Monday, March 31, 2014

Appellate Practice: Busy Second District Adapts To Electronic Filing

By Dineen Pashoukos Wasylik

Second District Court of Appeal Chief Judge Charles A. Davis Jr. gave a detailed report on the state of the court at the Hillsborough County Bar Association’s annual breakfast with the Second District Court of Appeal in March.  Despite – or maybe in part because of – the advent of electronic filing using the state’s eFiling Portal, Chief Judge Davis reported that the state of the court is, in a word, busy. 

Indeed, since September 23, attorneys have submitted more than 14,000 electronic filings, and that number does not count pro se papers filed in hard copy and scanned by the clerk. 

These numbers are reflective, in part, of the large number of cases initiated before the court. For fiscal year 2012-13, the court had 6,081 cases initiated. In 1994 – the last year the Legislature added a judicial seat to the Second District – there were only 4,625 cases initiated. So the court is dealing with a 31 percent increase in caseload without any additional judges to help shoulder that load.

The court’s heavy caseload stretches the judges to their limits, even when taking into account the relative difficulty of each case. The Florida Supreme Court has a system for weighting the judicial caseload for difficulty, and although the system recommends that an appellate judge have a weighted caseload of no more than 280 cases, for 2012-13 the weighted caseload per Second District judge was 350 cases. Because of this, the Florida Supreme Court this year has certified to the Legislature the need for two additional judgeships for the Second District. If the additional judgeships came through, the court would still be maxed out with a 284-cases-per-judge weighted caseload.  Although the Legislature did not act on several previous requests for additional judgeships for the Second District, the court is hopeful that this year’s request will have political traction.

The increased caseload can’t be attributed to one specific kind of case, either. Over the past five years, the court has seen an 18 percent increase in civil filings, of which many can be attributed to foreclosure litigation; a 14 percent increase in post-conviction proceedings; and an 11 percent increase in family law filings. The diversity of cases means the judges don’t often see the same issue twice, and it contributes to the turnaround time for decisions.

Due to the difficulties of transitioning to an all-electronic system, both the judges and the court staff have had to put in many more hours than usual to handle this caseload. Although the clerk’s office is no longer creating file wallets, for example, the staff instead is working overtime to ensure the systems are in place to route electronic cases appropriately.  In addition, the clerk still sends out opinions and orders on paper and interacts with prisoners and pro se litigants by paper.

Chief Judge Davis reported that the judges are slowly but steadily adapting to reading everything on screens rather than paper. He also credited the court’s collegiality for its success in making the transition work. 

Friday, March 28, 2014

Human Trafficking And 32 Billion Reasons To Fight It

By Stevie J. Swanson

During the 360-year span of the Trans-Atlantic Slave Trade, approximately 9.9 million Africans were transported to the Americas. Robert Fogel, “Slavery in the New World,” in “Slavery in American Society 22” (Lawrence B. Goodheart et al. eds., 1992). It is estimated that there are currently 27 million people enslaved worldwide.  President Barack Obama has stated that human trafficking is modern-day slavery. More awareness is necessary to eradicate human trafficking. Most people simply do not think that slavery still exists today; however, human trafficking is a $32 billion-per-year industry.  

Civil rights and social justice advocates in the United States need to pay particular attention to the human-trafficking epidemic. Traffickers prey on vulnerable populations, such as undocumented migrants, runaways, at-risk youth, and members of oppressed and marginalized groups, although anyone is a potential victim. Mary C. Burke, “Human Trafficking: Interdisciplinary Perspectives” (Routledge: Taylor & Francis Group, 2013).

Florida ranks third in the nation for human-trafficking violations.  Many victims of the sex-trafficking industry are linked to adult entertainment, and Hillsborough County has more strip clubs per capita than any other city in America.  The ramifications of the human-trafficking epidemic are, as a recent and compelling WEDU documentary title states, “Too Close to Home.”

What can we do to help?  Education, corporate responsibility in supply chains, conscientious consumerism, and legislative reform are all viable ways to effectuate positive change. You can go to to see how the items you purchase are related to human trafficking (and see how many slaves are working for you). Additionally, you can report suspicious activity to the National Human Trafficking Tip Line at 1-888-373-7888.

Dr. Martin Luther King Jr. once said, “We will have to repent in this generation not merely for the hateful words and actions of the bad people but for the appalling silence of the good people.” Let us do what we can to end the silence. Noted abolitionist William Wiberforce once said, “You may choose to look the other way, but you may never again say that you did not know.” We must acknowledge the crisis of human trafficking in order to successfully combat it.  If you are interested in learning more about human trafficking, you are welcome to email me at

Tuesday, March 25, 2014

Criminal Law: The End of the Biased Juror?

By Matt Luka

In September 2013, the Supreme Court of Florida confronted the practical “realties of human nature” that place potential jurors who express personal bias beyond rehabilitation through voir dire. See Matarranz v. State, ―So. 3d―, 2013 WL 5355117, *9 (Fla. 2013). The court recognized what many practitioners have long felt. “Any lawyer who has spent time in our courtrooms, whether civil or criminal, has experienced the frustration of prospective jurors expressing extreme bias against his or her client and then recanting upon expert questioning by the opposition, which generates such embarrassment as to produce a socially and politically correct recantation.” Id. at *15. To that end, the court determined that a juror’s assurances of impartiality after an announced prejudice “are neither determinative nor definitive” and are “questionable at best.” Id. at *9 (citations omitted).

After Matarranz, jurors who express fixed opinions and firmly held beliefs based on personal life experiences are considered essentially beyond rehabilitation. Id. at *10. The court found “preposterous” the notion “that ‘the human capacity for rational reflection’ is but a light switch that can be flipped on or off, and a trial court may thereby procure a juror who mere minutes before expressed unacceptable bias and partiality.” Id. at *13. To its credit, the court sought to redress firmly rooted ideas about the ability of jurors to put aside “unique biases, prejudices, predilections, predispositions and viewpoints.” Id. at *9. The court recognized that over time, “trial court discretion with regard to the removal of comprised jurors has at times become so broad that our courts have lost sight of the principles of law that undergird juror qualification determinations.” Id. at *10. 

