, or training to undertake.

More than ever, employers shouldbe particularly diligent when itcomes to complying with their Form I-9 obligations. Remember, an employer faces civil and potentialcriminal liability for hiringundocumented workers (regardlessof whether it was done knowingly).At the same time, an employeropens itself up to discriminationcharges for not hiring newlydocumented workers who previouslypresented fraudulent documents.Going forward, worksite enforcementinspections are only expected toincrease. So being proactive andconducting a proper self-audit willbe key to minimize potentiallysubstantial fines.

Author: Maria del Carmen Ramos -

Shumaker, Loop & Kendrick, LLP

Since 2009, there has been a dramatic change inImmigration and CustomsEnforcement’s (ICE)

workforce enforcement strategy.Before 2008, ICE focused itsenforcement efforts almostexclusively on illegal workers. In2009, however, ICE shifted its focusfrom illegal workers to employerswho knowingly hired unauthorizedworkers. As part of its strategy oftargeting employers, ICE begansetting up centers across thecountry that are fully dedicated to worksite inspections.

Under the Immigration Reformand Control Act of 1986 (IRCA),employers are required to verifythat an employee is authorized to work in the United States bycompleting and maintaining acompleted Form I-9 for eachemployee hired on or afterNovember 6, 1986. ICE enforcesemployers’ obligations under IRCAby, among other things, inspectingtheir I-9 forms.

Each I-9 violation can carry apenalty of $110 to $1,100 per form.Of course, the easiest way foremployers to avoid potential fines is to make sure they are complyingwith their I-9 obligations — before

So being proactive and

conducting a proper

self-audit will be key to

minimize potentially

substantial fines.

Have office space to rent? Advertise it on hillsbar.com.


DIVERSITY COMMITTEE CLE

The HCBA Diversity Committee presented a lunch with the judges and

a CLE on Diversity, Inclusion and the Effect of Implicit Bias on December 5

at the George E. Edgecomb Courthouse. The luncheon featured a panel

presentation related to emerging legal issues in fairness and diversity

from the practitioner’s perspective. The panel was moderated by Judge

Scott M. Bernstein, chair of the Florida Supreme Court Standing

Committee on Fairness and Diversity. After the luncheon, Professor

Rachel Godsil, co-founder and director of research for the Perception

Institute, discussed the challenges

of achieving diversity and inclusion

in the legal profession and how

implicit bias plays a factor for

women and minority attorneys.

The Diversity Committee would like

to thank the luncheon’s sponsor:


WARRANTIES OF NONINFRINGEMENT AND ALLOCATION OF INFRINGEMENT RISKIntellectual Property SectionChairs: Jeff Fabian - Shumaker, Loop & Kendrick, LLP; and Mindi Richter - Shumaker, Loop & Kendrick, LLP

infringementclaim. Sellersmay beresponsible to indemnify a buyer fordamages, aswell as theattorneys’ feesand costs ofdefending aninfringementclaim. In somecases, this can be akin togiving buyerscarte blanche

to defend theclaim, andsellers mighteven be on the hook forsettlementsentered by a buyer.

Importantly,proof ofinfringementisn’t necessaryto breach thewarranty, anda seller’s dutyto indemnify abuyer arises upon receiving noticeof the infringement claim. Courtopinions vary on what constitutes a “rightful” infringement claimtriggering the duty to indemnify,but under the most lenientstandards, a rightful claim is any nonfrivolous claim having asignificant impact on a buyer’sability to use purchased goods. In short, sellers might be on thehook to indemnify a buyer evenwhen the claim is relatively weak,and the monetary penalties can be substantial.

Sellers can try to protectthemselves by disclaiming the

warranty ofnoninfringement,as well as otherwarranties.Disclaimers mustbe in writing,reasonable, andconspicuous. It isa best practice todisclaim specificwarranties byname. Forobvious reasons,buyers might not accept a warrantydisclaimer. And in somecases, the parties mightexchangediffering contractforms that“knock out” any warrantydisclaimers.

The best wayto avoid theseproblems is for the parties to negotiate a signedagreement.

The parties should consider theiroptions in allocating infringementrisk, such as requiring a judgmentbased on a contested claim beforeindemnity is triggered, adding the right to negotiate a license,refunding the purchase price orcost of a substitute product, or an option for the seller to defendinfringement claims. Negotiationcan be time-consuming andexpensive, but it is the best way to avoid surprises and ensure anenforceable agreement.

Author: Jeff Fabian - Shumaker,

Loop & Kendrick, LLP

In the electronic age,purchases move fast and oftenwithout a contract. Theparties to a transaction may

give little thought to allocating therisks involved. Even when theparties do enter a writtenagreement, with so many terms tonegotiate and consider, the risk ofintellectual property infringementmight seem too remote to address.

So what happens then if thebuyer or seller is accused ofinfringing the intellectual propertyrights of a third party? The answerto this question can have seriousconsequences. The mere threat ofinfringement can drive buyers to a different supplier. And the cost of litigating intellectual propertydisputes can be substantial. A 2013American Intellectual PropertyLaw Association survey reportedthat the average cost of litigating a patent-infringement suit throughtrial was $930,000 for cases wherethe amount of damages at stakewas less than $1 million. Theaverage cost of litigating even the smallest copyright, trademark,or trade secret disputes can rangefrom $373,000 to $581,000.

When the issue is not addressedby a written contract, sellers aregenerally deemed to have soldgoods subject to an impliedwarranty of noninfringement —that is, sellers warrant that thegoods are free from any “rightful”

When the issue is

not addressed by a written

contract, sellers are

generally deemed to

have sold goods subject

to an implied warranty

of noninfringement.


On December 11, theNational LaborRelations Board(NLRB) reversed

its prior position and held thatemployee use of email for activitiesdirected to terms and conditions ofemployment must presumptively bepermitted by employers who havegiven employees access to theiremail systems. The board’s decisionin Purple Communications, Inc.,

361 NLRB 126 (2014), means thatemployees have the legal right to use company email for non-business-related reasons, includingunion organizing, and will requiremost employers to revise theirelectronic communications policies.The shift in the board’s opinionreflects the change in its politicalmakeup, with its three Democratsreversing prior precedent and itstwo Republicans dissenting.

