Friday, December 27, 2013

Criminal Law: U.S. Supreme Court To Decide Important Traffic Stop Case – Navarette v. California

By Mark Rankin

The United States Supreme Court will soon hear the case of Navarette v. California. The court’s decision could have a huge impact on traffic stop cases in state and federal courts.

According to the legal briefs filed with the U.S. Supreme Court, in 2008, Lorenzo and Jose Navarette were traveling a California highway in a pickup truck with four large bags of marijuana in the bed.  Unbeknownst to the brothers, an anonymous caller had alerted the California Highway Patrol (CHP) to a “reckless driver,” identifying the make and color of the pickup truck and providing license plate information.  A CHP officer spotted the Navarettes’ vehicle.  The officer did not observe reckless driving or any other illegal activity while following the vehicle.  Based solely upon the anonymous tip, the officer conducted a traffic stop.  The Navarette brothers were charged with transportation of marijuana.  After losing a motion to suppress, they pleaded guilty and were sentenced to probation and 90 days in jail.  The California appellate courts affirmed, and the United States Supreme Court will consider the case this term.

The main question presented by Navarette is: Does the Fourth Amendment require an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle?

In Florida v. J.L., 529 U.S. 266 (2000), the Supreme Court reaffirmed that law enforcement may conduct a stop only where an anonymous tip has a “moderate indicia of reliability” and a “tendency to identify a determinate person.”  The court in J.L. also rejected the state’s request to adopt a “firearms exception” to this rule, based upon the dangerousness of an armed suspect.  The court noted that such an exception would subject citizens to intrusive police searches based upon a mere “bare-boned tip about guns.”  The facts of Navarette provide another opportunity for the court to decide this issue ― this time examining whether there should be some exception for dangerous or drunk drivers.

Florida courts frequently find that an anonymous tip that is only corroborated by observing the physical characteristics of a driver or the make, model, and color of the vehicle do not justify a stop.  In Wands v. Dep’t of Highway Safety, 13 Fla. L. Weekly Supp. 305 (Fla. 7th Cir. Ct. Jan. 27, 2006), the court examined facts similar to Navarette.  The officer in Wands had received an anonymous tip of a reckless driver but personally observed nothing illegal before conducting a stop. The court found there was not reasonable suspicion for the stop. In the DUI context, another Florida court made clear that an officer investigating a tip must observe “independent suspicious activity before they make a valid stop.”  State v. Goepfert, 15 Fla. L. Weekly Supp. 305 (Fla. 6th Cir. Ct. Jan. 10, 2008).

The court’s decision in Navarette will have some bearing on any criminal case involving a stop based upon an uncorroborated anonymous tip. However, DUI cases may be most affected by the court’s opinion. Defense counsel should closely follow this case and preserve any arguments that could be supported by a reversal in Navarette.

Monday, December 23, 2013

Corporate Counsel: Delaware Chancery Court Upholds Forum Selection Provisions In Bylaws

By Jody P. Keeling

In a recent decision, Boilermakers Local 154 Retirement Fund, et al. v. Chevron Corp., et al., C.A. No. 7220-CS (Del. Ch. June 25, 2013), Chancellor Leo E. Strine, Jr., of the Delaware Court of Chancery upheld the statutory and contractual validity of bylaws adopted by a corporation's board of directors that specifically designate an exclusive forum for litigating disputes regarding the internal affairs of the corporation.  Generally speaking, a forum selection bylaw is a provision in a corporation's bylaws that designates a forum as the exclusive venue for certain stockholder suits against the corporation, either as an actual or nominal defendant, as well as its directors and employees. The plaintiffs in this particular lawsuit claimed that the forum selection bylaws were statutorily invalid because they were beyond the scope of the board's authority under the Delaware General Corporation Law and that the bylaws were contractually invalid because they were unilaterally adopted by the board without shareholder approval. Boilermakers Local 154 v. Chevron, at 1.

First, the court held that the forum selection bylaws are statutorily valid exercises of board authority under 8 Del. C. § 109(b).  Section 109(b) provides that the bylaws of a corporation "may contain any provision, not inconsistent with law or with the certificate of incorporation, relating to the business of the corporation, the conduct of its affairs, and its rights or powers or the rights or powers of its stockholders, directors, officers or employees."  The court found that the bylaws "plainly relate to the business of the corporation[s], the conduct of [their] affairs, and regulate the rights or powers of [their] stockholders." Id. at 4. Therefore, the court found that such forum selection bylaws were not invalid as a matter of statutory law.

Second, the court held that board-adopted forum selection bylaws are contractually valid if the corporation’s articles of incorporation allow for unilateral adoption or amendment of the bylaws.  The court concluded that the board-adopted bylaws were binding on the stockholders because, consistent with 8 Del. C. § 109(a), the certificate of incorporation gave the board the power to adopt and amend bylaws unilaterally and that 8 Del. C. § 109(b) allows bylaws to regulate the business of the corporation, the conduct of its affairs, and the rights or powers of its stockholders. Therefore, by purchasing stock in the corporation, the stockholders agreed to be bound by the articles of incorporation, which included the provisions that allowed for the unilateral adoption of the bylaws. In addition, the court noted that there are several ways that stockholders have the ability to check the board’s authority. For example, stockholders can repeal the bylaws by majority vote or withhold votes from certain directors at annual elections. Id. at 30-35.

The court’s opinion now clears a path for directors of Delaware corporations, when authorized by the certificate of incorporation, to adopt forum selection bylaws to limit a company’s exposure to duplicative shareholder class actions and derivative actions across multiple forums. However, this decision is still subject to review by the Delaware Supreme Court, and it is likely that it will be appealed.

Monday, December 16, 2013

Construction Law: Economic Loss Rule Still Applies To Products, Including Buildings

By Hugh D. Higgins and Jared E. Smith

When Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Companies, Inc., 110 So. 3d 399 (Fla. 2013), was decided, many construction practitioners were concerned with the additional tort exposure implications.  Tiara dealt with whether the economic loss rule (ELR) would bar certain tort claims against an insurance broker where the parties were in contractual privity.  A divided Florida Supreme Court, however, passed over this narrow question and instead wiped out the contract ELR entirely.

Though uncertainty abounds in the wake of Tiara, two things remain unchanged:  The ELR still applies to products, and a building is still a product.  The product ELR prevents a plaintiff from recovering in tort when a product damages only itself and does not cause personal injury or damage to other property.

Twenty years prior to Tiara, the landmark case of Casa Clara Condo. Ass’n, Inc. v. Charley Toppino & Sons, Inc., 620 So. 2d 1244 (Fla. 1993), was decided.  In Casa Clara, homeowners filed suit against a concrete supplier because a faulty mix corroded the rebar, resulting in concrete falling off of the buildings.  The homeowners attempted to skirt application of the ELR by asserting a “home was different,” and the defective concrete caused damage to “other products” (namely the buildings themselves).  The court held that the tort claims were barred by the ELR because the “homeowners bought finished products — dwellings — not the individual components of those dwellings.”  Id. at 1247. 

Curiously, a red flag now appears on the Casa Clara decision, which denotes “no longer good for at least one point of law,” referencing Tiara, and the Westlaw summary states “the Supreme Court reced[ed] from Casa Clara.”  Yet, the admonitions of law school professors demand that we not blindly rely on case summaries or the color of case flags.
The Tiara court only receded from prior rulings “to the extent that they have applied the economic loss rule to cases other than product liability.”  Tiara, 110 So. 3d at 407.  Tiara generously cites and never expressly recedes from Casa Clara.  In fact, the court cites Casa Clara’s holding in its discussion of the product liability ELR.  Id. at 405 (“In Casa Clara, we held that the [ELR] barred a cause of action in tort for providing defective concrete where there was no personal injury or damage to property other than to the product itself.”) 