However, the court did not entirely foreclose the possible rehabilitation of a juror. The court distinguished between jurors who hold biases rooted in life experiences or personal beliefs and those who merely express a misunderstanding of the law or judicial process. Id. at *10-11. The latter can be corrected through discussion with the court and attorneys, whereas the former cannot. Id.

Matarranz’s impact is significant, but the impact could be lost by failing to preserve jury selection errors for appellate review. Counsel should first object to a specific juror for cause. Id.  at *6. If the court overrules the objection, counsel should then exercise a peremptory challenge on the juror. Id. at *8 (reversible error for court to force a party to use peremptory challenge). Once peremptory challenges are exhausted, counsel must request additional peremptory challenges that are denied and identify a specific juror that he or she would have excused with the additional challenge. Id. at *7. Counsel is not required to list by specific name a second time the juror who should have been initially removed for cause but was not. Id. at *7. And, most importantly, counsel must renew the objection before the jury is sworn. Id. “Once counsel has noted that he or she would strike a specific juror for cause, and again renews the objection before the jury is sworn … a trial court [has] notice that counsel believes a juror has been retained in error … [and] a final opportunity to redress the situation.” Id. (citing Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993)). 

Monday, March 24, 2014

Law Week 2014: A Success!

By Amy Nath

The week of March 17, students, judges, and attorneys across Hillsborough County came out in droves to enthusiastically celebrate Law Week 2014. Year after year, Law Week draws support from judge and attorney volunteers who choose to spend countless hours mentoring local elementary, middle, and high school students by leading courthouse tours, giving talks, or presenting mock trials. 

School exam schedules required that Law Week be moved roughly six weeks earlier this year than in recent years, leaving Hillsborough County Bar Association Law Week organizers to wonder whether volunteer needs could be met in a significantly decreased amount of time. The organizers rallied for support, but their worry was unwarranted. Dozens of veteran volunteers raised their hands for an opportunity to work with the students again, and a new generation of Law Week volunteers stepped up as well. Once again, when all was said and done, thousands of Hillsborough County students and scores of attorney and judge volunteers actively participated in Law Week festivities.   

Throughout the George E. Edgecomb Courthouse, children and tour leaders could be found attending proceedings or discussing the workings of the court system. In classrooms across the county, students performed the mock trial of The Three Bears v. Goldilocks, and volunteer attorneys discussed the Law Week 2014 theme, “American Democracy and the Rule of Law: Why Every Vote Matters.”

Although the theme is particularly relevant in election years like this one, it also reminds us that the fundamental right to vote must never be taken for granted. The topic of voting rights can be as important in an introductory lesson to elementary school students as it can be in a reminder discussion with high school seniors, reflecting on the importance of a citizen’s right to vote and the challenges we continue to face in ensuring that all Americans have the opportunity to participate in our democracy.

On behalf of the entire HCBA Law Week Committee, I extend a sincere “thank you” to the volunteers, students, and educators who helped create another fantastic and inspiring Law Week.  We hope to see you next year!

The HCBA would like to thank all the volunteers who participated in Law Week 2014:

Classroom Speakers
Dale Appell
Zachary Bayne
Jennifer Waugh Corinis  
Terin Barbas Cremer
Kevin Elmore    
Diana Evans
Martha V. Evans
Cameron Frye
Alexandra Haddad
Lynn E. Hanshaw
Tom Hyde
Caroline Levine
Paul McDermott
Ryan McGee
Bradley Merritt
Felix Montanez
Anthony Palermo
Eliott Peace
Joshua Roman
Robert Webster
Courthouse Tour Guides
Tim Anderson Jr.
Tim Anderson Sr.
Carmen Bland
Chris Broussard
John Castro
Ed Comey
Gretchen Cothron
Antoine Daniels
Wendy DePaul
Katelyn Desrosiers
John Dingfelder
Katherine Fand
Christina Anton Garcia
Melissa Gonzalez
Tony Julian
Jared Kahn
Susan Lopez
Antina Mobley
Lauren Nayrouz
Jessica O'Connor
Tom Palermo
Sara Peacock
Elyse Roenick
Jennifer Strouf
Mock Trial Volunteers
Chris Bentley
Cecilia Bidwell
Jan Brown
Judge Marva L. Crenshaw
Jackie Coleman
Vivian Cortez
Eric Cruz
Antoine Daniels
Frank Deak
Sacha Dyson
Brandon Faulkner
Janice Garren
Brian Guthrie
Charles Harden
Sam Harden
George Harder
Mark Heilig
Cullan Jones
Rachel Jones
Kyle Lee
Barbara Leon
Caroline Johnson Levine
Maegen Peek Luka
Melody Manning
Jason Margolin
Judge Mark Massey
Paul McDermott
Brad McDonald
Whitney Miranda
Richard Mockler
William Edwards Muniz
Jeff Patenaude
Nathan Paulich
Wendy Powell
Matthew Ransdell
Tara Rao
Amanda Sansone
Dale Swope
Ashley E. Taylor
Donna Wysong
Jennifer Wallace
Rachel Zysk

Thursday, March 20, 2014

Proposed Collaborative Law Legislation in Florida

By Sarah E. Kay

The collaborative practice of law is a voluntary dispute-resolution process in which the parties, their lawyers, and joint neutral experts follow procedures designed to promote an amicable resolution. The parties agree to litigate with new counsel and experts only if the collaborative process fails. The collaborative law movement has developed, grown, and gained momentum since its birth in the 1980s. A Uniform Collaborative Law Act was drafted in 2009, versions of which have been enacted by seven states and the District of Columbia.

Florida circuit courts in HillsboroughOrange and OsceolaMiami-Dade, and Brevard counties have administrative orders formalizing the law process within their jurisdictions. To date, Florida does not have a statewide collaborative rule or law, nor any collaboratively focused rules of professional conduct. 

The Family Law Section of the Florida Bar began considering a statewide collaborative rule or law around 2008 and has thereafter been working on collaborative legislation. The section has a standing position supporting the statutory recognition of collaborative law as a form of alternative dispute resolution in family law cases and the establishment of a privilege regarding the disclosure of information related to collaborative proceedings. 