The Purple Communications

decision is troublesome foremployers because it is essential for most employers to provideemployees with access to emailsystems for business purposes.Previously, in Register-Guard, 351NLRB 1110 (2007), the board heldthat an employer may completelyprohibit employees from using itsemail system for non-businesspurposes, provided it did not applythe ban discriminatorily. In Purple

Communications, the board decidedthis analysis was “clearly incorrect,”

focusing toomuch onemployerproperty rightsand too little onthe importanceof email toworkplacecommunication.The majorityopinion foundemail to be akinto the “newwater cooler,” a “naturalgathering place”for employees.Because anemployer may not bandiscussions on its propertyduring non-working time, an employer maylikewise not banconversationsoccurring through email.

The board characterized itsdecision as “carefully limited” intwo ways, neither of which providesmuch comfort to employers. First,the decision only applies toemployees who have already beengranted access to email systems,and employers are not required to grant access; however, mostalready do. Second, in undefinedand “special circumstances,” anemployer may justify a total ban on non-work use of email tomaintain production or discipline.

An employer is permitted toapply limited, uniform, andconsistently enforced controls over the email system, such asprohibiting mass emails and largeattachments or audio/videosegments. Further, “[a]n employer’smonitoring of electronic

communicationson its emailsystem willsimilarly belawful so long as the employerdoes nothingout of theordinary, suchas increasingmonitoringduring anorganizationalcampaign, or focusingmonitoring onunion activists.”Additionally, an employermay continue to notifyemployees that it monitorsemail formanagementreasons and that there is

no expectation of privacy inemployee use of the email system.

The board continues toincreasingly govern the non-unionworkplace. Although the decisionwill likely be appealed to federalcourt, employers are urged toimmediately review their handbooksand consider revising them to come into compliance with the new standard. As a final note, thePurple Communications decisioncame just one day before the boardimplemented its long-anticipated“ambush election rules.” Now many union elections will occurwithin a mere 10 to 21 days after a union requests a vote.

Authors: Scott T. Silverman -

Akerman LLP and Dee Anna D. Hays

- Ogletree, Deakins, Nash, Smoak &

Stewart, P.C.

On December 11, the NLRB

reversed its prior position

and decided that

employees have the legal

right to use company

email for non-business-

related reasons, including

union organizing.

NLRB RULES THAT EMPLOYERS MUST PERMIT NON-BUSINESS USE OF EMAIL Labor and Employment SectionChairs: Dee Anna Hayes - Ogletree, Deakins, Nash, Smoak & Stewart, P.C.; and Scott T. Silverman - Akerman LLP

cuisine. He lived his life to thefullest and is an example to us all.He never let the job get in the way of truly living and doing thethings he loved with those he loved.Alberto was one of a kind. He will truly be missed, not only as a colleague, a great family lawattorney, but also a great friend.He leaves a void in our communitythat cannot be filled. We willforever remember Alberto.

Authors: Amber Boles - Phipps and

Boles, PA; Courtney Bowes - Bowes

Law Group; Natalie Baird - Baird

Law Group

There is a saying: “It’snot the years in yourlife but the life in youryears.” Often we hear

this when we are mourning the loss of someone who was taken toosoon, who did not get the chance torack up enough years. The Marital& Family Law Section was hit hard this year with the unexpectedpassing of Alberto Romero. He was loved and respected by all andlived life to its fullest, savoringevery one of the few years he hadwhile making a memorable impacton our community.

One of the most difficult tasks as a family law attorney is to beprofessional while advocating forour clients given the high emotionsmost cases involve. Alberto wasseen by his peers as always beingprofessional, courteous, anddisplaying the utmost of ethics inevery case he handled. He was agreat lawyer, going the extra mileto become board certified. No case was too difficult, and healways took the challenge. He wasa mentor to so many of us and wasoften consulted by his colleaguesregarding issues in family law cases.

He is described by many as a “class act.” Alberto’s smilebrightened every room he entered,no matter the situation he waswalking into. When Alberto madean appearance in one of your cases,you knew the battle was going to be bearable. You also knew thatwhatever Alberto presented andrepresented was going to be honest and truthful. He always presentedhis arguments in an eloquent way.He was wise beyond his 39 years.

He was a great friend to manyof us, never too busy to take aphone call or chat about an issue orproblem you may have had — bothprofessional and personal. He was

trustworthy, and you knew it theminute you met him. Those of uswho were close to him remember his contagious laughter. Weremember his impeccable andclassy style. He always had apositive attitude, and when we were stressed or sad, he knew whatto say to help us get through thatemotion. Alberto was very special,and he made each one of us feelvery special as his friend.

It can never be said that Albertodidn’t “live.” Alberto loved totravel and experience culture. Hewas never afraid to go to a newplace, meet new people, try new

Alberto was seen by his peers as always being

professional, courteous, and displaying

the utmost of ethics in every case he handled.


ALBERTO ROMERO (1975-2015)Marital & Family Law SectionChair: Kristin Kirkner - DeCort & Kirkner

Above: Alberto on vacation

Right: Alberto with

Courtney and Amber


FEDERAL PRO BONO MEDIATION INITIATIVEMediation & Arbitration SectionChair: Hilary High - Hilary High, P.A.

indigent litigantsto participate inmediation and get its benefits,namely: (1)containing costs,(2) eliminating theunpredictabilityof judges, and (3) allowinglitigants to controltheir own destiny.

In addition tobenefitting under -

privileged litigants, the initiativeprovides benefits to the mediatorson the roster. While satisfyingprofessional responsibility goals, the initiative provides opportunitiesfor mediators to build or expandtheir practices. From a professionaldevelopment perspective, it is anopportunity for mediators to gainmediation experience. From amarketing perspective, it givesmediators exposure to lawyers,judges, and parties who may hirethem in the future for paying cases.And who knows, it just might makeyou really happy!

If you are interested in beingincluded on the roster, please emailyour name, contact information,and a brief description of the types of cases you have experiencehandling as a lawyer or mediator to

[email protected].

Author:

Amy Mahan

Tamargo - Tamargo

Mediation, PLLC

“I don’t know what your destiny will

be, but one thing I know: The only

ones among you who will be really

happy are those who have sought

and found how to serve.”