A recent Ninth Circuit Court opinion has upheld application of Casa Clara in the construction setting:  “Nothing in Tiara appears to alter the precedent set in cases examining the ELR in products liability action. ... [T]he finished product is the entire structure, not the individual units.”  Sienna at Celebration Master Ass’n v. Winter Park Constr. Co., Case No. 2009 CA 006474 CN (Fla. Cir. Ct. Sept. 4, 2013).  For now, Casa Clara’s broad definition of the term “product” appears to remain intact and should provide contractors and subcontractors a defense to basic tort claims involving construction of buildings. 

Friday, December 13, 2013

Are Financial Affidavits Mandatory In Collaborative Cases?

By Joryn Jenkins

Collaborative professionals have long labored under the assumption that Florida law requires financial affidavits in every divorce case, even the collaborative ones.  However, in Salczman v. Joquiel, Florida’s Third District announced that financial affidavits are not necessarily compulsory. 776 So. 2d 986 (Fla. 3d DCA 2001).  In that case, there were no children, and neither party had requested any form of permanent relief from the other.

In many ways, Salczman resembled a typical collaborative case without children.  Both parties were financially secure when they married and, in anticipation thereof, with benefit of counsel and full disclosure, had executed an antenuptial agreement.  The agreement provided that, in the event of divorce, each would retain any premarital property, they would divide jointly titled property equally, and neither would be entitled to spousal support.

After just three years, the wife petitioned for divorce, averring that their antenuptial agreement should be fully enforced. She sought no financial relief. The husband admitted the wife’s allegations and requested that their only two jointly titled assets be divided equally, pursuant to their agreement. The parties then amicably disposed of those assets.

Later, the trial court entered a final judgment granting the dissolution and incorporating the antenuptial agreement, finding it fair and reasonable on its face and executed after full disclosure between the parties.  Further, the court found that the parties had distributed all of their assets and liabilities in accordance with their agreement and that no financial issues remained to be decided.

However, over their objections and simultaneously with entry of its final judgment, the court ordered both parties to submit financial affidavits.  The Salczman parties both appealed, arguing that because there were no financial issues to be determined, applying the financial affidavit requirement violated their constitutional right to privacy.  The Third District never reached that issue, however, concluding that the rule itself rendered its terms inapplicable.

Rule 12.285(d)(1) provides:

A party shall serve … in any proceeding for an initial or supplemental request for permanent financial relief … [a] financial affidavit in substantial conformity with Family Law Form 12.901(d) ..., which requirement cannot be waived by the parties.

Said the Salczman court:

It stands to reason then, that if a court in a dissolution proceeding under this rule is not being called upon to award any permanent financial relief to a party, financial affidavits are not required and are indeed wholly irrelevant to the proceeding.

Because neither party requested permanent financial relief, because the parties resolved equitable distribution prior to final hearing, and because their agreement was unassailable, there was absolutely no issue as to financial relief. Thus, filing financial affidavits served no purpose and the rule did not so mandate. (In Kelner v. Kelner, 970 So. 2d 933 (Fla. 4th DCA 2008), the Fourth District, on similar facts, but involving simplified dissolution, cited Salczman, ruling “parties to a simplified dissolution may waive the filing of financial affidavits under the circumstances presented here notwithstanding the language in rule 12.105.”)

Thursday, December 12, 2013

Celebrating Pro Bono Week 2013

By Allison W. Singer

In 2009, the American Bar Association’s Standing Committee on Pro Bono and Public Service announced plans to launch the first National Celebration of Pro Bono.  Four years later, the celebration continues.  Each October, bar associations across the country join together to celebrate Pro Bono Week — a week of events designed to highlight the efforts of attorneys doing pro bono work in their communities, as well as to recruit additional pro bono attorneys to increase services to low-income individuals.  The Thirteenth Judicial Circuit has actively participated in the event since its inception and continued its support this year ― from October 20 to 26.

The Pro Bono Committee encouraged its members — which include the sections of the Hillsborough County Bar Association, as well as other voluntary bar associations — to host an event during or around the time of Pro Bono Week.  Leading by example on this front was the George Edgecomb Bar Association (GEBA), which hosted its annual Learn Your Legal Rights Community Workshop on September 28 at the New Hope Missionary Baptist Church.

The workshop, which was intended to educate community members about their legal rights, attracted approximately 100 attendees.  For several years, GEBA has sponsored this event, at which its members present substantive courses on topics that disproportionately impact minority and low-income citizens, including employment discrimination, family law, personal injury, criminal law, and foreclosure.  Henry G. Gyden, the workshop co-chair and GEBA’s immediate past president, explained that this year GEBA added to its already impressive list of courses a presentation on the Affordable Care Act, as well as a screening of “Before the Law Was Equal,” the documentary co-produced by the HCBA’s Young Lawyers Division and Diversity Committee.

GEBA President Cory J. Person emphasized how seriously his organization takes its pro bono obligation, noting that it is part of GEBA’s by-laws and mission.  He praised his members for their efforts in creating an annual event that fulfills that mission by sharing with the community the breadth and diversity of members’ expertise.  He was especially grateful for the efforts of co-chairs Henry G. Gyden and Kamilah Perry, as well as Charles M. Holloman II and Clinton Paris.  The fall workshop was so successful that GEBA is planning a similar event for the spring of 2014. 

This is what it means to incorporate pro bono into our legal DNA.  Thank you, GEBA, for continuing to set the pace for pro bono in our community. 

Clerk Of The Circuit Court's Message: Betting On The Future With eFiling

By Pat Frank
I am not one to advocate rolling the dice, but when it comes to the issue of eFiling, to me there’s no better bet for the clerk’s office and our constituencies than putting our time, energy, and resources toward its implementation.
On April 1, all circuit civil, county civil, and family law pleadings filed by attorneys were mandated to be eFiled.  To put this in perspective, circuit civil alone received 3,500 pieces of mail each day.  That number has now dropped to 300 pieces of mail.
The dramatic decrease in paper received has made it so much easier to handle mail, sort documents, and file.  It has also reduced the workload for our mail services and record center departments.
Previously, circuit civil transported 2,000 files to and from the clerk and the judiciary.  Since most of the recent pleadings are now electronic, only 1,000 files are transported each month, producing savings in both operations costs and in records management.  Eighty percent of the pleadings that are being reviewed in court are now electronic, thus only 20 percent of the files remain paper files. 
In addition to greatly reducing the amount of time and paper, the transformation to eFiling also increases our accuracy.  When you receive thousands of documents each day, there is a far better chance of misfiling.  Staff used to spend hours searching for and locating a misfiled document.  With electronic filing, that is no longer an issue. 
With mail functions, sorting, and filing almost nonexistent, circuit civil is working with four fewer employees.  County civil has reduced its staff by two, as has family law.  Since attorneys eFile, customer service has now shifted from over the counter to phone and email customer service, so we are seeing reductions on that front, too.  Circuit civil has reduced its front-counter employees from five to two, and family law now has four employees instead of seven.
The most positive result of all is that we are far more responsive to our customers.  Before eFiling, it took two to three days before pleadings were available in the clerk’s system.  Now, 95 percent of pleadings are accepted and can be viewed the same day that they are eFiled.  Also, customers receive confirmation emails each time a document that has been eFiled is accepted.
In family law, 50 percent of new cases are eFiled.  Therefore, cashiering has been reduced by 50 percent there.  In circuit civil, staff performed an average of 300 transactions daily.  With eFiling, that number is now 130.  This is efficiency in both operations and accounting.
In the past, space ― or lack of it ― has been an issue in the clerk’s office, but with eFiling in effect, the reduction in paper, files, and staff has made more space available. 
I don’t know if we’ve hit the jackpot yet with eFiling, but from all indications, it is a winner for all of us.