Collaborative law bills were introduced for Florida’s 2014 legislative session in the Senate (Bill 1190) and the House of Representatives (Bill 1397). At the time this article was written, the bills were still pending subject to revisions. The bills, if passed, would amend Chapter 61 effective July 1, 2014, to establish definitions, procedures, and a privilege for the collaborative law process. The privilege would permit a party or non-party participant to refuse to disclose any collaborative law communication except in the event of a written waiver of privilege, threats of bodily injury or crime, malpractice actions, child or adult abuse, neglect or exploitation, or in a rescission or reformation proceeding of a collaboratively reached contract.  The proposed legislation does not address the mandatory disqualification of the collaborative attorney. Other state legislatures with similar proposed legislation include Illinois, Massachusetts, Michigan, New Jersey, Oklahoma, and South Carolina.  

The Florida Bar Rules Committee previously proposed a family law collaborative rule of procedure on which the Supreme Court declined to take action in light of “pending legislative efforts.” It is assumed that if the bills pass, the Supreme Court will take up review of the proposed rule.

Construction Law: A Complicated Relationship - Pleading Indemnity Claims

By Adam C. King

Parties in construction defect lawsuits routinely assert common law indemnity claims against downstream subcontractors, material suppliers, and other entities whose work or materials caused the defects at issue. Common law indemnity is a claim that shifts responsibility for damages from a party without any active negligence or fault ― but who is liable for damages via vicarious, constructive, derivative, or technical liability principles ― to the party who is actively negligent or at fault. In the seminal Florida common law indemnity case, Houdaille Industries, Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979), the Supreme Court stated that there is no right to common law indemnity absent a “special relationship” that makes the prospective indemnitee vicariously, constructively, derivatively, or technically liable for the wrongful acts of the prospective indemnitor. Because Florida law does not clearly define this purported “special relationship,” defendants frequently move to dismiss common law indemnity claims, arguing that the existence of a “special relationship” is not properly pleaded.

In Diplomat Properties Limited Partnership v. Tecnoglass, LLC, 114 So. 3d 357 (Fla. 4th DCA 2013), the Fourth District Court of Appeals determined that a “special relationship” is not a separate element that a plaintiff must allege to state a common law indemnity cause of action. The case relates to the construction of The Westin Diplomat hotel in Hollywood, Florida, that the plaintiff, Diplomat Properties (“Diplomat”), owned. During the project’s construction, Diplomat hired Shower Concepts, Inc., to furnish and install glass shower doors in the guest rooms. Shower Concepts entered into a contract with Tecnoglass to fabricate the shower doors. After the hotel opened, numerous shower doors spontaneously fractured as a result of a manufacturing defect. Diplomat obtained an arbitration award and final judgment against Shower Concepts for the associated damages. The arbitration award did not include any finding that Shower Concepts was vicariously, constructively, derivatively, or technically responsible for Tecnoglass’ manufacturing defect. In lieu of executing on its judgment, Diplomat took an assignment of Shower Concepts’ claims against Tecnoglass. As Shower Concepts’ assignee, Diplomat then filed a separate lawsuit against Tecnoglass that included a common law indemnity claim alleging that Shower Concepts was held vicariously, constructively, derivatively, or technically liable for Tecnoglass’ wrongful acts. Tecnoglass successfully moved to dismiss the common law indemnity claim because Diplomat failed to allege that a “special relationship” existed between Shower Concepts and Tecnoglass.

The Fourth District reversed the trial court’s decision and held that Diplomat was not required to specifically plead the existence of a “special relationship.” The court stated that “[t]he term ‘special relationship’ merely describes a relationship which makes a faultless party ‘only vicariously, constructively, derivatively, or technically liable for the wrongful acts of the party at fault.’ ” Thus, if a plaintiff sufficiently pleads the existence of vicarious, constructive, derivative, or technical liability, there is no separate requirement to allege a “special relationship.” Based on Diplomat, it appears common law indemnity claims will be more likely to survive motions to dismiss and may be a more viable basis to shift liability to parties that bear responsibility for defect claims. 

Wednesday, March 19, 2014

How Mentors Can Help The Collaborative Law Process Succeed

By Jennifer Ross

Collaborative divorce is relatively new in this area, and there is still much to be learned by those involved ― from the experienced professional to the newcomer. Although I have been involved in hundreds of traditional litigation cases during my career, this knowledge and experience is not completely transferable due to unique aspects of the collaborative process. The work product is much the same, but key differences lie in the process by which the outcome is achieved.  Because these differences do not involve the technical aspects of a financial professional’s work, traditional education methods are less effective, and a mentoring process is beneficial. The discussions, support, and free exchange of ideas that form the basis of a mentoring relationship would offer advantages for all participants.

Unlike traditional divorce litigation, the collaborative process combines four professional roles to form a multidisciplinary team. The team includes an attorney for each party, a financial professional, and a facilitator. The parties ultimately control the outcome, but the form of the process is set by the team. It is this collaborative team aspect that introduces new questions and issues for the professionals involved. Examples of the types of issues that are unique to the collaborative process include:

•    Devising solutions when conflicts between the parties arise. There is no judge to make rulings to resolve conflicts. Therefore, the professional team must determine the proper approach to move the process forward in a way that best addresses the goals identified by the parties.

•    Handling communications between professional team members and with the parties. Some communications may be appropriate for all parties, but some should be limited to specific team members.

•    Working effectively with the facilitator. A financial professional’s work on a litigated matter does not typically involve interacting with a mental health professional or facilitator. 

•    Using a problem-solving approach to find solutions to issues that meet the parties’ stated goals/interests. This is a different approach to the resolution of financial issues than that used in preparing for litigation or even in traditional mediation.

Collaborative team members must exercise their own discretion, both individually and in collaboration with other team members. Good judgment is gained in large part through experience. The experience and insight that can be offered by a mentor would be of great value to a newcomer to the collaborative process. Having the opportunity to observe other collaborative matters and have access to a mentor for support would allow professionals new to the collaborative process to confidently fulfill their role and be a fully contributing member of the team. This will, in turn, result in better outcomes for the parties, which will be beneficial to the future success of the collaborative model for divorce practice. It’s my hope that all those practicing collaborative law will be open to and supportive of the development of mentoring relationships among professionals in our community.