—Albert Schweitzer

In addition to boostinghappiness, providing probono service fulfills lawyers’and mediators’ professional

responsibilities. Rule 4-6.1 of theRules Regulating The Florida Barsets forth the aspirational goal thatmembers provide at least 20 hoursof pro bono legal services to thepoor annually. Likewise, Rule 10.690of the Florida Rules for Certifiedand Court-Appointed Mediatorssets forth mediators’ responsibilityto provide pro bono mediationservices. A new opportunity toprovide such services is underway.The HCBA’s Mediation &Arbitration Section has teamed up with the U.S. District Court for the Middle District of Floridato create a pro bono mediationinitiative. The initiative providesmediators with opportunities tooffer the pro bono mediationservices envisioned by theprofessional responsibility rules.

The initiativehas built a roster ofmediators who agree tomediate federalcases on a pro bono basis.To qualify,mediators mustbe certifiedpursuant toMiddle DistrictLocal Rule9.02. Middle District judges andmagistrates, as well as lawyers andparties involved in pro bono cases,have access to the roster. Theseusers contact mediators directly to schedule mediation. Whencontacted, roster members are notobligated to accept the mediation,allowing a mediator to decline a case he or she does not feelcomfortable mediating, such as a case involving unfamiliar orcomplex subjects or legal concepts.

Bankruptcy Court JudgeCatherine McEwen, past chair ofthe Thirteenth Judicial Circuit’s ProBono Committee, was instrumentalin creating the initiative and hasused the roster in cases that havecome before her. Some examples of the types of cases where she has assigned mediators from theroster include contract, fraud, andsecurities fraud cases. She oftenassigns mediators from the roster in cases where there is a pro bonoattorney or where one side has anattorney and the other is pro se.The initiative provides a meaningfulopportunity for pro se or other

While satisfying

professional

responsibility goals,

the initiative provides

opportunities for

mediators to build or

expand their practices.

Need to book a room for a mediation?Call us at (813) 221-7777.


TRIAL & LITIGATIONSECTION HONORSRETIRING JUDGES

The HCBA Trial & Litigation Section honored the retiring

judges at a special luncheon on December 11. Section Chair

Kevin Napper presented Chief Judge Manuel Menendez Jr.,

Judge James Arnold, and Judge Sam Pendino with plaques,

and the judges shared some of their favorite stories and

answered questions from the audience. Also at the luncheon,

Thirteenth Judicial Circuit Pro Bono Committee Chair

Rosemary Armstrong spoke to the crowd about how children

in the foster care system need help from pro bono attorneys.

The section would like to thank the luncheon’s sponsor:

M U R P H Y L AW

Personal Injury

Wrongful Death

Commercial Litigation

Contract Disputes

Insurance Claims

24 Years of Trusted Experience

Jeffrey D. Murphy, P.A.

800 W. De Leon Street, Tampa, FL 33606

p: 813.443.5553 | f: 813.436.5190

mail: [email protected]

An Experienced Attorney You Can Trust

with Your Referral and Conflict Cases

“As always, I remain committed to providing my clients with the representation

and personal attention they expect and deserve. I gladly pay referral fees as

allowed by the Florida Bar. Th ank you for your continued trust.”

- Jeff rey D. Murphy

Rated AV Preeminent by Martindale-Hubbell


LEND AN EAR, LEND A HEART: THE MISUNDERSTOOD AFFLICTION OF PTSDMilitary & Veterans Affairs Committee Chair: Bob Nader - Nader Mediation Services; Military Liaison: Lt. Col. Christopher Brown - 6th Air Mobility Wing

says ultra-sensitivity to risk anddanger isnormal for a returningveteran andcan last up tosix months.Concern maybe warrantedafter threemonths ifyour vetappears stuckor movingbackward.After sixmonths, ifyour vet hasnot adaptedand cannotgo out atnight, has aheightenedsensitivityabout safety,is jumpy,can’t makereasonablejudgments about what reallyconstitutes a danger, has sleep disturbance, suffers fromextreme worry, has hostility in or withdraws from relationships,shows an inability to function, staysdisconnected, or displays anger oranxiety, he or she likely has reachedthe threshold of PTSD, and it’stime to get help. Other signsinclude hypervigilance, mistrust,alienation, flashbacks, nightmares,and guilt. When parents returnfrom military service and will not

attend their kids’ baseball orsoftball games,PTSD is fullblown, and lovedones must act.

PTSD isdisabling andpotentially lifethreatening. Itneeds attentionand care. PTSDhas nothing todo with beingstrong or weak,and it may notbe in proportion to the danger towhich a veteranwas exposed.

“It’s not a bigmystery like youmight think,”says Dr. Maher.“You should beon the lookoutfor it.” Dr.Maher says it’sOK to ask questions like: “I know you are

back; how are you doing? Is thereanything I can do for you? I knowit can be a tough time, and Iappreciate this can be a hard thing.If I can help you in any possibleway, please let me know.”

Avoidance of the subject byfamily and friends is absolutely thewrong response, Dr. Maher says.Giving your veteran space isappropriate, and you should never

Your cherished loved onesteps back on Americansoil, fresh home fromthe battlefield or

military service thousands of milesaway. Inside you burst with joy andrelief. Outside you brim with smilesand exultation. Normalcy hasreturned. The family is back in tact.All is right in the world. Wait just a minute please. Not so fast. Yourhomebound veteran may not feelthe same inside.

Nearly every returning militaryveteran who has been exposed todanger or lived in a threateningenvironment will suffer some formof Post-Traumatic Stress Disorder,or PTSD. They do not necessarilyhave to have been involved incombat. They may not experienceit the minute they arrive at ourshores. The indices of PTSD maynot be readily apparent, but theylurk within, and you can ultimatelysee it. You should realize it and tryto understand the extent of itsdebilitating grasp. You should askabout it in a tender, loving, non-confrontational way.

Dr. Michael Maher, a medicaldoctor board-certified in psychiatrywith a practice in south Tampa,

“Although they were

fireworks on the Fourth

of July, they still sounded

like incoming mortars!”

