By Thomas (T.J.) Ferrante
The environment for providing health care services is becoming increasingly complex and competitive. Before entering into any arrangement for marketing, advertising, or similar communications services, health care providers should carefully consider how the arrangement must be structured to avoid running afoul of applicable laws. Although the facts and circumstances of each particular marketing arrangement require thoughtful review, the following general guidance will assist providers in structuring marketing arrangements in a manner that complies with the applicable legal framework:
• Providers should structure marketing arrangements to meet safe harbors under the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b, such as the employment or personal services and management contracts safe harbors.
• If a marketing arrangement appears to implicate the Stark Law, 42 U.S.C. § 1395nn, providers should structure the arrangement to meet an exception under the Stark Law, such as the employment relationship exception, personal services arrangements exception, or nonmonetary compensation exception. (For example, if the real purpose of a hospital advertisement is to reward the physicians or drive services to the physician's practice, and not to show off the hospital's services, then the physician should bear a proportional percentage of the cost of the advertising.)
• Providers should not appear to endorse certain health care products or services in order to avoid “white coat” marketing.
• Payments for services rendered under a marketing arrangement should be for fair market value. Providers should document the fair market value determination, as well as the performance of the services rendered.
• Payments under a marketing arrangement should not include commissions or compensation that reflect the generation of business by the health care provider. Instead, a time-based marketing fee, such as an hourly or annual fee, that is owed by the practice regardless of any increase in patient flow is recommended.
• Providers should not provide gifts to potential referral sources. The government has long taken the position that, generally, free gifts to beneficiaries violate the Anti-Kickback Statute because such gifts may induce beneficiaries to purchase additional or unnecessary items or services.
• Providers should structure their marketing activity so as not to be interpreted as offering or paying “remuneration” to Medicare or Medicaid beneficiaries in an effort to influence the beneficiaries’ choice in selecting health care providers.
• Providers should tailor their marketing services to conform to the requirements of the HIPAA privacy regulations. In particular, where protected health information is to be used as part of a marketing activity, health care providers should ensure that adequate individual authorization has been obtained or, if not, that the activity is exempt from the provisions concerning marketing.
As market forces such as reimbursement cuts, caps, and other CMS initiatives continue to put financial pressure on health care providers, it is important for the health care provider to be creative and innovative in marketing to consumers and other referral sources. However, what are common marketing practices in other industries may pose significant risks in the health care industry. Therefore, to avoid governmental scrutiny, it is crucial that all marketing programs and business arrangements be established and implemented properly.
Wednesday, July 30, 2014
Monday, July 28, 2014
The Importance Of Cross-Cultural Competence
By Dawn Siler-Nixon
Cultural competency is the ability to adapt, work, and manage successfully in new and unfamiliar cultural settings. Culturally competent people can "grasp, reason, and behave effectively" when faced with culturally diverse situations where assumptions, values, and traditions differ from those to which they are accustomed. They recognize that culture may impact the way people from different backgrounds perceive the same facts. When several competing interpretations of a situation may be valid, they can place apparent contradictions in cultural contexts and deal with the ambiguity.
Being culturally competent does not mean fully understanding the cultural norms and dynamics of every person with whom a lawyer interacts. It also isn’t about adopting a particular set of beliefs or learning a language. Rather, cultural competence is a way of approaching any new and different cultural situation. People who are culturally competent are aware of their own cultural backgrounds; they also recognize that culture influences behaviors, thoughts, ways of communicating, values, traditions, and institutions. Culturally competent professionals know that the choices people make are powerfully affected by culture and that every person is subject to many cultural influences.
American diversity programming deals with cultural differences, but the focus is on diversity within the context of American culture. Cultural competence places diversity in a global framework. It involves the ability to function in settings where American values and norms do not prevail, and it refers to the ability to navigate through a strange environment when you are the cultural outsider.