Monday, March 17, 2014

Appellate Practice: The Purpose Of An Appendix

By Robin Horton Silverman

Florida Rule of Appellate Procedure 9.220(a) specifies that the purpose of the appendix is “to permit the parties to prepare and transmit copies of such portions of the record deemed necessary to an understanding of the issues presented.” Sometimes the appellate rules mandate or strongly encourage that an appendix accompany a petition, brief, motion, response, or reply where a formal record is not required. See Fla. R. App. P. 9.100(g), (k); 9.110(i); 9.120(d), (f); 9.130(e); 9.142(c)(5); 9.160(h); 9.170(c)-(d); 9.180(h)(2); 9.190(c)(2)(F), (c)(3), (c)(4). Other times an appendix may be helpful to direct the appellate court to key documents in an otherwise cumbersome record. 

An appendix must contain an index and a conformed copy of the opinion or order to be reviewed. See Fla. R. App. P. 9.220(b). An appendix may also contain other portions of the record and pertinent authorities that may be difficult to locate through conventional research methods. Id. 

However, an appendix is not a means to have the appellate court consider materials that were not part of the original record. See Pedroni v. Pedroni, 788 So. 2d 1138, 1139 n.1 (Fla. 5th DCA 2001); Altchiler v. Dep’t of Prof'l Regulation, 442 So. 2d 349, 350 (Fla. 1st DCA 1983); Finchum v. Vogel, 194 So. 2d 49, 51 (Fla. 4th DCA 1966). And an appendix cannot be used in lieu of a formal record required for appeals of final orders of lower tribunals. See Crabtree v. Rogers, 364 So. 2d 106 (Fla. 1st DCA 1978) (citing rule 9.100(g)).

There are additional considerations now that e-filing is required throughout the state. Several appellate courts have entered administrative orders outlining supplementary requirements for electronically filing these appendices. See Second District Court of Appeal Administrative Order 2013-2 [hereinafter Order 2013-2]; Third District Court of Appeal Administrative Order A03D13-05; Fourth District Court of Appeal Administrative Order AO2013-04. For example, the Second District Court of Appeals requires that appendices be in Adobe PDF format, properly indexed, and either bookmarked or hyperlinked and fully searchable. See Order 2013-2. The Second District also suggests that an attorney submitting the appendix assign identifying letters or numbers to the documents, refer to this designation in the principal submission, provide an index to the appendix at the outset, and include both the name of the document and the corresponding letter or number assigned to it in the Adobe pane.  Further, all of the documents submitted as appendices shall be transmitted in one filing that does not exceed the e-portal’s 10MB capacity. Id. Filers who do not comply with these procedures risk having the Second District order them to submit a supplemental electronic appendix. See Order 2013-2.

Because the e-filing procedures are still being improved, it is prudent to not only consider the Florida Appellate Rules while creating an appendix but to also review the website materials and administrative orders from the applicable appellate court to determine whether additional procedures need to be followed. 

Saturday, March 15, 2014

Intellectual Property Cases Are High On Supreme Court’s To-Do List

By Dineen Pashoukos Wasylik

The Supreme Court this term is hearing a record high of eight intellectual property cases ― 11.4 percent of the court’s docket, according to Reuters.  Be on the lookout for decisions in the following important cases:


American Broadcasting Companies, Inc. v. Aereo, Inc., No. 13-461: The issue presented is whether a company “publicly performs” a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet. Oral argument is set for April 22. 

Petrella v. Metro-Goldwyn-Mayer, Inc., No. 12-1315.  The court heard argument on January 21 in this case, which considers whether the defense of laches can apply to copyright claims brought within the statute of limitations. The plaintiff’s claim was decades old, but she only sought damages for the most recent three years. At oral argument in February, the court seemed skeptical of the limited claim.


Limelight Networks, Inc. v. Akamai Techs., Inc., No. 12-786.  Can one induce patent infringement if there is no underlying direct infringement? This so-called “divided infringement” has become more of an issue as patent owners struggle to enforce patents applicable to the Internet. The court is scheduled to hear argument on April 30.

Highmark, Inc. v. Allcare Management Sys., Inc., No. 12-1163; and Octane Fitness v. ICON Health and Fitness, No. 12-1184.  In both Highmark and Octane, the court is considering the application of the exceptional-case finding under 35 U.S.C. § 285. Both petitioners are defendants arguing that the Federal Circuit is too rigid in its application of the standard, depriving prevailing defendants of attorneys’ fees awards to which petitioners argue they should be entitled. Oral argument was held February 26.  The decision has the potential to affect trademark cases as well, since the Lanham Act also uses an “exceptional-case” standard.

Medtronic, Inc. v. Boston Scientific Corp., No. 12-1128. In the only IP case so far to have an issued decision, the Supreme Court unanimously reversed the Federal Circuit on the issue of who bears the burden of proof when a licensee seeks a declaratory judgment against a patentee to establish that its products do not infringe the licensed patent. The court ― in an opinion strongly admonishing the Federal Circuit for failing to apply “simple legal logic” ― held that the patentee bears the burden of persuasion on the issue of infringement.

Nautilus v. Biosig Instruments, No. 13-369.  In Nautilus, the court will wrestle with the issue of how definite and precise a patent claim must be to constitute a valid claim. The case promises to be important to patent litigators and prosecutors alike. The court is scheduled to hear argument on April 28.

POM Wonderful LLC v. The Coca Cola Co., No. 12-761. POM Wonderful requires the court to clarify the intersection between the Lanham Act’s unfair and deceptive trade practices provisions and the Food and Drug Administration’s labeling requirements. Can a private party challenge an FDA-compliant label under the Lanham Act? Oral argument is scheduled for April 21.

Thursday, March 13, 2014

Appellate Practice: Standard Of Review For Orders Granting A New Trial

By Kimberly Jones

A jury verdict affords a moment of triumph or defeat. However, it is often not the end of the battle, with work quickly resuming to draft post-trial motions and prepare for appeal. For lawyers handling a motion for new trial or an appeal of an order granting one, a recent Florida Supreme Court decision provides an excellent review of the applicable law. 