Monday, December 9, 2013

State Attorney's Message: Don’t Text And Drive

By Mark A. Ober

In 2011, Florida had 2,398 traffic fatalities.   Hillsborough County was third in the state for the number of traffic fatalities, with 151 reported deaths that year.   Statewide, more than 700 of the fatalities were related to alcohol-impaired driving.   An even larger number of the fatalities were not caused by alcohol impairment.  Many of these tragic deaths were easily avoidable.  

Research into the causes of traffic fatalities has identified the dangers of distracted driving.  Distracted driving occurs whenever a driver engages in an activity that distracts the driver from driving safely; this can include texting while driving.  Nationally, more than 3,300 people were killed in crashes involving distracted driving during 2011.   Educational campaigns to raise driver awareness about the dangers of texting and driving have been launched by numerous organizations, including the U.S. Department of Transportation  and AT&T.  

At the state level, some legislatures have passed laws to prevent texting while driving.  On October 1, the Florida Ban on Texting While Driving Law went into effect.  Florida Statute § 316.305 is intended to improve safety and help reduce the deaths and damage caused by texting while driving. See § 316.305, Fla. Stat. This law prohibits a person from driving while “manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communications device or while sending or reading data in such a device for the purpose of nonvoice interpersonal communication, including, but not limited to, communication methods known as texting, e-mailing, and instant messaging.” § 316.305(3)(a), Fla. Stat. Violation of this statute is punishable as a noncriminal traffic infraction. See § 316.305(4), Fla. Stat.

Although my office does not prosecute traffic infractions, a noncriminal traffic infraction may become part of a vehicular homicide prosecution.  In order to prove the charge of vehicular homicide, the state must show that the death of the victim was caused by the operation of a motor vehicle “in a reckless manner likely to cause the death of, or great bodily harm to another.” § 782.071, Fla. Stat. Evidence regarding the driver’s behavior at the time of the crash is relevant to proving this offense.  This behavior could include texting while driving. 

Too many people are dying on our streets.  My office can only become involved once a crime has already occurred.  Every one of us can become involved in saving lives when we get behind the wheel of a car and make good decisions.  Help keep yourselves and the other citizens of Hillsborough County safe.  Don’t text and drive.

Wednesday, December 4, 2013

Pivotal Appellate Cases In Workers' Compensation

By Irene Rodriguez and Anthony V. Cortese

There were three pivotal appellate decisions in workers’ compensation this year.  The Hillsborough County Bar Association Workers’ Compensation Section has scheduled a luncheon seminar on December 11 where top local attorneys, including some of those handling these three important cases, will address these decisions and other pending appellate cases.  We invite interested attorneys to mark your calendars and join us at additional seminars on February 4, 2014, and April 23, 2014.

In Westphal v. City of St. Petersburg, 1D12-3563 (1DCA, February 28, 2013), (Westphal I) affirmed, on other grounds, en banc, 1D12-3563 (1DCA, September 23, 2013) (Westphal II) the First District Court of Appeals attempted to correct the gap in indemnity benefits that occurs when statutory maximum medical improvement (MMI) occurs before actual MMI. In 1994, temporary benefits were reduced to 104 weeks from 260 weeks. After 104 weeks, an individual could receive additional full indemnity benefits only by proving entitlement to permanent and total disability on the date of actual maximum medical improvement from all work-related conditions.  The burden of proof was to prove a speculative medical and vocational condition at a speculative future MMI date, which is practically impossible.  Westphal I determined that to rectify this, the 104-week limitation should be unconstitutional and the prior statute, which allowed for 260 weeks of temporary benefits, should be reinstated prospectively. 

The ruling that the law was unconstitutional was revisited by the First District by an en banc panel.  Westphal II first ruled that the 104-week limitation was constitutional.  Westphal II then ruled that if a person is totally disabled at statutory maximum medical improvement, the person is entitled to permanent and total disability benefits. This is a major change in the law.

The other major decision in 2013 is Jacobson v. Southeast Personnel, 1D12-1103 (June 5, 2013).  In Jacobson, the question was about the constitutionality of the part of the statute that says that a claimant’s attorney may only receive a fee based on a percentage of benefits obtained on behalf of the claimant. The facts involved a situation where the claimant’s attorney was defending the claimant against a petition by the employer/carrier for costs after litigation.  The claimant’s counsel requested a retainer to be approved to allow a reasonable fee to be paid, and the judge of compensation claims refused.  The law is that a claimant’s attorney can be paid only a statutory percentage of benefits obtained.  In a cost claim against the claimant, the claimant cannot be awarded any benefits, so his or her attorney may not be paid. The court held the act unconstitutional at this time with regard to the defense of a petition for costs.
The changes in Westphal II will have a dramatic impact.  The willingness of the First District in Westphal I and Jacobson to consider the unconstitutionality of recent legislation may signal more to come in pending cases on appeal. 

President's Message: Good Grief! Why Can’t The Inspiration Last Longer Than The Promotions?

By Susan Johnson-Velez

On a recent evening over dinner, my son, Julian, and I were discussing how Christmas continues to “bogart” the end-of-year holiday season ― and with ever-increasing bravado.  With each passing year, Christmas seems to seize an unfair share of the attention ― red and green decorations can be seen well before the tricking and treating have even begun.  The veritable onslaught of all things Christmas sometimes makes Thanksgiving seem like a mere bump on the holiday highway as we speed toward the end of December.  At this point, you may be getting the very wrong impression that I do not like Christmas.  But that could not be further from the truth.  I actually love Christmas ― it’s my favorite holiday.  People are filled with feelings of warmth toward fellow man, hope, peace, and joy.  We often lament the fact that sometimes these feelings and the kind acts they engender can seem as seasonal as the decorations.  What if something in the season could provide a behavioral roadmap for the entire year?

I think the source of this roadmap might be found in some of the Christmas cartoon specials of my childhood.  A few of my favorites come to mind that could do the trick.  For those of you who don’t remember the plots or who don’t continue to watch them every year as I do, here’s a brief summary:

HOW THE GRINCH STOLE CHRISTMAS – Bitter and hateful because his heart is two sizes too small, the Grinch is irritated at the thought that the Who’s in Whoville will enjoy Christmas. He thinks the enjoyment comes from all of the toys, decorations, and feasts.  With himself dressed as Santa Claus, and his dog made to look like a reindeer, the Grinch tries to keep Christmas from coming.  He raids Whoville and steals everything he thinks makes Christmas, Christmas – the presents, the lights and decorations, and even the roast beast.  Instead he learns that Christmas does not come from a store … it means a little bit more.

RUDOLPH THE RED-NOSED REINDEER – A red-nosed reindeer who has been ostracized by all of the other reindeer (they used to laugh and call him names) teams up with an elf who wants to be a dentist and a prospector.  Together they tame the Abominable Snowman and find an island of misfit toys.  Rudolph leads Santa back to the island on that fateful, foggy Christmas Eve, and they pick up Charley-In-The-Box, the Cowboy-Who-Rides-An-Ostrich, the Spotted Elephant, and all the other misfit toys.  This Christmas, their individuality is going to be an asset.

CHARLIE BROWN CHRISTMAS – Charlie Brown sees nothing but overwhelming materialism surrounding the season – even his dog, Snoopy, is not immune.  He struggles to find the real meaning of Christmas but is frustrated just about everywhere he looks, from the school Christmas play to the aluminum tree lot.  Finally, a little boy with his head wrapped in a blue blanket helps Charlie Brown discover the true meaning of Christmas.

So what course can these relics chart for us throughout the coming year?  First and foremost – it’s not about “the stuff.”  It’s about pretty much everything else but “the stuff,” and that’s what we should focus on.  Second – being unique can be a good thing; we should seek out and embrace the individuality in everyone.  And, finally – the very fact that we watch these cartoons reminds us of the value in being childlike (i.e., simple, trusting, and uncomplicated), at least on occasion.  I wish you safe and joyous travels as we embark on our journey toward the end of this year and the beginning of next.