Improving cultural competence is one key to greater profitability. In a survey of 450 managers in multinational companies, effective management of cultural diversity in a global setting was highly correlated with financial success as measured by profit per employee. In companies with proficient cross-cultural management, the survey found that foreign office profits increased through higher productivity, more cross-selling, client expansion, work referrals from other offices, and leveraging of global resources.
Given the increasing global focus of our legal profession to meet the increasing needs and demands of our clients, focusing on cultural competency is critical. It will be important to understanding not only how our own culture impacts on our interactions but how we can utilize our knowledge of another’s culture to influence business outcomes, i.e., negotiations, depositions, trials, etc.
An initial step toward cultural competence involves what Vernā Myers, principal of Vernā Myers Consulting Group, LLC, a nationally recognized expert, calls learning the B-A-S-I-C-S. Do not assume you understand an individual’s culture or withdraw from racial and ethnic differences or try to avoid them because you are unsure what is expected. Instead, “B – Breathe: Suspend all judgments; A – Assumptions: Question your assumptions; S – Self-Awareness: Stay self-aware about what you are bringing to the dynamic; I – Information: Get information before making conclusions or deciding next steps; C – Culture: Accept that all cultures are equally valid; S – Steps: Take steps toward the person or interaction rather than away from the situation.” Cultural competence is a journey, not a destination. I hope you join me on that path.
Cultural competency is the ability to adapt, work, and manage successfully in new and unfamiliar cultural settings. Culturally competent people can "grasp, reason, and behave effectively" when faced with culturally diverse situations where assumptions, values, and traditions differ from those to which they are accustomed. They recognize that culture may impact the way people from different backgrounds perceive the same facts. When several competing interpretations of a situation may be valid, they can place apparent contradictions in cultural contexts and deal with the ambiguity.
Being culturally competent does not mean fully understanding the cultural norms and dynamics of every person with whom a lawyer interacts. It also isn’t about adopting a particular set of beliefs or learning a language. Rather, cultural competence is a way of approaching any new and different cultural situation. People who are culturally competent are aware of their own cultural backgrounds; they also recognize that culture influences behaviors, thoughts, ways of communicating, values, traditions, and institutions. Culturally competent professionals know that the choices people make are powerfully affected by culture and that every person is subject to many cultural influences.
American diversity programming deals with cultural differences, but the focus is on diversity within the context of American culture. Cultural competence places diversity in a global framework. It involves the ability to function in settings where American values and norms do not prevail, and it refers to the ability to navigate through a strange environment when you are the cultural outsider.
Improving cultural competence is one key to greater profitability. In a survey of 450 managers in multinational companies, effective management of cultural diversity in a global setting was highly correlated with financial success as measured by profit per employee. In companies with proficient cross-cultural management, the survey found that foreign office profits increased through higher productivity, more cross-selling, client expansion, work referrals from other offices, and leveraging of global resources.
Given the increasing global focus of our legal profession to meet the increasing needs and demands of our clients, focusing on cultural competency is critical. It will be important to understanding not only how our own culture impacts on our interactions but how we can utilize our knowledge of another’s culture to influence business outcomes, i.e., negotiations, depositions, trials, etc.
An initial step toward cultural competence involves what Vernā Myers, principal of Vernā Myers Consulting Group, LLC, a nationally recognized expert, calls learning the B-A-S-I-C-S. Do not assume you understand an individual’s culture or withdraw from racial and ethnic differences or try to avoid them because you are unsure what is expected. Instead, “B – Breathe: Suspend all judgments; A – Assumptions: Question your assumptions; S – Self-Awareness: Stay self-aware about what you are bringing to the dynamic; I – Information: Get information before making conclusions or deciding next steps; C – Culture: Accept that all cultures are equally valid; S – Steps: Take steps toward the person or interaction rather than away from the situation.” Cultural competence is a journey, not a destination. I hope you join me on that path.