— A veteran’s admission


To join the HCBA’s Military & Veterans Affairs Committee, call (813) 221-7777.


LEND AN EAR, LEND A HEART: THE MISUNDERSTOOD AFFLICTION OF PTSDMilitary & Veterans Affairs Committee

pressure him or her into talking.However, simple, caring questionslike those above will help the vetease into the assistance he or sheneeds. Often, veterans or otherpeople suffering from PTSD are in denial, not so much that theywere in a rough and dangerousplace but more so in thinking, “I can handle it” or “It’s not reallygetting to me.” Loved ones shouldalways express “I’m here for you”and be open to their issues. Bepatient, as they may want torecount the same things repeatedly.

Dr. Maher says the best therapyfor PTSD is having someone totalk with and understand what theveteran has been through. Engagethe veteran in a meaningfuldiscussion of his or her experience,with compassion and respect. Bothprofessional help through cognitivetherapy and dialogue with familyand friends are invaluable. Medicaltherapy is secondary. The dualapproach of professional andfamily/friend help is the ticket tohealing. Relaxation techniques,support groups, family grouptherapy, exercise, being outdoors,and getting involved in church,

school, or volunteer organizationsare also beneficial.

Outward, demonstrable signslike fear, crying, and depressionmay not always be apparent.Whether deployed as active-dutypersonnel or through the reserves,whether in the Army, Navy, AirForce, Marines, or Coast Guard,veterans with PTSD may notdisplay such obvious symptoms.Thus, the need to ask is imperative... as well as to lend an ear and,most importantly, lend a heart.

Author: George E. Nader - Trenam

Kemker


Dale AppellMichael BroadusJames GiardinaTyler GordonLynn HanshawDane HeptnerTom HydeKari Metzger

Kemi OguntebiLawrence SamahaJim ThorpeRyan TorrensChip Waller

Robert WaltonDan Weisman

TO JOIN THE LAWYER REFERRAL & INFORMATIONSERVICE, PLEASE CALL (813) 221-7780.

THANK YOU TO OUR VOLUNTEERS FOR JANUARY’S ASK-A-LAWYER ON FOX 13!

TM

an action onbehalf ofhimself andfour relativesagainst aconservatorand trusteeswho weremanaging a trust for his aunt.

The FloridaBar began adisciplinaryaction againstRoss forviolating Rules4-1.4, 4-1.16,4-3.3, and 4-8.4. The refereerecommended that Ross should be suspended from the practice oflaw for six months. However, theSupreme Court entered an ordersuspending Ross for three years,finding that Ross “engaged inserious misconduct” for refusing toreturn client funds and “knowinglyfil[ing] a fraudulent document incourt.” Ross, 140 So. 3d at 521; see also Fla. Bar v. Kickliter, 559 So. 2d 1123 (Fla. 1990).

The Supreme Court declaredthat “[m]isrepresentations anddishonesty warrant severediscipline.” Ross, 140 So. 3d at522; see also Fla. Bar v. Hall, 49So. 3d 1254 (Fla. 2010) (entering anorder of disbarment for an attorneywho recorded a forged documentwith the clerk of court). Further,“[d]ishonest conduct demonstratesthe utmost disrespect for the courtand is destructive to the legal

system as awhole.” See

Fla. Bar v.

Head, 27 So. 3d 1, 8(Fla. 2010).Additionally,the courtaffirmed thata “lawyer isrequired topromptlydeliver to a client anyfunds that a client isentitled toreceive.” Ross,

140 So. 3d at 523; see also Fla. Bar

v. Grosso, 760 So. 2d 940 (Fla. 2000).The Supreme Court may impose

austere sanctions in disciplinaryactions because the “discipline[imposed] must protect the publicfrom unethical conduct, must be fair to a respondent yet sufficient to sanction the misconduct andencourage reformation andrehabilitation, and must be severe

enough to deter others who might be

prone or tempted to become involved

in like violations.” Ross, 140 So. 3dat 523 (emphasis in original); see also Fla. Bar v. Jasperson, 625 So. 2d 459 (Fla. 1993). Accordingly, anattorney’s easily avoidable conductin one or two matters can result insubstantial consequences, includinglosing the ability to practice law.

Author: Caroline Johnson Levine -

Office of the Attorney General

The Florida SupremeCourt has been vestedwith the exclusivejurisdiction to discipline

members of The Florida Bar. See Article V, § 15, Fla. Const. The Rules of Ethics provide thedisciplinary guidelines used by the court to determine whether anattorney can be disciplined. Whenthe Supreme Court determines the appropriate discipline for an attorney, it issues an opinionestablishing its jurisdiction, theapplicable rules, and its factualfindings for sanctioning an attorney.

In Florida Bar v. Ross, 140 So. 3d518 (Fla. 2014), the Supreme Courtconsidered whether Ross committedethical violations. Count 1 chargedthat Ross “was paid a $10,000retainer from which [Ross] wouldbe paid based upon billing at an hourly rate.” Id. at 519.Subsequently, the client terminatedRoss and made numerous requestsfor an accounting and final bill.After three years, Ross returned$5,000 to the client without a finalaccounting. Count 2 charged thatRoss forged the signature of aCalifornia attorney in order to file

RETENTION OF CLIENT FUNDS AND FORGERY REQUIRE SANCTIONSProfessionalism & Ethics CommitteeChairs: Joan Boles - Bay Area Legal Services; Caroline Johnson Levine - Office of the Attorney General


Disciplinary sanctions must

protect the public from

unethical conduct.

Do you have a colleague who hasn’t joined the HCBA yet?Encourage him or her to get involved!


and proceduresfor registering,includinginformationrequired of the owner orlienholder; thefee structure; the obligations of the owner,with respect tomaintaining theproperty; and the penalties forfailing to registerin a timelyfashion. Feestructures varyand could includecovering basicmaintenancecosts to motivateowners to restoreand reuse vacantproperties.

Best practicesinclude: providing the owner oragent phone number and mailingaddress within the state (if a PostOffice box is used, it must beaccompanied by a physical address);certifying and documenting theproperty has been inspected;designating and retaining anindividual or property managementcompany responsible for the securityand maintenance of the property;and remembering things change —for example, in one Florida county,the code changed for regulatingacceptable grass height.