Sunday, December 1, 2013

Editor's Message: Ushering In The Holiday Season And New Year

By Rena Upshaw-Frazier

The holidays and new year usher in exciting times in the legal profession.  They offer an occasion to reflect on the year that has passed, time to enjoy our present moments, and the opportunity to look forward to new beginnings with the new year.  They offer a much needed respite from the sometimes hectic whirlwind of being immersed in the legal profession.  And although any time is a good time to make positive resolutions and implement changes in our lives, there is something about the uptick of a new year that compels us to want to be better versions of ourselves. 

In reflection, I hope that the improved economy and real estate market of 2013 brought positive changes and growth opportunities for your legal practice.  It has thus far been a superb time for the Hillsborough County Bar Association.  The organization has continued to exemplify and relish its mission of providing professional networking events and luncheons, continuing legal education classes, and opportunities to have genuine fun for local legal professionals.  We at the Lawyer magazine have enjoyed capturing, contributing to, and sharing those moments and the mission.  We look forward to celebrating with you as we move into 2014.

We hope that you embrace the current holiday season and the endless opportunities to participate in pro bono activities and charitable events.  Although we are all encouraged and would do well to give back to the community year-round, the holidays and new year bring with them a certain humanitarian spirit.  And the community’s festivities and celebrations sometimes serve to emphasize the circumstances of those in need or less fortunate.  Legal professionals possess unique skills and abilities that can serve to alleviate some of those circumstances.  Please find time to brighten someone else’s holiday, as it will inevitably brighten yours as well.

Of course, legal practices and careers do not stop merely because the holidays and a new year are upon us!  In fact, depending on the legal practice, some may be busier than ever during this season.  Thank you to all of the HCBA section chairs for gratuitously taking time out of their holiday schedules to continue to provide up-to-date information on new laws and nuances in the legal profession and for contributing to, or finding contributors for, the educational articles included in this season’s publication.  We hope that they expand your knowledge and enhance your career going into the new year.

Hopefully, your holiday season is not all work and no play.  There are no shortage of celebrations and festivities, such as the HCBA’s Holiday Open House, and they provide a great opportunity to get to know your colleagues and fellow HCBA members.  Take the time to celebrate all of your hard work over the past year.  In the words of Lee Ann Womack, “When you get the choice to sit it out or dance, I hope you dance.”

Here’s to happy and restful holidays, a wonderful new year, and inspired new year’s resolutions.  See you on the other side.

Friday, November 29, 2013

Successful Bench Bar Conference Punctuated By Human Trafficking Survivor’s Harrowing Account Of Abuse

By John F. Kynes

The theme for the Hillsborough County Bar Association’s 17th Annual Bench Bar Conference held in November at the Hilton in downtown Tampa was “Stand Up For Justice.”  No one did a better job communicating that message than the courageous guest speaker at the event’s membership luncheon.

The speaker, a woman who did not provide her name because of personal safety concerns, shared her harrowing story of abuse as a survivor of human trafficking, and she encouraged the more than 450 HCBA members in attendance to become victim advocates.

Speaking publicly about her terrible ordeal for the first time, the woman described growing up in the Tampa Bay area in a “stable, loving family.”  She said she enjoyed ballet, attended the University of South Florida for a time, and eventually became a single mother to a premature baby.

Trying to make ends meet, she worked nights as a bartender and at area nightclubs. Targeted by a local human trafficker, she was lured away from a nightclub under false pretenses and with the promise of making more money. She said she was then taken and held against her will in a local warehouse where she was repeatedly beaten and raped.  “I thought I was dead when I heard my trafficker and other men talk about what to do with my body,” she said.

After that, all her belongings were taken, and she was regularly “sold” to men for sex.  “I was the product,” she said.

Any time she resisted instructions, she was “punched and strangled,” she said.  Her trafficker also used psychological manipulation to control her, which she said was often more powerful than physical violence.

Eventually, she was able to escape and is now trying to make a better life for herself.  Incredibly, she is now attending law school and is encouraging others to assist trafficking victims.  “We need every single attorney and judge to be trained on the [trafficking] issue,” she told the crowd, which gave her an extended standing ovation after she completed her remarks.

Jenay Iurato, a volunteer attorney with the West Florida Center for Trafficking Advocacy, provided some grim statistics about human trafficking before she introduced the trafficking survivor.  Florida ranks third in the country in the incidence of human trafficking, and overall the crime is estimated to be a $32 billion dollar industry, Iurato said.  Further, trafficking is the second-most common criminal act behind drug trafficking, she added.

“Human trafficking is alive and flourishing in the Tampa Bay area,” Iurato said.  “It’s modern-day slavery.”

Iurato encouraged those in attendance to get involved and help educate their colleagues and the public about the trafficking issue.  Iurato also highlighted a new statewide initiative championed by Florida Attorney General Pam Bondi, “From Instant Message to Instant Nightmare,” to help parents protect children from sex trafficking.

However, she conceded there is much work to be done to help combat the problem.  “We need attorneys who are willing to invest in the restoration of survivors through time, relationships, and pro bono legal services,” Iurato said.


On another note, Tampa Mayor Bob Buckhorn attended the membership luncheon and made a special presentation to U.S. District Judge Elizabeth A. Kovachevich.  Buckhorn presented the judge with a door with her name inscribed on it that came from her former courtroom in the historic federal courthouse.  The door was salvaged from the 108-year-old courthouse, which has been closed for 15 years and is being transformed into a boutique hotel.


Circuit Judges Caroline J. Tesche and Samantha L. Ward were this year’s Bench Bar Conference co-chairs.  Both judges worked for months with other dedicated committee members, HCBA CLE Director Amanda Uliano, and other staff planning the conference.

“We firmly believe that our jurisdiction is unique; our Bench and Bar truly exemplify the best in the practice of law, and our annual conference grows in prominence and tradition each year,” Tesche said.

There were eight CLE breakout sessions in the morning that focused on a wide range of topics, as well as a morning plenary session that focused on key technology issues. In the afternoon, there were four more CLE breakout sessions, each with a “View Toward the Bench,” focusing on issues important to litigants.  Plus, there were two afternoon plenary sessions, including a panel discussion focusing on pro bono work that was moderated by Pulitzer prize-winning columnist Daniel Ruth.

At the end of the day, more than 400 HCBA members enjoyed the camaraderie provided at the annual Judicial Reception.

Special thanks to the many generous sponsors that helped make this year’s Bench Bar Conference possible, and especially the Diamond Sponsor, Steve Yerrid and The Yerrid Law Firm.

See you around the Chet.

Wednesday, November 20, 2013

Appellate Practice: Pleading Requirements For Fees In Original Proceedings

By Jared M. Krukar

Florida Rule of Appellate Procedure 9.400(b) governs the procedure for seeking attorneys’ fees on appeal. It requires the party seeking fees to file a motion no later than the time for filing a reply brief. There is no rule that expressly states a different procedure for original proceedings, such as petitions for writ of certiorari. Consequently, many practitioners simply interpret Rule 9.400(b) to require a motion for fees to be filed no later than the due date for the reply to the response to the petition. However, in Advanced Chiropractic and Rehabilitation Center Corp. v. United Automobile Insurance Company, 103 So. 3d 869 (Fla. 4th DCA 2012), rev. granted, SC13-153 (Fla. June 4, 2013), the Fourth District Court of Appeal held that Rule 9.400 does not apply to original proceedings, and it imposed a “pleading requirement” for attorneys’ fees in original proceedings.