Tuesday, July 22, 2014
Corporate Counsel: Florida Considers Enabling Benefit Corporations
By Clara Arrington
A benefit corporation is a for-profit entity that is operated to produce a public benefit in addition to a profit. The corporation’s board is required to balance stockholders’ interests, the best interests of those materially affected by the corporation, and the public benefit(s) identified in the certificate of incorporation. The idea was originated by the “B Lab,” a 501(c)3 that drafted a model benefit corporation statute and lobbies for its enactment. The statute requires a benefit corporation to report how it furthers the stated benefit and how shareholders are able to hold the corporation accountable for failure to pursue that benefit. Twenty states have now adopted this legislation. Even Delaware has adopted a variation of the benefit corporation statute provided by B Lab. Currently, there are bills in the Florida House and Senate that would bring benefit corporations to Florida. FL Senate Bill 654 and House Bill 685.
Proponents of the benefit corporation argue that the existing legal framework does not accommodate a for-profit company that desires to benefit society. Dodge v. Ford, 170 N.W. 668 (Mich. 1919), is cited as proof that corporations cannot “do good” because they are forced to pursue shareholder wealth maximization in myopic fashion. The court specifically stated that “[t]he discretion of directors is to be exercised in the choice of means to attain [profits for the stockholders], and does not extend to a change in the end itself, reduction of profits, or the non-distribution of profits among stockholders.” Given this holding, it is argued that the only way to break the stranglehold of Dodge v. Ford is through the benefit corporation.
Although this may be true in some states, Florida, unlike Delaware, already has legislation that allows corporations to consider and pursue public benefits. Florida Statute 607.0830(3) allows directors to “consider such factors … including the long-term prospects and interests of the corporation and its shareholders, and the social, economic, legal, or other effects of any action on the employees, suppliers, customers of the corporation or its subsidiaries, the communities and society in which the corporation or its subsidiaries operate.” In Kloha v. Duda, 246 F. Supp. 2d 1237, M.D. Fla., the directors of a Florida corporation exercised their business judgment in deciding to sell certain assets instead of closing an unprofitable branch of the business. The court protected the directors from liability under the statute because the directors stated they continued to run the unprofitable branch to ensure employment for family members.
Proponents of benefit corporations note that Florida’s present statute allows directors to take these considerations into account, but the new statute would require directors to balance these things against the single-minded pursuit of profit. This distinction may not have much meaning given that corporations that don’t want to “do good” will not become benefit corporations and will not be affected by the mandatory language of that statute. Whereas, companies that do want to “do good” are currently able to do just that in Florida.
A benefit corporation is a for-profit entity that is operated to produce a public benefit in addition to a profit. The corporation’s board is required to balance stockholders’ interests, the best interests of those materially affected by the corporation, and the public benefit(s) identified in the certificate of incorporation. The idea was originated by the “B Lab,” a 501(c)3 that drafted a model benefit corporation statute and lobbies for its enactment. The statute requires a benefit corporation to report how it furthers the stated benefit and how shareholders are able to hold the corporation accountable for failure to pursue that benefit. Twenty states have now adopted this legislation. Even Delaware has adopted a variation of the benefit corporation statute provided by B Lab. Currently, there are bills in the Florida House and Senate that would bring benefit corporations to Florida. FL Senate Bill 654 and House Bill 685.
Proponents of the benefit corporation argue that the existing legal framework does not accommodate a for-profit company that desires to benefit society. Dodge v. Ford, 170 N.W. 668 (Mich. 1919), is cited as proof that corporations cannot “do good” because they are forced to pursue shareholder wealth maximization in myopic fashion. The court specifically stated that “[t]he discretion of directors is to be exercised in the choice of means to attain [profits for the stockholders], and does not extend to a change in the end itself, reduction of profits, or the non-distribution of profits among stockholders.” Given this holding, it is argued that the only way to break the stranglehold of Dodge v. Ford is through the benefit corporation.