It’s always best to consult withlocal counsel forany questions.

Author:

Jennifer Lima-Smith

- Gilbert Garcia

Group, P.A.

Vacant and abandonedproperty is recognizedas a significant barrierto the revitalization

of central cities. There have beennumerous U.S. studies on its effectson communities. Researching the topic online produces manyinformative articles. What’s thebottom line from all these surveys?Findings show that vacant andabandoned property is perceived asa significant problem by residentsand elected and appointed officialsin the nation’s largest central cities,especially those with large populations.

Think about your experiencesand feelings when you see vacantproperty in the neighborhood youhappen to be in. Usually, theemotion isn’t a pleasant one. Thereason for the vacancy or abandon -ment could be circumstances such asa lost job, illness, mismanagement offinances, death of the bread winnerin the family, reset of mortgageinterest rates, foreclosure, eviction,etc. Studies have shown that single-and multi-family housing, retailproperties, and vacant land are the most problematic types for most cities. Properties that havebeen abandoned and allowed tobecome overgrown, and thosewhose structures are left open andunsecured, not only have a negativeimpact on community value but alsocan create conditions that invitecriminal activity and foster an

environment thatis unsafe andunhealthy forour communities.It is for thesereasons thatabandonedproperties mustbe maintained soas not to createthese nuisanceconditions.

Cities andcounties use a variety ofregistrationordinances,regulations, and innovativetechniques toaddress thisproblem,includingaggressive codeenforcement, tax foreclosure,eminent domain, and cosmeticimprovements. In Florida, regulations,codes, and ordinances outline whichproperties need registration.

Purposes for vacant propertyregistration ordinances are threefold:

1. To ensure that owners ofvacant properties are known to the city and other interestedparties and can be reached if necessary;

2. To ensure owners of vacantproperties are aware ofrelevant codes and regulations;

3. To ensure owners meetminimum standards ofmaintenance for vacancies.

A fourth purpose, although notalways stated, is to motivate ownersto use the properties.

Ordinances should include thefollowing elements: a clear definitionof which properties and whichparties must register; require ments

Findings show that

vacant and abandoned

property is perceived as

a significant problem by

residents and elected and

appointed officials in the

nation’s largest central

cities, especially those

with large populations.

VACANT AND ABANDONED PROPERTY REGISTRATIONReal Property, Probate & Trust Law SectionChairs: Stephanie Adams Caldwell - Shutts & Bowen, LLP; Michael Kangas - Phillip A. Baumann, P.A.


transactionsbetween theparties to bebrought in the UnitedStates DistrictCourt for the SouthernDistrict of New York. Thebroker-dealeragreements also containedmerger clauses stating that they and any other agreements executedin connection with the ARScontained the entire agreementbetween the respective parties tothose agreements.

The public financing authoritiesbrought FINRA arbitrationproceedings against their respectivefinancial services firms, allegingthat the FINRA-member firms hadfraudulently induced the publicfinancing authorities to issue theARS. Both financial services firmssued in federal district court toenjoin the FINRA arbitrations,arguing in part that the forumselection and merger clauses in thebroker-dealer agreements supersededthe FINRA rule that requiredarbitration. Finding that the forumselection clauses in the broker-dealeragreements overrode the FINRArule governing arbitration, thedistrict court granted the financialservices firms’ motions forpreliminary injunction.

The Second Circuit affirmed,first noting that FINRA’s arbitrationrule, Rule 12200, supplied writtenagreements to arbitrate between the financial services firms and the respective public financing

authorities. As such, thefinancial servicesfirms would berequired toarbitrate thepublic financingauthorities’claims if theiragreements werenot otherwisesuperseded. Theappellate court

observed that an agreement toarbitrate is superseded by a later-executed agreement containing aforum selection clause if the clausespecifically precludes arbitration,although the forum selection clauseneed not mention arbitration tospecifically preclude it. Rather, tosupersede the default obligation toarbitrate under FINRA Rule 12200,the forum selection clause need onlybe “sufficiently specific to impute tothe contracting parties the reasonableexpectation that they would litigateany disputes in federal court.” Id. at216 (quoting Goldman v. City of Reno,

747 F.3d 733, 744 (9th Cir. 2014)).The Golden Empire court found

the forum selection clause at issue,which stated “all actions andproceedings ... shall be brought” inthe Southern District of New York,to be all inclusive and mandatory.As such, the court concluded thatthe forum selection clause, buttressed

by a mergerclause, supersededthe FINRAarbitration rule.

Author: Lonnie L.

Simpson - Shutts

& Bowen, LLP

The Second Circuit

concluded that an

all-inclusive and

mandatory forum selection

clause superseded the

FINRA arbitration rule.

The U.S. Court ofAppeals for the SecondCircuit recentlyconsidered whether a

forum selection clause defeated acustomer’s right to arbitrate underthe Financial Industry RegulatoryAuthority (FINRA) rules. In

Goldman, Sachs & Co. v. Golden

Empire Schools Financing Authority,

764 F.3d 210 (2d Cir. 2014), theSecond Circuit concluded that anall-inclusive and mandatory forumselection clause superseded theFINRA arbitration rule, precludingcustomers from arbitrating theirclaims through the FINRA disputeresolution process.

In Golden Empire, two publicfinancing authorities retained twofinancial services firms to underwriteissues of auction rate securities(ARS) through written underwritingagreements. The underwritingagreements were silent as toarbitration. In separate writtenbroker-dealer agreements, thepublic financing authorities alsoretained the financial services firmsto manage the auctions for thesecurities issued, among otherservices. The broker-dealer agree -ments contained forum selectionclauses that required “all actionsand proceedings” related to the

FORUM SELECTION CLAUSE TRUMPS OBLIGATION TO ARBITRATESecurities Law SectionChairs: Dominique Heller - Wiand Guerra King; and Jared Perez - Wiand Guerra King

Connect with other HCBA members in our group on LinkedIn.


the offer andthe taxpayermakes all ofthe payments,then the debt is consideredpaid. If theIRS rejects the offer, thetaxpayer stillhas the optionof requestingmediation.Taxpayers can also askthe IRS to put them on an installmentagreementallowing themup to six yearsto pay back

the tax debt and interest. Most clients we see at the LITC

feel overwhelmed by their taxproblems and appreciate theassistance we provide. The LITCwelcomes members of the Bar who would like to assist low-incomeresidents on a pro bono basis. For attorneys who do not practicetax law, we plan to offer a trainingsession with members of the HCBATax Law Section as instructors. Formore information about volunteering,go to www.bals.org and click on the

“Give Help” tab toregister to becomea volunteer.