In Van v. Schmidt, SC11-1467, 2013 WL 4734584 (Fla. Sept. 4, 2013), the Florida Supreme Court considered how an appellate court should review a trial court’s order granting a new trial because the jury verdict was contrary to the manifest weight of the evidence, where the order was partly premised on legal error. Van involved a personal injury action where liability was admitted. The jury returned a verdict awarding no damages. The trial court granted the plaintiffs’ motion for new trial based on the manifest weight of the evidence regarding causation, but the order was partially premised on the erroneous legal conclusion that the jury could not reject uncontroverted expert testimony. The First District Court of Appeals reversed the order and remanded for the trial court to enter judgment on the verdict. 

Exercising its discretionary jurisdiction, the Florida Supreme Court resolved a conflict between the First and Fourth Districts regarding the deference an appellate court affords to a trial court’s legal conclusions in an order granting new trial. (The Supreme Court exercised its discretionary jurisdiction to resolve the conflict between the First District’s decision in Schmidt v. Van, 65 So. 3d 1105, 1107–08 (Fla. 1st DCA 2011), which did not give deference to the trial court’s erroneous conclusion of law, and the Fourth District’s decision in Kuebler v. Ferris, 65 So. 3d 1154, 1158-58 (Fla. 4th DCA 2011), which emphasized the “very limited authority of the appellate court in reviewing the broad discretion granted to the trial court.”) It also explained the proper inquiry and remedy once an appellate court concludes the order is premised on erroneous conclusions of law.

The court held that “an appellate court properly applies a de novo standard of review to a trial court’s conclusions of law in an order granting a new trial based on the manifest weight of the evidence, giving no deference to the trial court’s legal conclusions.” Id. at *1 (approving the reasoning of Schmidt to the extent that the First District’s analysis was consistent with this holding, and disapproving Kuebler to the extent that the Fourth District interpreted E.R. Squibb & Sons, Inc. v. Farnes, 697 So. 2d 825 (Fla. 1997), and Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla. 1999), to require deference to a trial court’s conclusions of law, even where the trial court’s order was partially premised on an error of law). However, the appellate court affords deference to a trial court’s findings of facts and determinations of credibility given the trial court’s superior vantage point over the trial. The appellate court may not focus on whether the verdict was supported by competent, substantial evidence, but instead on whether the trial court was unreasonable in ordering a new trial. Id. at *10, *16.  

If an appellate court determines a new trial was ordered based, in some part, on legal error, the next question is whether the trial court would have granted a new trial but for the error of law. When the appellate court cannot determine whether the trial court would have reached the same result but for the legal error, the proper remedy is to return the case to the trial court for reconsideration of its order in light of the correct legal principles. However, if the trial court’s result could only be based on the legal error, the appellate court can reverse and remand for reinstatement of the jury’s verdict.

Aside from the holding, this decision is worth reviewing for a refresher on the cases that established the principles governing appellate review of these orders. Van will assist in preparing post-trial motions or proposed orders, while affording guidance on the standard and remedy on appeal.

Tuesday, March 11, 2014

Law Week 2014 - American Democracy and the Rule of Law: Why Every Vote Matters

By Alexandra Haddad

Franklin Roosevelt once said, “Nobody will ever deprive the American people of the right to vote except the American people themselves, and the only way they could do this is by not voting.” One of our most cherished ideals is that we are a government of the people, by the people, and for the people. This principle is enshrined in our nation’s founding documents.

The right to vote is the very foundation of a government by the people. This year’s Law Week theme is “American Democracy and the Rule of Law: Why Every Vote Matters.” As we approach the 50th anniversaries of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, Law Week’s aim is to reflect on the importance of a citizen’s right to vote and the challenges we still face in ensuring that all Americans have the opportunity to participate in democracy. 

Law Week will take place this year from March 17 through 21. Throughout the week, volunteers will educate local youth on the development of voting rights in the United States. They will highlight that citizens who participate in free and fair elections can ensure the legitimacy of the rule of law. Law Week provides opportunities for attorneys across Hillsborough County to break away from their daily routines to reach out to local students through three different activities: courthouse tours, classroom discussions, and mock trials.

The courthouse tour involves leading groups of students through courtrooms and other areas of the courthouse to give them a glimpse of the rule of law in action. Classroom discussions involve traveling to a local school to lead a class or group of students in a discussion on the law and answer student questions.  Finally, volunteers who participate in mock trials team up in groups of three and travel to a local school to work with students in presenting a student-friendly case (such as Goldilocks v. The Three Bears). Participating schools are located throughout the county, and volunteer attorneys are welcome to participate in any of the three activities available.

By taking a few hours out of the daily grind, local attorneys have the opportunity to really interact with young students. By teaching these students about democracy in America, the attorneys themselves will be reminded of how lucky we are to live in a country where everyone is afforded the right to vote and how special that right is.

Speaking about the right to vote, Lyndon B. Johnson said, “There is no duty which weighs more heavily on us than the duty we have to ensure that right.” As we celebrate Law Week 2014, let’s all remember how fortunate we are to have the right to vote in free and fair elections, but let’s also work toward the challenges we face to ensure that right.

If you are interested in learning more about Law Week 2014 or volunteering, please contact Young Lawyers Division Law Week Committee Co-Chairs Kelly A. Zarzycki ( or Amy Nath (

Monday, March 10, 2014

State Attorney's Message: Fighting Prescription Drug Abuse

By Mark A. Ober

“Nearly 15,000 people die every year of overdoses involving prescription painkillers. In 2010, 1 in 20 people in the US (age 12 or older) reported using prescription painkillers for nonmedical reasons in the past year. Enough prescription painkillers were prescribed in 2010 to medicate every American adult around-the-clock for a month.”  These statistics from the Centers for Disease Control paint a shocking picture of the dangers of prescription drug abuse. 

One of the tools available to my office in fighting this problem can be found in Chapter 893 of the Florida Statutes. Florida Statute § 893.03 establishes categories of drugs called schedules that are regulated under criminal law. § 893.03, Fla. Stat. Currently, more than 300 drugs are specifically listed in the schedules. Id. The schedules classify drugs based upon their potential for abuse and whether the drugs have accepted medical uses. Id. Although some drugs have “no currently accepted medical use in treatment in the United States,” § 893.03(1), Fla. Stat., the schedules also contain drugs that can be obtained by a valid prescription from a physician.