Although this may be true in some states, Florida, unlike Delaware, already has legislation that allows corporations to consider and pursue public benefits. Florida Statute 607.0830(3) allows directors to “consider such factors … including the long-term prospects and interests of the corporation and its shareholders, and the social, economic, legal, or other effects of any action on the employees, suppliers, customers of the corporation or its subsidiaries, the communities and society in which the corporation or its subsidiaries operate.” In Kloha v. Duda, 246 F. Supp. 2d 1237, M.D. Fla., the directors of a Florida corporation exercised their business judgment in deciding to sell certain assets instead of closing an unprofitable branch of the business. The court protected the directors from liability under the statute because the directors stated they continued to run the unprofitable branch to ensure employment for family members.
Proponents of benefit corporations note that Florida’s present statute allows directors to take these considerations into account, but the new statute would require directors to balance these things against the single-minded pursuit of profit. This distinction may not have much meaning given that corporations that don’t want to “do good” will not become benefit corporations and will not be affected by the mandatory language of that statute. Whereas, companies that do want to “do good” are currently able to do just that in Florida.
Thursday, July 17, 2014
We Can Be Friends, Just Not On Facebook
By Kristen A. Foltz
Many practitioners use social media for advertising and to grow their practice. Unfortunately, there are some instances where being friends with someone on Facebook could have a detrimental effect on business. One such scenario involves being friends with members of the judiciary on Facebook. Most attorneys are aware of rules regarding ex parte communication with jurors (see Florida Rule of Professional Conduct 4-3.5(d)), but what about a judge? What happens if you went to law school with someone who is now a judge? What if he or she is a personal friend of yours? Can you be Facebook friends or connect via other electronic social media (ESM)? A recent case in Florida has been getting attention regarding this issue and suggests that judges may be better off being friendless (at least on Facebook).
In January, the Fifth District Court of Appeal evaluated a case where a woman sought to overturn the lower court’s ruling that denied her motion to disqualify the judge in her divorce case. Chace v. Loisel, 39 Fla. L. Weekly D 221, (Fla. 5th DCA Jan. 24, 2014). Prior to entry of final judgment in her divorce case, the petitioner, Sandra Chace, received a friend request from the presiding judge. She declined the friend request, and when final judgment was entered, Chace claimed she received most of the marital debt and the judge awarded her ex a large alimony award. Chace filed a motion to disqualify the judge as she felt the judge retaliated against her for denying the request. This motion to disqualify was ultimately denied. When she appealed the ruling, the Fifth District quashed the order denying Chace’s motion to disqualify, stating, “Petitioner has alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Id.
The American Bar Association stated in its Formal Opinion 462, “All of a judge’s social contacts, however made and in whatever context, including ESM, are governed by the requirement that judges must at all times act in a manner ‘that promotes public confidence in the independence, integrity, and impartiality of the judiciary,’ and must ‘avoid impropriety and the appearance of impropriety.’” ABA Formal Opinion 462, Judge’s Use of Electronic Social Networking Media, (Feb. 21, 2013). In relying on the Model Code of Judicial Conduct, the ABA concludes, “[W]hile sharing comments, photographs, and other information, a judge must keep in mind the requirements of Rule 1.2 that call upon the judge to act in a manner that promotes public confidence in the judiciary.” Id.
This case reveals some of the potential issues that can arise out of ESM. Although it only discusses Facebook, people should be aware of the application to other ESM sites (e.g. Twitter, Instagram, etc.). It is a fine line to determine what could be perceived by another as improper. It may be a best practice to not risk putting a judge in a bad position by trying to avoid any appearance of impartiality, even if that means missing their next selfie or posting about what they ate for breakfast.