In Advanced, the petitioner was awarded certiorari relief, then moved for fees three days later. The Fourth District denied the motion as untimely, citing cases applying Rule 9.400(b). The petitioner moved for rehearing, arguing that Rule 9.400(b) applied only to “a standard appeal with respect to a series of briefs,” not to original proceedings. The Fourth District agreed. Rule 9.400(b)’s plain language refers only to a “reply brief,” so the rule does not apply to original proceedings that have only a “petition,” a “response,” and a “reply.”

However, the Fourth District reaffirmed that the petitioner’s request was untimely. The court ruled, “Nothing in the appellate rules sets forth the procedure for requesting attorneys’ fees in a Rule 9.100 proceeding.” The court relied upon Stockman v. Down. 573 So. 2d 835, 837 (Fla. 1991). In Stockman, the supreme court held “a claim for attorney’s fees ... must be pled.” The supreme court was concerned about notice to the opposing party. The Fourth District recognized the same concern applies to original proceedings. Therefore, the Fourth District held the petitioner was required to “plead” its entitlement to attorneys’ fees in its petition or reply, just as a trial practitioner would plead entitlement in a complaint, answer, or counterclaim. See Fla. R. Civ. P. 1.100(a). The petitioner’s failure to do so was fatal to his claim for fees.

The Advanced opinion creates two uncertainties. First, it does not detail the level of specificity necessary in the “pleading.” It is unclear whether one must establish a full legal and factual basis for fees in the pleading or simply make a request to establish notice. Second, the opinion does not establish the time within which a motion for fees — if any — should follow the pleading. Stockman said, “Proof of attorney’s fees may be presented after final judgment, upon motion within a reasonable time.” 573 So. 2d at 838. But in an original proceeding, there is no “judgment” from which to determine a “reasonable time.”

In the wake of Advanced, appellate practitioners should plead entitlement to fees in original proceedings and proceed cautiously thereafter.

Tuesday, November 19, 2013

Clerk Of The Circuit Court's Message: A Paperless Office

By Pat Frank

When I first took office as clerk of the circuit court in January 2005, I pledged to make it my goal to transition from mounds of paper to a paperless system.  We have been moving steadily toward attaining that goal, and now, it truly is in sight.

This is a monumental achievement for our paper-filled office.  To put it in perspective, if you ever visited the Empire State Building in New York City and were awestruck by its height, it’s nothing compared to our paper piles here.  If we took all of the paper court records from the clerk’s office and placed them in a stack – they would not only exceed the height of the Empire State Building – you would actually need to stack 57 more Empire State Buildings on top of one another to surpass the height of all of our paper court records!  And the Empire State Building reaches 1,454 feet into the sky.

Our transition to e-Filing is the natural transition to a paperless system.  The paper that comes in is digitized within our Odyssey Case Maintenance System.  Thus, the official court record will be in electronic form, with only select paper documents retained in compliance with court rules of procedure.

Our big jump in that direction came when we instituted a new system known as CRIBS – Clerks Reactive Intelligent Back Scanning System.  The software for CRIBS was actually developed in-house by our own IT shop.  The software permits the automated examination of the Odyssey case progress docket for case events that do not have an electronic image associated to them. 

This is how CRIBS works: The software generates an intelligent separator sheet, which contains a barcode for each document that must be imaged.  This intelligent separator sheet is placed on top of the document to be imaged.  Once the document is scanned, it is passed through OCR processing in order to create a text-searchable document and is placed sequentially through multiple layers of quality control.  Once completed, the image is then automatically linked to the appropriate case and case event.    

CRIBS software is being piloted in the Circuit Civil Division – Mortgage Foreclosure Division M.  The judge in that division will use only electronic case files through the Thirteenth Judicial Automated Workflow System (JAWS) and alleviate the need for the department to provide a paper court file.  Once the CRIBS software passes through the pilot test, we will work closely with the court administrator to identify other opportunities for the deployment of this software.  Together, we will identify the divisions that provide the greatest opportunities for the overall back scanning of paper court files.

The good news about CRIBS is that it is scalable and can be applied to other areas in our court system. Paper is definitely an endangered species in the clerk’s office.

Monday, November 18, 2013

The Peculiarities Of Agricultural Law In Florida

By Jacob T. Cremer

Did you know that this year, the Florida Legislature prevented local governments from adopting new laws or policies that regulate or restrict agritourism? See § 570.96(1), Fla. Stat. Or that owners of most cattle-dipping vats are exempt from state pollution-control laws? See § 376.306, Fla. Stat. Did you know local governments in Florida cannot regulate apiculture? (Or that apiculture is the science of beekeeping?) See § 586.10, Fla. Stat.

It doesn’t take long for the environmental and land-use practitioner to realize that agriculture is different in Florida. Many people are surprised by these peculiarities. For good reason: We are less connected to agriculture today than we were in the past. Because of the phenomenal increase in agricultural output over the past 100 years, we have gone from 80 percent of our population working in agriculture to only 2.5 percent. Yet agriculture is still Florida’s second-largest industry. Perhaps we should not be surprised by these peculiarities when such a large industry is understood by so few.

Practitioners should be aware of these differences precisely because they do not affect other land uses or types of activities. These peculiarities usually take the form of pre-emptions and exemptions. In the land-use arena, nonresidential farm buildings, farm signs, and even farm fences are exempt from the Florida Building Code as well as local government codes and fees. § 604.50, Fla. Stat.

Another land-use pre-emption is the Agricultural Lands and Practices Act, which since 2003 has prevented counties from adopting any law or policy “to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land” if the activity is regulated by any one of a number of state and federal regulatory agencies. § 163.3162(3), Fla. Stat. See also § 823.14, Fla. Stat. (Florida Right to Farm Act, providing for similar pre-emption along with protections for farms against public and private nuisance suits). Later, the Agricultural Lands and Practices Act was strengthened to prohibit the enforcement of many existing laws and policies related to agriculture. This year, Senate Bill 203 extended the act beyond counties to virtually all local and regional governmental entities.

Beyond land use, agriculture is subject to numerous exemptions to state environmental laws and permitting regimes. See, e.g., § 373.406, Fla. Stat. (certain agricultural activities exempt from state permitting of activities altering surface water flows); § 403.7045, Fla. Stat. (agricultural byproduct material and process waste generally not hazardous waste); and § 403.927 (exempts agricultural activities and agricultural water management systems from typical dredge and fill permit requirements).

Keep in mind that almost all of the pre-emptions and exemptions discussed above require that the agricultural operation be “bona fide” — that is, be used in good faith for commercial agriculture. The standards for making this determination are found in § 193.461, Fla. Stat, the agricultural tax classification (which is not really an “exemption,” even though it is commonly called one).

Thursday, November 14, 2013

The Florida Bar Foundation Provides Leadership And Funding For Justice

By Gregory P. Brown

As lawyers, we share a commitment to justice.  The Florida Bar Foundation, a 501(c)(3) public charity, turns that commitment into action through its funding of programs that provide access to justice for Floridians living in poverty.  Through our support of The Florida Bar Foundation, we can demonstrate our belief that the justice system works best when it works for everyone ― regardless of economic status.

Locally, The Florida Bar Foundation is an important funding source for Bay Area Legal Services.  Through its Administration of Justice (AOJ) Grant Program, the foundation also helps fund special projects and initiatives across the state such as the Innocence Project of Florida, which has succeeded in exonerating 13 wrongfully imprisoned Floridians using DNA evidence since 2003, as well as the Florida Law Related Education Association, which teaches Florida students about democracy and the American legal system.  Several years ago, another AOJ grant went to Bay Area Legal Services for a highly successful and widely emulated Bankruptcy Pro Se Assistance Project that involved a collaboration with several other legal services organizations and the U.S. Bankruptcy Court, Middle District.

If you visit the foundation’s website, you will be impressed with the number and diversity of the grantees assisted by the foundation.