Author:

Nancey G. Penner -

Bay Area Legal

Services

Bay Area Legal Serviceshas operated a LowIncome Taxpayer Clinic(LITC) since 2002 with

funding provided by the TaxpayerAdvocate Service of the InternalRevenue Service. The LITCprovides legal services to all eligibleresidents of Hillsborough and Pascocounties. Individuals who are at orbelow 250 percent of the povertylevel are eligible, and in compellingcircumstances, services can beprovided to clients above that level.If you encounter clients who arehaving problems with the IRS,please have them contact us directlyat (813) 232-1343.

When the IRS finds a problemwith a return, its first notice givesthe taxpayer an opportunity to sendmore documentation to explainwhy the taxpayer believes the taxreturn as prepared is correct. If thetaxpayer ignores this notice or failsto provide sufficient documentation,the IRS issues a Notice ofDeficiency. This second notice givesthe taxpayer 90 days to file apetition in Tax Court. An appealsofficer and/or IRS counsel willcontact the taxpayer prior to thecourt hearing to try to come to

HELP LOW-INCOME CLIENTS RESOLVE PROBLEMS WITH THE IRSTax Law SectionChairs: Brian R. Harris - Akerman LLP; Justin Klasky - Owens Law Group, P.A.

agreement onsome or even all of the issuesin the case.Instead of Tax Court, the taxpayer can elect to go through an appealsprocess, whichis designed to be fair andimpartial to both the IRSand to thetaxpayer. If the appealsprocess does not resolve the issues, thetaxpayer canrequest mediation as long as the caseis not filed in Tax Court.

Unfortunately, some taxpayers donot respond to these initial contactsfrom the IRS, nor do they seekassistance until after the IRS placesa lien or levy on their incomeand/or assets. Some will qualify for “Currently Not Collectible”status due to low income and lackof resources. Once the IRS agrees that the taxpayer cannot pay thedebt at this time, the IRS suspendscollection activities, but the interestand the debt continue to grow.Another option is to submit anOffer in Compromise documentingall assets and resources and askingthe IRS to agree to allow thetaxpayer to pay less than the totalamount of the debt in installmentswithin two years. If the IRS accepts

Most clients we see at

the LITC feel overwhelmed

by their tax problems

and appreciate the

assistance we provide.

Find pro bono training opportunities at hillsbar.com

NEW PLEADING REQUIREMENTS FOR MORTGAGE FORECLOSURESTrial & Litigation SectionChair: Kevin Napper - Carlton Fields Jorden Burt, P.A.

Residential mortgageforeclosures remain a minefield for theunwary practitioner.

Without much notice and over the holiday season last year, theFlorida Supreme Court made fast-track out-of-cycle changes to the pleading requirements for mortgage foreclosures.

In re Amendments to the FloridaRules of Civil Procedure, 153 So.3d 258 (2014), the court adopts theamendments effective immediately,without the usual 60-day commentperiod preceding such changes.Though not explicitly stated in the opinion, the comment periodappears to have been suspendeduntil after adoption in an effort tomore timely conform the FloridaRules of Civil Procedure to thelegislative mandate of Chapter2013-137, Laws of Florida.1

The court adopts the new Rule 1.115, which relates only topleading mortgage foreclosures.The verification requirement hasbeen moved from Rule 1.110, thegeneral pleading rule, into the newRule 1.115 with a slight change in wording. The verification hasbeen changed from being under“penalty” of perjury to being under“penalties” of perjury, though thelegal effect of such a change is not clear. The Supreme Court also adopted new forms to complywith the new rule, which make it

relativelystraightforwardfor practitionersto comply withthe changes.

Essentially,the amendmentsrequire theplaintiff in a mortgageforeclosure caseto specificallyallege thelocation,possession,ownership, andcondition of themortgage andnote. The newforms indicatethat case-specificfacts arerequired toestablish the right toforeclosure where a plaintiff isacting under an entitlement of lawor a delegation of authority, asrequired by the statutory changes.See § 702.015(2)-(5), Fla. Stat. (2014).

The Legislature enacted section702.015, Florida Statutes, to helprelieve Florida courts of the backlogof foreclosure cases by streamliningthe issues and procedure forhandling those cases. As it states,“The Legislature intends that thissection expedite the foreclosureprocess by ensuring initialdisclosure of a plaintiff ’s status and the facts supporting that status,thereby ensuring the availability of documents necessary to the prosecution of the case.” § 702.015(1), Fla. Stat. (2014).

The amendments to the Rules ofCivil Procedure, like section 702.015,are designed to address the core ofmany of the arguments raised byforeclosure defendants regarding the

actual ownershipof their mortgages.These argumentswere in many cases effective inslowing the paceof foreclosuresbecause the speedand complicationsintroduced by thefinancial industryhad outpaced thedevelopment andunderstanding ofthe law governingthe transactions.Banks andinvestors had toplay catch-up inlearning what theyactually owned, or didn’t own, andmany residentialhomeowners hadto play catch-up

in understanding the complexownership of their mortgages andloans by securitized trusts.

The changes to the Rules ofCivil Procedure apply to allmortgage foreclosures filed on orafter July 1, 2013, and have takenimmediate effect. Practitionersshould review their pending mattersto address any unwaived pleadingdeficiencies, and they shouldremain vigilant in checking TheFlorida Bar’s website for the mostup-to-date rules and forms.

1 The court’s opinion misidentifiesthe relevant citation to the Laws of

Florida; Chapter2013-137 is thecorrect reference.

Author:

Morgan W.

Streetman -

Streetman Law

The Florida Supreme

Court just adopted

fast-track out-of-cycle

changes to the pleading

requirements for

mortgage foreclosures.