Florida Statute § 893.13 regulates the possession and distribution of scheduled drugs and delineates what acts constitute criminal violations. This statute also makes the possession of certain drugs that are “lawfully obtained from a practitioner or pursuant to a valid prescription” noncriminal. § 893.13(6)(a), Fla. Stat. Some prescription drugs have a high potential for abuse and are sought by people with an addiction to these substances. The statute criminalizes certain acts such as possessing a blank prescription form or obtaining drugs through the use of fraud or forgery. § 893.13(7)(a), Fla. Stat. My office uses these statutes as well as others to try to combat the dangers of prescription drug abuse. 

Criminal prosecution alone cannot stop this crisis. The combined efforts of the entire community are needed. Every individual who legally possesses prescription drugs can help control how accessible these drugs are. In 2010, the Drug Enforcement Agency began the National Prescription Drug Take-Back Day. This program allows individuals to turn in unused or unwanted prescription medications so that the drugs can be disposed of safely by law enforcement. By 2012, this program had taken in more than 2 million pounds of prescription drugs.  Our local law enforcement agencies have been instrumental in coordinating these take-back events. In an effort to expand the availability of this disposal method, the Hillsborough County Sheriff’s Office and Tampa Police Department have installed permanent drug drop-off boxes. This makes the disposal of unused or unwanted drugs even easier. Too many lives have been destroyed by prescription drug abuse. Law enforcement and the public must work together to end this epidemic. 

Friday, March 7, 2014

Merger Mania Hits Tampa Law Firms, Reflects National Trend

By John F. Kynes

To merge, or not to merge? That question seems to be on the minds of managing partners at an increasing number of law firms across the country these days.

This includes Tampa, where it was first reported in January that the prominent 97-lawyer firm Fowler White Boggs was in merger talks with the 450-lawyer Pittsburgh-based firm Buchanan Ingersoll & Rooney. No deal was final as the Lawyer went to print, but the talk of a combination does seem to reflect a national trend.

There were 88 law firm mergers and acquisitions announced in the U.S. in 2013, according a recent report by the legal research firm Altman Weil. The total number of mergers is up 47 percent from 2012.

This is the largest number of law firm combinations recorded in the seven years Altman Weil has been compiling statistics.

“The surge in 2013 numbers was driven by a boom in acquisitions of small firms,” said Altman Weil principal Ward Bower. “These kinds of deals are smart, low-risk moves to enter new markets and acquire new clients, and we expect the trend to continue in 2014.”

Of the 88 law firm mergers reported in 2013, 82 percent were acquisition of firms with 20 or fewer lawyers, according to the report. The South was the most active geographic region for combinations in 2013, representing 25 percent of all recorded deals.

Rhea Law, Fowler White’s chief executive officer, told the Tampa Bay Times in January that the firm regularly gets “many inquiries” from firms wanting to expand in Florida. “These inquiries have increased during 2013 because of the recovering economy and Florida’s attractiveness for business growth and economic development,” Law said. “We have had serious discussions with Buchanan Ingersoll & Rooney over the last few months because of similarities in culture, practices, commitment to clients, as well as their existing presence and desire to grow in Florida.”

Meanwhile, Carlton Fields, which was founded in 1901 and is Tampa’s largest firm with 111 local lawyers and government consultants, announced in January that it had finalized its merger with Jorden Burt LLP. The firm now operates as Carlton Fields Jorden Burt, P.A., and consists of more than 370 lawyers and consultants spread out over 10 offices.

“We believe this combination positions us exceptionally well to meet the evolving needs of our clients in this country and abroad,” Gary Sasso said in a statement. Sasso will serve as president and CEO of the combined firm. 

Jim Burt, founder and managing partner of Jorden Burt, said of the merger: “Both firms waited a long time to make a move like this, and we feel quite confident that this is the right decision and the right time.”

This merger comes on the heels of another high-profile combination in 2012 between Tampa’s 23-attorney Williams Schifino Mangione & Steady, P.A., and Birmingham, Ala.-based Burr & Forman LLP. The combined firm, which now operates as Burr & Forman, has 55 attorneys across Florida and 277 overall across nine offices in five Southeastern states.

“Our entire firm is excited about the opportunities this combination provides us,” William J. Schifino Jr. said in a statement at the time of the merger. Schifino, who is a former Hillsborough County Bar Association president, now serves as Burr & Forman’s Tampa office managing partner. “After discussions with our clients, we determined that they would best be served if we joined forces with a Southeastern powerhouse that offers full-service legal support with a wider geographic market presence,” Schifino said.

No one can say for sure whether the surge of merger activity will continue at its current pace, but close observers say it is likely the legal markets in Tampa and Florida will remain attractive to out-of-state firms looking to grow as the economy improves. In any case, it should be interesting to see what deals transpire.

See you around the Chet.

Wednesday, March 5, 2014

Editor's Message: The Balancing Act Of Work And Life

By Rena Upshaw-Frazier

The members of the Hillsborough County Bar Association Young Lawyers Division recently tackled a topic that seems to be on the minds of many who work in the legal profession. Balance. I am not referring to whether one can teeter on a single toe for an extended amount of time in a yoga session, though I am sure many have listed that as a goal as well. I am referring to the undefined, ever-changing concept of work-life balance.

Lately, it has been the prevalent topic of many discussions. Does it exist? Is it relevant? Is it achievable? How? Is it worth it? Though the topic seems to be of greatest interest to working women with children, its reach is unlimited. It has drawn attention from all genders, generations, professions, and walks of life.

Understandably, there is a particular interest in this discussion among those in the legal field. A demanding career and schedule are fertile grounds for making “balance” important, yet elusive. Discussions center on the attorney’s unique struggle with meeting billable hours, satisfying client needs, developing business, and providing a service to the community, all while spending quality time with family, keeping in touch with friends, and pursuing personal interests. Portable computers, cellphones, and electronic data ― which provide 24-hour access to lines of communication and information ― have erased the division between work and home. As the proverbial “leaving work at work” diminishes, the question of how to balance it all becomes more pressing.