Since 1981, the primary source of funding for The Florida Bar Foundation has been Florida’s Interest on Trust Accounts (IOTA) Program, which has enabled the foundation to provide about one-third of the total funding for civil legal aid organizations in Florida.  Over the past 32 years, Florida’s IOTA Program has distributed more than $425 million to help hundreds of thousands of poor people receive critically needed free civil legal assistance throughout Florida.

The Foundation also funds initiatives such as salary supplementation and loan repayment programs that help attract and retain legal aid attorneys.  The salary supplementation grant for Bay Area Legal Services was $403,260 in 2012-13.

In recent years, due to the impact of extremely low interest rates on IOTA revenue, the foundation has had to drastically reduce its funding to legal aid agencies.  Whereas in 2010, Bay Area Legal Services received a foundation general support grant of $396,467 to provide legal services, as well as a $164,800 foundation grant specifically for Children’s Legal Services, in 2013 those grant amounts were $180,393 and $71,957, respectively.  Overall, foundation funding is now about a quarter of legal aid funding statewide.

I urge you to take a few minutes to learn more about The Florida Bar Foundation, an organization in which all of us, as Florida attorneys, can take tremendous pride, and one that brings critical resources back to our community.  If you have questions about the foundation, feel free to ask me or my fellow Florida Bar Foundation board members from Hillsborough County, Hala Sandridge and Judge Jim Barton.

Wednesday, November 13, 2013

State Attorney's Message: Revoking Bond

By Mark A. Ober

Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained. Art. I, § 14, Fla. Const.

The custody status of a defendant pending trial is a balance between the defendant’s presumption of innocence and the need to keep the community safe.  Under Florida law, there is a presumption in favor of nonmonetary conditions of release for defendants who are not charged with dangerous crimes. See § 907.041(3), Fla. Stat. In most cases, a criminal defendant is entitled to release on bond while awaiting trial.  In Florida, the terms “bail,” “bond,” and “pretrial release” are usually interchangeable. See § 903.011, Fla. Stat. 

By statute, the defendant must comply with certain conditions of release. See § 903.047, Fla. Stat. While out on bond, a defendant cannot engage in criminal activity or contact the victim in the case. See § 903.047, Fla. Stat. The court may also set other special conditions of release if those special conditions are reasonable. See Hernandez v. Roth, 890 So. 2d 1173 (Fla. 3rd DCA 2004).  When determining the amount of bail or other conditions of release, the court has to consider such factors as the nature of the charges, the weight of the evidence, the prior record and individual circumstances of the defendant, and the potential danger to any victims. See § 903.046, Fla. Stat. 

What happens when a defendant violates the conditions of release? Florida law allows a defendant who has violated the conditions of pretrial release to be held without bond under certain circumstances.   

If there is probable cause to believe that the defendant has committed a new crime, the court may revoke bond on its own. See § 903.0471, Fla. Stat. This frequently occurs when the defendant is at first appearance on a new charge.  The probable cause affidavit prepared for the new charge can be sufficient to revoke bond on the initial case. See Perry v. State, 842 So. 2d 301 (Fla. 5th DCA 2003). 

The court may also order pretrial detention if a defendant violates a condition of release and the court finds that “no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial.” § 907.041(4)(c)(7), Fla. Stat. The state must file a motion for pretrial detention, and the state carries the burden at the motion hearing. See § 907.041, Fla. Stat; Fla. R. Crim. P. 3.132.

My office protects the community, not just by seeking convictions, but also by seeking to revoke bond before trial where it is necessary to keep our community safe.  

Tuesday, November 12, 2013

Criminal Law Section Call For Nominations: 2014 Bubba Huerta Award

By Matt Luka

In March 2009, local defense counsel Marcelino “Bubba” Huerta III passed away at the too-young age of 56.  For his professionalism, good heart, and friendly personality, Bubba was universally respected throughout the Tampa Bay area by defense counsel, prosecutors, and judges alike.  His quiet commitment to pro bono service was not known to many, but it was appreciated and admired by those who knew him best.  With his passing, the Hillsborough County Bar Association lost a friend, and the criminal justice system lost a great lawyer and public servant.

In Bubba’s memory, the Criminal Law Section of the Hillsborough County Bar Association created the Marcelino “Bubba” Huerta III Award for Professionalism and Pro Bono Service.  This award is presented to an attorney who exhibits the professional practice, dedication to pro bono service, and diligent work in the pursuit of equal justice that made Bubba a remarkable lawyer.  The recipient of the award is selected by a committee consisting of local, state, and federal criminal practitioners. In 2009, the first Bubba Huerta Award was presented to James Felman of Kynes, Markman & Felman.

The process has begun to select the recipient of the 2013-2014 Bubba Huerta Award.  The award will be presented at our section’s luncheon meeting on February 27, 2014.  Please nominate an attorney who exemplifies the professionalism and pro bono spirit that made Bubba Huerta exceptional. Your nomination can be submitted by emailing me at or Mark Rankin at

Friday, November 8, 2013

Construction Law: Reading Commercial General Liability Policies: Exclusions, Exceptions, and Exasperation

By Bennett Acuff

Reading Commercial General Liability (CGL) policies can feel a lot like tracking a flow chart or solving an LSAT logic game.  There are covered claims, exclusions to coverage, and then exceptions to those exclusions.  Not to mention endorsements.

One of the more common provisions is the “Your Work” exclusion.  A typical CGL policy will exclude damages if the work is defective.  Policies will not cover costs to replace defective work.  However, such policies normally include an exception to the “Your Work” exclusion if the work was performed by a subcontractor.  Beware, however, of the oft-dreaded endorsement that can negate a policy term.

Similar to the “Your Work” exclusion, many CGL policies contain a “Your Product” exclusion that operates in a related manner.  For instance, a CGL policy for a door supplier would not cover the cost to replace a defective door.  One of the questions that arises but has not been thoroughly addressed by Florida courts is how to define “Your Work,” when the product has been installed and altered in the process.

Recently, the Second District Court of Appeals in Liberty Mut. Fire Ins. Co. v. MI Windows & Doors, Inc., 2013 WL 4734045*2 (Fla. 2d DCA Sept. 4, 2013), held that the standard for determining whether the “Your Work” exclusion applies is whether the nature and function of the product has been changed.

In MI Windows, MI manufactured and sold sliding glass doors to a contractor who agreed to install the windows in five condominium projects along the Alabama coast. The contractor then subcontracted out the installation to third parties. Id. at *1. In two out of the five projects, the doors were installed with no change. However, in the other three projects, installers used transoms along the top of the doors. This apparently weakened the structural integrity of the doors. MI had to pay more than $3 million to settle defective-product lawsuits. Id.

MI sought coverage under its CGL policy, but its carrier, Liberty, cited the “Your Product” exclusion and denied the claim.  The lower court granted summary judgment in MI’s favor, ruling that the “Your Product” exclusion did not apply because the addition of the transoms significantly changed the doors.

The Second District Court of Appeals reversed the lower court’s decision and held that the “Your Product” exclusion applied because there was no “alchemy” that changed the original product.  Put simply, because the sliding doors were installed for their intended purpose, and operated as sliding doors, the “Your Product” exclusion applied, thereby precluding coverage.

Every CGL policy is different, and it is unclear how the courts will enforce the multitude of exclusions, exceptions, and endorsements, so it is very important to read and re-read the entire CGL policy to best inform clients on what coverage may be available.

Thursday, November 7, 2013

Community Services Committee: Relish The Privilege To Serve Those In Need

By Lara M. LaVoie

As attorneys, we all know that law can be a very stressful profession, and it is easy to get caught up in the cycle of complaining about the unhappiness that we often feel about our jobs and our lives.  What we do not often take the time to realize, though, is just how lucky we really are when we compare ourselves to the rest of the population in this country (and the world, for that matter).  We are fortunate to have been able to develop invaluable skills and accomplish incredible goals in our lives that we so easily take for granted.  We also often forget that we did not make it to where we are on our own.  Whether it was with the blessing of loving and giving parents, true friends, or inspiring teachers, most (if not all) of us have had the love and support of others to help and guide us along the way. 