In Giamo, whenthe doctor whoseopinion was reliedupon to sustainapportionment“was asked howhe arrived at the percentagesattributable toGiamo’s pre-existing conditionand thoseattributable to

the workplace injury, he explainedthat ‘when I was asked and thoughtabout it, that is the answer I cameup with.’” Id. The court declined tofurther elaborate on what is neededto meet the standard but held thatthe testimony here was inadequateto support an affirmative defense.The expert’s opinion here gave nobasis whatsoever for the apportion -ment percentages, which is notacceptable under the new standard.

What this means for future casesis that experts will have to betterexplain the basis and reasoning for the percentages of medicalcausation attributed to variouscauses in order to survive a Daubert

challenge. The question of exactlyhow the standard is to be applied todoctors and other experts is yet to bedetermined in workers’ compensationcases, but this is a new standardthat will have to be considered andinterpreted in future cases.

Author: Anthony V. Cortese - Anthony

V. Cortese, Attorney at Law

The First District Court of Appeals was presented with anissue of first impression

regarding expert testimony inGiamo v. Florida Autosport, 2014WL 6679290 (Fla. 1st DCA Nov.26, 2014). This decision will havebroad application.

Giamo involved an individualwho the employer/carrier agreedwas permanently and totallydisabled. There had been a vehiclecollision during a test drive of acustomer’s car, which led to cervicalinjuries and cervical fusion anddiscectomy followed by ongoingpain and disability. The employer/carrier raised an apportionmentdefense and brought medicaltestimony that a non-work-related,prior automobile collision resultedin a pre-existing condition thatsupported a reduction in benefits.The pre-existing, non-work-relatedcollision had resulted in an 8 percentpermanent impairment rating forthe cervical and lumbar spinebefore the work-related collisionoccurred. The employer/carrier

EXPERT TESTIMONY UNDER THE WORKERS’ COMPENSATION ACTWorkersʼ Compensation SectionChairs: Anthony V. Cortese - Anthony V. Cortese, Attorney at Law; and Irene Rodriguez - Irene M. Rodriguez, P.A.

did not argue thatthere should be an 8 percentapportionmentreduction basedon the priorimpairment butthat there shouldbe a 51 percentapportionmentreduction basedon new medicaltestimony.

The judge of compensationclaims found that there had been a pre-existing condition, and thedistrict court affirmed on that issue.However, the district court reversedand remanded on the finding that the employer/carrier hadestablished the proper degree ofapportionment by admissible experttestimony. It was held that since2013, when the Florida Legislaturemodified section 90.702, FloridaStatutes, to adopt the standards set in Daubert v. Merrell Dow

Pharmaceuticals, 509 U.S. 579(1993), expert testimony has to be more than pure opinion to be admissible and adequate tosupport a favorable finding. TheDaubert standard was held to applyin workers’ compensation cases,requiring the expert testimony tobe: (1) based upon sufficient facts or data; (2) the product of reliableprinciples and methods; and (3) a reliable application of theprinciples and methods to the facts of the case.

Expert testimony has

to be more than

pure opinion to be

admissible and

adequate to support

a favorable finding.

Need referrals? Our phones are always ringing! Call (813) 221-7780 to learn more about joining our Lawyer Referral & Information Service.


AROUND THE ASSOCIATION

Joseph N. Alexander has joinedattorneys Jeffrey P. Lieser andGhada M. Skaff to form LieserSkaff Alexander, PLL.

Adam L. Bantner II, anattorney with Brandon LegalGroup, has been elected vicepresident of the HillsboroughCounty Association of CriminalDefense Lawyers. Bantner is alitigator with the firm who focuseshis practice in the areas of criminaldefense, juvenile delinquency,juvenile dependency, and family law.

Richard M. Blau, ashareholder in the GrayRobinsonTampa office, was named to theAcademy of Hospitality IndustryAttorneys Board of Directors. Blauis the chair of GrayRobinson’sAlcohol Beverage and FoodDepartment and presides over thefirm’s Alcohol Industry Team. He and his colleagues focus on therules, regulations, and businesspractices that govern themarketing, sale, and consumptionof licensed beverages.

Robyn A. Bonivich has joinedThe Law Firm of Chris E.Ragano, P.A., as an associate for the firm. Bonivich concentratesher practice on marital and familylaw matters.

Justin L. Dees of TrenamKemker has joined the firm as a shareholder. Dees focuses hispractice on complex commerciallitigation.

Heather Fesnak has beennamed a new partner in the Tampaoffice of Akerman LLP. Fesnak isa part of the Consumer FinanceLitigation & Compliance PracticeGroup at the firm.

Jerry M. Gewirtz, chiefassistant city attorney for the City ofTampa, has been reappointed by theUnited States District Court to servean additional term as a member ofthe Local Rules AdvisoryCommittee of the U.S. DistrictCourt Middle District of Florida.

Judge Dick Greco Jr. of theHillsborough County Court hasjoined the teaching ranks atWestern Michigan UniversityThomas M. Cooley LawSchool’s Tampa Bay campus.Greco, who will teach Floridacounty court practice, beganteaching in January.

Gregory A. Hearing, ashareholder and managing partnerat Thompson, Sizemore,Gonzalez & Hearing, was electedas a trustee of the Florida SupremeCourt Historical Society. Thesociety is committed to ensuring anunderstanding of the importanceof a strong, independent judiciaryin our governmental balance ofpower. Hearing focuses his practiceon management labor andemployment law.

Benjamin H. Hill III, afounding shareholder of HillWard Henderson, is the recipientof The Fellows 2015 OutstandingService Award. The award is givenannually to a fellow of theAmerican Bar Foundation who has,in his or her professional career,adhered for more than 30 years tothe highest principles andtraditions of the legal professionand to the service of the public.Hill’s practice is focused on theareas of complex litigationincluding professional liability,products liability, and generalcommercial matters.

Peter B. King, a foundingmember of the Tampa-based lawfirm of Wiand Guerra King,recently participated on a panelpresentation at the Florida Officeof Financial Regulation’s 2014Division of Securities EnforcementTraining Program in Orlando.King practices commercial andcomplex litigation.