In response to the significant interest and demand, informative sources have exploded with advice on how to achieve balance. Books and articles have been dedicated to the topic. Sheryl Sandberg famously wrote about “leaning in,” which has led to a great deal of debates and responses, including a noteworthy amount of criticism. Seminars geared toward professionals often offer sessions on achieving balance. As previously mentioned, the attendees at the HCBA YLD’s recent quarterly luncheon discussed how to balance family life with a busy work schedule. The members received words of wisdom and key advice from their speaker, a local attorney.

The interest in and discussion about work-life balance is unlikely to subside any time soon. It is increasing awareness about the needs of those who provide legal services and their engagement and satisfaction within the profession. Although there is a very personal component to work-life balance ― it means something different to each person, and it may change at different stages in that person’s life ― the advice shared among the legal community is invaluable in assisting and informing fellow colleagues. To progress as a profession, we have to address and tackle issues important to the membership. The HCBA does just that. Enjoy the publication!

Monday, March 3, 2014

Veterans Court

By Mark Ober, State Attorney for the Thirteenth Judicial Circuit

It is estimated that Florida is home to more than 1.5 million veterans, according to the National Center for Veterans Analysis and Statistics. Our community is fortunate to be home to many of these veterans. Unfortunately, there are times when we have veterans charged with committing criminal acts. In some of these circumstances, the veteran suffers from a military service-related mental illness, traumatic brain injury, substance abuse disorder, or psychological problems. These problems may have played a role in the criminal act itself or may impair the veteran’s ability to comply with court-ordered sanctions. 

The Florida Legislature has recognized that an appropriate manner for handling some of these criminal cases is through the creation of veterans court programs. Florida Statute § 948.16 authorizes circuit courts to create misdemeanor pretrial veterans’ treatment intervention programs. Fla. Stat. § 948.16(2), 2013. These programs are to be modeled on therapeutic jurisprudence principles, similar to drug court programs. Id. The program may include sanctions for noncompliance. Id. If the defendant successfully completes the program, the court dismisses the criminal charges. Id.

On August 12 in Hillsborough County, the Misdemeanor Veterans Treatment Court (Veterans Court) was created by Administrative Order S-2013-054. Veterans Court is designed to work with veterans who suffer from a military service-related mental illness, traumatic brain injury, substance abuse disorder, or other psychological problems. This court is a diversion program and is only available to veterans who have been charged with specified misdemeanor offenses. The veterans in the program are assisted in accessing the appropriate services available to them through the Veterans Administration (VA) or other community-based resources. Those services may include counseling, medical treatment, housing assistance, or education. The veteran may also be required to complete sanctions related to their criminal charge, such as the payment of restitution. Veterans are also paired with mentors who are themselves veterans. These mentors can provide support and guidance regarding challenges faced by former service members.

The defendant works with the VA to develop treatment goals; progress toward those goals is monitored during monthly court hearings. The services provided to the veteran by the VA are benefits that the veteran is entitled to due to his or her past military service. The ultimate goal of Veterans Court is to prevent these individuals from returning to the criminal justice system. 

As your state attorney, my goal is to keep our community safe. This is not always accomplished through punishment alone. In the case of certain veterans charged with criminal acts, the veteran may have already earned benefits that can help reduce recidivism. By helping the veteran access those benefits while holding them accountable for their actions, we can make our community safer and stronger.

Empowering The Electorate In Judicial Elections

By Susan Johnson-Velez

It seems like at most professional events I attend these days, I run into a friend or colleague who is campaigning for a judicial seat. As attorneys, most of us know what qualities we look for in a judge. And as active members of the local legal community, we oftentimes know the people who are running for these seats. So when election season is upon us, our non-attorney friends and neighbors tend to call on us for advice on who should get their vote.

The question is an honest one, and it may be tempting to just recommend the candidate you know the best. However, I encourage you to turn this question into a teaching moment. Although the executive and legislative branches of government tend to grab the spotlight when it comes to elections, the judiciary is just as important. (I know I’m preaching to the choir here.) Yet, voters more often skip over those sections of the ballot or just vote for whatever name they recognize. 

We have the opportunity to change that. The Florida Bar has put together a valuable program called Benchmarks: Raising the Bar on Civics Education. The program provides attorneys with educational materials they can easily present to community groups such as PTAs, homeowners associations, and church groups. The topics vary, but all focus on increasing knowledge on the fundamentals of government and the courts. One particular presentation even teaches voters “How to Judge Judicial Candidates.”

The Benchmarks presentations include PowerPoints and activities to help you engage your audience and make the lessons fun. Plus, attorneys can earn 1 CLE ethics credit per presentation, with a maximum of 3 credits per period.

Beyond the judicial elections, the Benchmarks program also offers presentations on who has the right to vote, what the laws actually mean, how to amend the state constitution, and whether average Americans could pass the U.S. citizenship test. (I challenge you to try to answer some of those questions.)

In addition to the resources provided by Benchmarks, the Hillsborough County Bar Association is also making an effort to educate voters this year. Later in the spring, the HCBA will conduct a judicial preference poll of attorneys in Hillsborough County to gather their thoughts on candidates.

The results will be released to the public and the media, with the goal of helping voters make informed decisions at the polls. So feel free to share those results, too, when your neighbor asks for your opinion.

We are so fortunate to live in a country where every vote counts. I hope that this election season, you empower those around you to weigh the facts and render an educated verdict.

Saturday, March 1, 2014

Author Gilbert King Discusses “Devil in the Grove: Thurgood Marshall, the Groveland Boys and the Dawn of a New America”

By John F. Kynes, Executive Director of the Hillsborough County Bar Association

An accusation of rape by a young white woman. A racist Southern sheriff. Four black men hauled to jail. Violence and the threat of lynchings by the Ku Klux Klan. Coerced confessions.  A rigged jury and a sham trial. A guilty verdict calling for the electric chair.

The storyline of John Grisham’s latest novel? In this case, tragically not.

It describes a sad but true episode in Florida’s history involving a horrific case of racial injustice. The story is outlined in meticulous detail by author Gilbert King in his book “Devil in the Grove: Thurgood Marshall, the Groveland Boys and the Dawn of a New America,” for which King was awarded the 2013 Pulitzer Prize for general nonfiction.