Others’ lives have not been as fortunate.  There are some people who were simply dealt a different hand and may never have the opportunity to enjoy or accomplish what we have.  Some children have suffered abuse that we could never imagine and have to fight a battle that many of us would not have the strength to fight.  Imagine how different our lives would be if we had started out that way.  We should really feel lucky to have what we do and to have the privilege to help those less fortunate.

When I first volunteered for the Community Services Committee (CSC), I gave a few hours of my time to help with the Dining with Dignity event, which provides the homeless with a lovely, sit-down meal. I was touched by how the members of this committee are willing to take time out of their busy lives and give so generously to those in need. 

This committee is about more than making a monetary donation. It is about spending valuable time to truly touch the lives of others.  You may not think you have the time, or you may think an hour of your time will not change the world. However, just an ounce of caring and compassion may be enough to change one person’s world. 

I was honored when Lisa Esposito asked me to serve as co-chair of the CSC. I hope that we can really make an impact on the community with the amazing volunteer events we have planned for this year.

Being involved in the CSC is your opportunity to make your mark on humanity and on this profession.  Who knows, you may even find more happiness in your life as a result.  After all, as Booker T. Washington said, “Those who are happiest are those who do the most for others.”

Please contact Lara LaVoie ( or Lisa Esposito ( for information on joining the CSC or volunteering for an event.

Tuesday, November 5, 2013

Pro Bono Opportunities: Giving Back Collaboratively

By Joryn Jenkins and Jeremy Gluckman

As collaborative dispute resolution (CDR) grows in Hillsborough County and throughout Florida, several professionals have perceived a need to give back to the community, educate the public, and provide newly trained professionals with opportunities to work in CDR.  Thus was born a joint project of the Collaborative Law Section, Collaborative Divorce Institute of Tampa Bay, Tampa Bay Collaborative Divorce Group, and Bay Area Legal Services to provide divorcing couples of limited means the benefits of this interdisciplinary process.

For those who are not familiar with CDR, it is a private alternative to courtroom divorces.  Each client retains a separate attorney for the limited purpose of helping to reach a settlement without adjudication by the court.  A neutral facilitator guides the parties through the emotional process of dissolution.  A joint accountant or financial planner gathers the necessary financial information and provides financial guidance.

We are very proud to report that our joint program has produced the first pro bono collaborative divorce in Florida.  Nancy Lugo and Bay Area Volunteer Lawyer Program staff selected our first client.  The client chose Joryn Jenkins as her attorney.  Adam B. Cordover offered to work as her husband’s attorney.  Dr. Jennifer Mockler volunteered to serve as the neutral facilitator, and accountant Monica Ospina took on the role of the neutral financial professional.  All of the participants signed the pro bono collaborative participation agreement.

The clients had divided up their personal property.  There was no real property to distribute.  Timesharing and parental responsibility were therefore the critical issues to be resolved, especially because there was a significant other involved and a child born of that subsequent relationship.

The clients brought noteworthy effort to their collaborative table, and the clients and professionals, as a team, helped to sort out their issues.  Issues were identified in individual meetings with the clients and each neutral professional.  The parties and the full team of professionals met several times to resolve their disputes.  Dr. Mockler ably discharged her duties as the team leader, directing the discussion of the parenting plan details. Ospina increased the size of the clients’ limited financial assets by suggesting they not alternate the child tax credit every other year.  Rather, she suggested they maximize the value of that refund by annually awarding credit to the father.  The mother could already claim head of household status with her child born outside the marriage, so the father agreed to reimburse her share of the refund.

The clients reached a full settlement.  Before this is published, they will be divorced.  They will not have antagonized each other by swearing to horrific things about each other in pleadings.  They will have collaborated, under the tutelage of trained professionals, to forge a new and different bond as co-parents for the benefit of their children for the rest of their lives.

If you have an interest in working with our Pro Bono Committee, please contact our Pro Bono Committee co-chairs, Joryn Jenkins or Jeremy Gluckman.

Sunday, November 3, 2013

Community Services Committee Makes A Difference In Lives Of Veterans

By Lisa A. Esposito 

Make a Difference Day - Adopt a Veteran was a huge success, thanks to you!  The Community Services Committee (CSC) did it.  We adopted every veteran on the James A. Haley Veterans’ Hospital’s hardship list, but we couldn’t have done it without the generosity and commitment of you, our members, and your friends, family, and co-workers.     

On October 26, 2013, CSC members visited with our nation’s most revered treasure, our aging veterans in need, to thank them for their service and deliver gifts of gratitude.  If you donated, thank you.  If you helped deliver or spread the word, again, thank you!  The hours we spent meeting these soldiers surely left its mark on us.  

In fact, I would like to share one of my experiences meeting an extraordinary veteran whom I will call Bob.  Bob is 96, still feisty, and quick with a laugh.  He spoke of his time in the Navy during World War II. He smiled when he talked about being a butcher, a baker, and a traveling salesman.  No, he wasn’t a candlestick maker, but he did try lots of professions in his lifetime.  He told me about making doughnuts while a baker, doughnuts better than Dunkin’ Donuts, according to Bob, and in talking with him I would have expected no less.  

Although Bob outlived his family, he still tries to find things to make him laugh every day.  This day, it was the colorful shirt he received from a member.  Bob laughed, saying he would smile when he wore the shirt as the colors reminded him of his youth!  Wow, powerful stuff!  Talking with this extraordinary man made me appreciate my life, my freedom that he helped secure, and my family.  Thanks, Bob.     

My story is just one of many that occurred throughout Hillsborough County on Make a Difference Day.  I hope that all who came out will share stories with your neighbors and family.  The soldiers we visited that day delighted in having someone with whom to reminisce about their lives, and we got to learn about their memorable experiences. We thought we were giving to them, but we walked away realizing we had received so much more.      

If you couldn’t participate in Adopt A Veteran, no worries.  In December, CSC will work with another nonprofit group, Aging Solutions, participating in Elves for the Elderly Holiday Gift Drive.  Our members will become Santa’s elves, adopting needy elderly state wards who can no longer take care of themselves and have no family support.  They need our help with basic necessities such as shoes, socks, maybe a stuffed animal to hug when times get tough!  Help us put some presents under their trees/menorahs.  Without elves like us, they would have no gifts this season!  Interested in adopting an elder or donning some antlers and visiting some special people this season?  For more information, contact Lisa Esposito ( or Lara LaVoie (     

Friday, November 1, 2013

Editor's Message: Giving Thanks To Our Mentors

By Rena Upshaw-Frazier

The fall season seems to be the time of year that we all become acutely aware of things for which we are thankful. We reflect, outwardly and internally, on gratitude for our family and friends, our careers and jobs, and of course the necessities that we have –food, shelter, and clothing. Recently, I was fortunate to have an experience that opened my eyes to a gift that is of great importance to me but for which I had rarely “given thanks.” I share this with you so that you may add it to your “thank you” list this season, if you have not already done so.

Anyone who knows me well knows that I believe that mentors and champions are important in all aspects of life – but particularly in one’s career. Those lucky enough to have mentors who are engaged and involved understand the opportunities for learning, growth, and progression that such relationships can provide. As Isaac Newton is often credited as writing: “If I have seen further than others, it is because I have stood on the shoulders of giants.” Mentors, through their experience and guidance, help us to see further and to become the people, colleagues, partners, and community members we strive to be.

A short time ago, one of my mentors retired. As part of the retirement celebration, someone had the idea of putting together a memento from those who wished to express their gratitude for the things this person had done to enrich their careers or lives. In essence, it was a formal “thank you” package, filled with personal gifts and messages.