Judge Matthew Lucas andSamuel Salario have beenappointed by Governor Rick Scott tothe Second District Court of Appeal.Lucas served as a Thirteenth JudicialCircuit Court judge, and Salario hadpracticed with Carlton Fields JordenBurt since 2002.

Kathleen S. McLeroy andGwynne A. Young of CarltonFields Jorden Burt were includedas members in the establishment of the Florida Commission onAccess to Civil Justice. Members of the commission will work in acoordinated effort to identify andremove economic barriers to civiljustice. McLeroy focuses herpractice on representing creditors in disputes with debtors andrepresenting individuals in realproperty disputes. Young focusesher practice on complex state andfederal litigation.

Kristin Y. Melton has become a shareholder with the Tampa lawfirm of de la Parte & Gilbert,P.A. Melton practices primarily inthe areas of administrative,environmental, water, government,and sports law.

Anne-Leigh Gaylord Moe, a shareholder at Bush Ross, hasbeen appointed to a Merit Selection



AROUND THE ASSOCIATION

Panel for the United States DistrictCourt, Middle District of Florida.Moe focuses her practice onemployment disputes, professionalliability, medical negligence, andconstruction law.

Harold “Hal” Mullis,president of Trenam Kemker, willbe inducted into the 2015 TampaBay Business Hall of Fame. Mullisis a member of the CorporateTransactions Practice Group, and his practice areas includegeneral corporate representation, mergers and acquisitions, tax controversies, and tax-exempt and charitable organizations.

Steven A. (“Rusty”) Nisbetand Lee Ann Tranford havejoined Smolker, Bartlett,Schlosser, Loeb & Hinds, P.A.Nisbet joins the firm’s LitigationPractice Group after a long anddistinguished career as a trialattorney, assistant U.S. attorney, and deputy chief of the CivilDivision for the U.S. Attorney’sOffice, Middle District of Florida.Tranford focuses her practice oncommercial real estate with anemphasis on complex real estatetransactions and lending.

Anthony J. Palermo, anassociate at Holland & Knight,was selected to be the next presidentof the Harvard Club of the WestCoast of Florida. The HarvardClub of the West Coast of Florida is a 501(c)(3) nonprofit organizationthat serves the interests of HarvardUniversity, its graduates, andstudents in the greater Tampa Bay metropolitan area. Palermopractices litigation and disputeresolution at the firm.

Jared J. Perez, a member ofWiand Guerra King, received an “AV Preeminent” rating fromMartindale-Hubbell, the highestpossible rating for professionalexcellence and ethics from one ofthe country’s leading peer-ratingservices for lawyers. Perezconcentrates his practice oncomplex commercial litigation.

Woodrow H. “Woody”Pollack, a shareholder atGrayRobinson, P.A., has beennamed to Leadership St. Pete, Classof 2015. Leadership St. Pete is asix-month experience designed topromote community leadershipthrough an in-depth introduction tosocial, economic, business, andpolitical issues in the St. Petersburgarea. Pollack is a registered patentattorney who regularly litigatespatent, trademark, copyright, tradesecret, and other intellectualproperty disputes.

William J. “Josh” Podolsky IIIhas been made partner at PhelpsDunbar LLP’s Tampa office.Podolsky concentrates in real estate,commercial transactions, banking,finance, general business, andcorporate and partnership matters.

Sandra Ransdell, anassociate at Hill WardHenderson, was recently electedto the Board of Directors for theSt. Petersburg Arts Alliance.Ransdell focuses her practice oninstitutional lending, real propertypurchase and sale transactions,commercial development, andcommercial leasing.

Amanda Uliano of the LawOffice of Amanda M. Uliano,P.A. was elected president of theBoard of Directors for Dress for

Success Tampa Bay for the 2015calendar year. Dress for SuccessTampa Bay is dedicated toimproving the lives of Bay areawomen by providing professionalclothing, employment retentionprograms, and ongoing careersupport. Uliano focuses herpractice on business andcommercial litigation.

Luis Viera of Ogden &Sullivan in Tampa was appointedto the Tampa Bay BuccaneersHispanic Advisory Council. Vierafocuses his practice on personalinjury, professional negligence, andautomobile liability at the firm.

Josh Webb, an associate at HillWard Henderson, was recentlyelected to the Board of Directorsof Bok Tower Gardens in LakeWales. Webb focuses his practice incommercial litigation, representingclients in a variety of businessdisputes involving contract andtort claims.

Robert “Bert” Savage, BrendaCombs, and Alfred Villoch IIIhave formed Savage, Combs &Villoch, PLLC, a boutique law firmin downtown Tampa.

Akerman LLP has been selectedby the Florida Guardian ad LitemProgram as the CommunityAdvocate of the Year for theThirteenth Judicial Circuit.

Carlton Fields Jorden Burthas received a perfect score — 100 percent rating — on theHuman Rights Campaign (HRC)2015 Corporate Equality Index(CEI) for the sixth consecutive year.Carlton Fields Jorden Burt is one of 89 law firms in the country thatscored 100 percent.



JURY TRIAL INFORMATION

For the month of: November2014

Judge: Hon. William P. LevensParties: McKinley v. Bargo

Auto Sales, Inc.Attorneys: For plaintiff:

Ramond Haas and Mark Zamora;for defendant: Jody M. Valdes andJessica Dareneau

Nature of case: Automobilepersonal injury; plaintiff allegeddefendant was owner of vehicleinvolved in crash with plaintiff.

Verdict: Defense verdict

For the month of: November2014

Judge: Hon. Claudia R. IsomParties: Rawn D. Fox v.

Hillsborough Area Regional Transit Authority

Attorneys: For plaintiff:William Bowles Jr. and Adam

Brum; for defendant: Michael H. Rosen

Nature of case: Passengerclaimed injuries to neck and backfor negligent operation of bus.

Verdict: Defense verdict;defendant’s motion for attorney’sfees and cost pending

For the month of: December2014

Judge: Hon. Gilbert SmithParties: Patricia Jones v.

Gordon WaltersAttorneys: For plaintiff:

Steve Heintz and Eric Bruce; for defendant: Michael Bird andBrandon Scheele

Nature of case: Rear-end accident with knee

surgery and spine injectionsVerdict: Defense verdict

To submit news for Jury Trial Information, email [email protected].

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