King discussed his book and answered questions from audience members at a luncheon and special CLE at the Chester H. Ferguson Law Center in February. The author came to Tampa from New York City at the invitation of Hillsborough County Bar President Susan Johnson-Velez and the HCBA’s Diversity Committee.

King said one of the motivations in writing the book was to help young people understand the Jim Crow era right after World War II and before the civil rights movement. Most young people aren’t aware of the level of oppression and “state-sanctioned white supremacy” that existed, King said.

The Groveland case itself and the stunning series of events surrounding it were set into motion in July 1949 when four young black men were accused of raping 17-year-old Norma Lee Padgett of Groveland, Fla., located in the heart of citrus country in Lake County. Three of the “Groveland Boys” ― Sam Shepherd, Walter Irvin and 16-year-old Charles Greenlee ― were apprehended and thrown in jail. A fourth, Ernest Thomas, fled and avoided arrest for several days until he was hunted down by a sheriff’s posse of 1,000 armed men and killed about 200 miles northwest in a chase through the swamps of Lake County.

The KKK quickly gathered and went to the jail. The angry mob threatened violence and called for the lynching of the accused men. After retreating, they took their anger out by burning homes in the black section of Groveland. National Guard troops were called in to restore order. 

Sheriff Willis McCall ― who reigned over Lake County with an iron fist ― and his deputies then systematically tortured the three remaining Groveland Boys to secure confessions. Only one, Irvin, refused to confess.
Meantime, national press accounts of the case and the intense local violence helped get the attention of Thurgood Marshall, who was then special counsel at the National Association for the Advancement of Colored People. In his luncheon remarks, King said that by the late 1940s, Marshall, the future U.S. Supreme Court justice, had already helped cement his reputation as “Mr. Civil Rights” after logging many thousands of miles travelling by train to appear in Southern courtrooms.

The original trial was “basically a travesty,” King said, based in part on the lack of medical evidence presented, and that jurors were handpicked by the prosecution. The defendants, Shepherd and Irvin, were sentenced to death. Greenlee, because of his age, was sentenced to life in jail.

In 1951, after appeal, the U.S. Supreme Court overturned the verdict on grounds that blacks had been improperly excluded from the jury. Then a stunning turn of events occurred.

Sheriff McCall was transporting Shepherd and Irvin by himself in his vehicle for the retrial. He pulled off on a secluded road, claiming his vehicle was having tire trouble, and then proceeded to shoot the defendants, who were handcuffed together.

McCall, in a deposition afterward, said the prisoners tried to escape, and he had no choice but to shoot them both. One prisoner, Shepherd, died at the scene. The other, Irvin, played dead but survived.

The next day, Irvin shockingly recounted to FBI investigators in his hospital room that Sheriff McCall had shot them both without provocation. And, he continued, one of McCall’s deputies who had come to the scene had shot Irvin while he was on the ground after noticing he was still alive.

In the retrial in Marion County, Marshall personally represented Irvin, but the jury again found Irvin guilty. After appeal, the U.S. Supreme Court ultimately declined to hear the case.

The author also discussed the immense pressure after the trial in 1955 on newly elected Florida Governor LeRoy Collins to commute Irvin’s sentence to life in prison.

Spoiler alert: Collins did.

In announcing his decision, Governor Collins said, “The state did not walk that extra mile — did not establish the guilt of Walter Lee Irvin in an absolute and conclusive manner.”

King, in his luncheon remarks, also read a passage from his book about Marshall’s towering influence: “Southern juries might be stacked again blacks, and the judges might be biased, but Thurgood Marshall was demonstrating in case after case that their work was not the last, that in the U.S. Supreme Court the injustice in their decisions and verdicts could be reversed. … No wonder that across the South, in their darkest, most demoralizing hours, when falsely accused men sat in jails, when women and children stood before the ashy ruin of mob-torched home, the spirits of black citizens would be lifted with two words whispered in defiance and hope: ‘Thurgood’s coming.’”

Retention And Promotion Of Female Attorneys – What Can We Do Better?

By Amanda B. Buffinton and Meredith A. Freeman

In February, the National Association of Women Lawyers issued its “Report of the Eighth Annual NAWL National Survey on Retention and Promotion of Women in Law Firms.” The survey polled 200 large law firms regarding the progress of female attorneys compared with their male counterparts. Survey at p. 1. The results demonstrate that despite the high number of female law school graduates for the past few decades, women are still not strongly represented in the highest ranks of law firms. Id. at p. 4. Law firms reported the “perceived lack of business development and high rate of attrition as the two primary reasons why the number of women equity partners has not been increasing.” Id. at p. 5. 

Certainly, female attorneys do not leave the practice of law more often than men simply because they do not like to practice law. Additionally, female attorneys have the same ability to generate business as male attorneys.  Therefore, law firms need to understand and combat attrition and lack of business development by female attorneys. As a starting point, it can be assumed that law firms will continue to hire female attorneys as associates.  In fact, the 2010-2011 data from the Directory of Legal Employers Diversity and Demographics Report of the National Association of Legal Placement revealed that approximately 43 percent of law firm associates were women.   

Assuming this trend of hiring continues, the focus turns to retention and promotion.  What can law firms do better to retain female attorneys and give them a seat at the boardroom table? 

First, law firm leaders need to fully embrace the proven premise that including female attorneys in firms and treating them fairly is a profitable business model. Attrition can be a large cost to law firms. However, according to Gerry Riskin, founder of law firm consultancy Edge International, “Most firms are oblivious” to attrition costs, and although “that expense is unacceptable, [law firms] have been accepting it.” 

Second, law firms need to ensure that their method of evaluating business development by attorneys fairly credits both the attorney who brought the work to the firm and the attorney who manages the client relationship, which ensures that future business continues to flow in.

Third, firms should develop methods to track work assignments to ensure that women have the same opportunities to participate in significant, high-revenue matters as male attorneys. 

Finally, promoting female attorneys to equity partnership and opening doors that allow women to participate in law firm governance provide women a greater incentive to stay in practice and serve as an example to younger female attorneys who are trying to climb the ranks.