As I prepared my message, I realized that it was the first time I was outwardly thanking this person for investing in me, my career, and my goals. I had thanked this person for isolated events, such as for sharing inspiring articles or for introducing me to a certain person. But I had not said “thank you” for the time. I was glad to now have the opportunity; however, I felt remiss that I had not done it sooner. I had taken it for granted that this mentor, and my other mentors, knew that I was thankful for their time and counsel.

Although my mentor’s retirement has not meant the end of our relationship, it has lessened the frequency of our casual conversations during which I would seek the advice. Such discussions now take more planning, but I am thankful that we still have the opportunity to talk. 

This year, as we enjoy this season of giving thanks for the things that we have and appreciate, let us remember to thank our mentors for allowing us to stand on their shoulders so that we may see further. Now is as good a time as any.

Monday, October 28, 2013

Understanding The Benefits Of Discovery Mediation

By Hilary High

Some modern discovery situations are so complex and involve so many unknown factors that the only certainty is that it will be costly.  Add intractable positions to the mix, and litigants are often unable to resolve resulting discovery disputes.  In many situations, mediation offers a cost-effective, solution-based, and low-risk opportunity to resolve discovery disputes without a judge or special master’s involvement.

Why should litigants consider discovery mediation?

1.    It avoids judicial intervention.  Every “view from the bench” event or article urges litigants to resolve discovery disputes.  Discovery mediation forestalls negative attention, avoids adverse orders (and the risk of sanctions), shows collaboration, fosters professionalism, and builds credibility.

2.    It minimizes costs.  Discovery mediation can be as narrow or broad as needed.  Mediating an issue will cost less than obtaining a court order.  It minimizes unproductive conversations and correspondence between litigants, and it eliminates the need for motions, briefs, and reply briefs.  Litigants can informally educate a mediator about applicable rules and case law or about precedential, business, or industry implications.  They will also save money by not traveling to and attending hearings.  They may even agree to a telephonic mediation conference.

3.    It resolves discovery disputes quickly.  Hearing time ― much less enough time to work through complex or numerous discovery problems ― is hard to get and has a strict end time.  Mediators are available on short notice, nights, and weekends, and they can spend as much time as litigants need to resolve a dispute.  A mediated resolution allows litigants to move their case forward, instead of putting a case on hold pending a discovery hearing and order. 

4.    It offers flexibility.  A mediated agreement can accommodate contingencies, alternatives, and subsequent developments, and it can be revisited by the parties.  Unlike “court order” and “flexibility,” “mediated solution” and “flexibility” are not mutually exclusive.  If involving IT or other specialists helps litigants reach an agreement, mediation would allow their real-time involvement, compared to introduction of potentially obsolete or out-of-context affidavits or deposition testimony at a hearing.

5.    It is solution-oriented.  In court, real solutions may fall victim to advocacy and the court’s need to render a clear decision.  Practically speaking, mediated solutions formulated by the parties with the assistance of a neutral may be more effective.

6.    It is risk-free.  Discussions with the mediator are confidential.  Party-crafted solutions offer certainty that is unavailable in court.  Litigants worried an opponent will shirk a mediated discovery agreement may propose reducing it to an agreed order.  Finally, if mediation is unsuccessful, the parties may still seek court intervention.

Litigants who want to resolve a discovery dispute without judicial intervention should consider mediating it.  A professional neutral will help them work through contentious issues and craft workable solutions.

Friday, October 25, 2013

Solo And Small Firms – Representing Clients With Adverse Interests

By James A. Schmidt

A few days ago, I mentioned to Corrie Benfield, the Hillsborough County Bar Association’s new Lawyer magazine coordinator (Welcome, Corrie!), that the Solo-Small Firm Section would be late with its first column of the year because we were “short-handed.” Corrie graciously accommodated us. Now, as David Stamps and I write to tell you about what we have planned for the year, the “short-handed” comment seems to dovetail perfectly with those plans.

The section’s theme for this Bar year is to help our members improve how they use non-lawyers to build and strengthen their practices.  Non-lawyers are all around us.  They are an abundant resource and are often very keen to work with us.  By harnessing their interest and leveraging it properly, lawyers can become more effective in their practices, reduce unnecessary risks, and bring about a better work-life harmony.

So this year, our goal will be to have every lunch speaker and column author be a non-lawyer,  with each being from a different field. David and I have identified many non-lawyer roles that we feel are instrumental to the practice of law, including traditional and forensic accountants, financial advisors, technology professionals, and business coaches. This list is hardly complete, and because all of our programs and columns are not yet spoken for, we solicit your thoughts and suggestions for non-lawyers whom you use in your practices.

On September 25, we started our year off by partnering with the Marital & Family Law and Real Property, Probate & Trust Law Sections to host Patrick Dougherty, a CPA with The Florida Bar. Dougherty spoke about best practices for law office accounting and how to meet your trust accounting requirements with the greatest efficiency.

Please mark your calendars for our remaining lunches of the year on February 4 and April 22, the planning for all of which is underway. And stay tuned. We hope that our programming for the year will leave you feeling a bit less “short-handed.”

Wednesday, October 23, 2013

Second Chance: Florida’s 1973 – 1976 Cuban Lawyer Admission Project

By Harley Herman

As you entered your office this morning, the one document you probably did not look at was your license to practice law.  The idea that one day our system of law could end and we would lose our careers never enters our minds.  This happened to Cuban lawyers when they fled Cuba after Fidel Castro’s revolution.  They came to our shores, knowing that because their law schools taught the Civil Law of Cuba, not the American Bar Association Common Law courses, they were not eligible to join The Florida Bar. 

Forty years ago, on July 31, 1973, a Florida Supreme Court Order opened a door that brought the skills of these lawyers to Tampa and other Florida cities.  The court order authorized a special program of study as a prerequisite to taking the Bar exam.  The University of Florida’s law school created and taught a 21-month weekend course of study to acquaint Cuban lawyers with our Common Law system and its application to Florida law. 

Most Floridians were unaware of the unmet legal needs of Cuban refugees who fled to Florida and the wealth of legal talent we received during the exile.  Per the court’s findings, by 1973 only 40 Florida lawyers spoke Spanish, but the refugee population of Florida exceeded 300,000.  The number of Cuban lawyers and judges in Florida was so great that many retained the name and operations of the Havana Bar Association.

The 1973 order was sought after other alternatives proved inadequate.  Hillsborough County Bar Association President Reece Smith asked the Honorable E. J. Salcines to introduce Cuban lawyers to Tampa law firms. Without the ability to practice law, few options were available.  Carlton Fields employed Felipe Ramon Pacheco.  He established and organized the firm’s library and served as a translator for the firm.  His return to practice on December 18, 1975, became possible only when the court authorized the special law school program for Cuban lawyers.

Similarly, former Cuban Judge Adalberto Tosca worked at St. Joseph’s Hospital until then-State Attorney E. J. Salcines hired Tosca to interview and translate affidavits for criminal proceedings. He had left Cuba with $5 after he resigned his Cuban judgeship because the Cuban government informed him of the sentence of the people who appeared before him, prior to the defendants’ trials.  After the 1973 order, he became a Tampa lawyer on October 23, 1975.

The Tampa students held review sessions each week at the offices of Tampa attorney Luis Dial, Jr.     Upon completion of the program, the experienced former lawyers, judges, and law professors from Cuba joined young law students in taking the Miami Bar exam.  Pacheco, Tosca and others returned to join and enrich our legal community. 

Their struggle 40 years ago and dedication to our profession’s aspirations will soon be appropriately recognized. In upcoming ceremonies proposed for the University of Florida, the HCBA Diversity Committee, and the Tampa Bay Hispanic Bar Association, the few surviving Hillsborough Cuban lawyers who rejoined our profession and the HCBA members who assisted them will be recognized.