Many practitioners use social media for advertising and to grow their practice. Unfortunately, there are some instances where being friends with someone on Facebook could have a detrimental effect on business. One such scenario involves being friends with members of the judiciary on Facebook. Most attorneys are aware of rules regarding ex parte communication with jurors (see Florida Rule of Professional Conduct 4-3.5(d)), but what about a judge? What happens if you went to law school with someone who is now a judge? What if he or she is a personal friend of yours? Can you be Facebook friends or connect via other electronic social media (ESM)? A recent case in Florida has been getting attention regarding this issue and suggests that judges may be better off being friendless (at least on Facebook).
In January, the Fifth District Court of Appeal evaluated a case where a woman sought to overturn the lower court’s ruling that denied her motion to disqualify the judge in her divorce case. Chace v. Loisel, 39 Fla. L. Weekly D 221, (Fla. 5th DCA Jan. 24, 2014). Prior to entry of final judgment in her divorce case, the petitioner, Sandra Chace, received a friend request from the presiding judge. She declined the friend request, and when final judgment was entered, Chace claimed she received most of the marital debt and the judge awarded her ex a large alimony award. Chace filed a motion to disqualify the judge as she felt the judge retaliated against her for denying the request. This motion to disqualify was ultimately denied. When she appealed the ruling, the Fifth District quashed the order denying Chace’s motion to disqualify, stating, “Petitioner has alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Id.
The American Bar Association stated in its Formal Opinion 462, “All of a judge’s social contacts, however made and in whatever context, including ESM, are governed by the requirement that judges must at all times act in a manner ‘that promotes public confidence in the independence, integrity, and impartiality of the judiciary,’ and must ‘avoid impropriety and the appearance of impropriety.’” ABA Formal Opinion 462, Judge’s Use of Electronic Social Networking Media, (Feb. 21, 2013). In relying on the Model Code of Judicial Conduct, the ABA concludes, “[W]hile sharing comments, photographs, and other information, a judge must keep in mind the requirements of Rule 1.2 that call upon the judge to act in a manner that promotes public confidence in the judiciary.” Id.
This case reveals some of the potential issues that can arise out of ESM. Although it only discusses Facebook, people should be aware of the application to other ESM sites (e.g. Twitter, Instagram, etc.). It is a fine line to determine what could be perceived by another as improper. It may be a best practice to not risk putting a judge in a bad position by trying to avoid any appearance of impartiality, even if that means missing their next selfie or posting about what they ate for breakfast.
Friday, July 11, 2014
Judge Kovachevich: Off the Record
By Michael S. Hooker
The following is an edited excerpt of an interview with the Hon. Elizabeth A. Kovachevich, United States District Court Middle District of Florida, Tampa Division, conducted by Michael S. Hooker.
Q. Judge, I understand that you are a native of Illinois. How did you end up in Florida?
A. On my 13th birthday in 1949, December 14, my family moved to Florida because my father had pneumonia two winters’ previously and his good friend, a doctor, told him he would never survive another winter in Illinois. So, a big decision: The family moved to Florida in 1949.
Q. I understand that when you were growing up, your family had some involvement in the theater business. Is that right?
A. That’s correct. My grandfather, my mother’s father, was a coal miner, as was my other grandfather. My mother’s father saved up his money, and he was able to get into the saloon business. He got a franchise for Schlitz beer, and he went from that. He saved his money, and this was at a time when silent movies were just the “in thing” for people for entertainment. He had an opportunity to get into that, to get money from the bank because he had a good reputation for having developed into a good businessman. He bought a theater that had been used as an opera theater and had 1,700 seats, and he started putting in talking movies. To run the business ― to show you the confidence that the father had in the daughter, his oldest child ― my mother quit school in the ninth grade and went in and managed the theater. She had two brothers, but her father said, “No, they don’t know what they’re doing; you do.” She managed that theater for 36 years.
Q. Did you ever work there?
A. I worked there after school. I was taking tickets, ushering, up in the projection room, repairing the film, lining up and organizing the film to take to the railway station. I’d go with my uncle who would drive the car, but I’m making sure that it was all organized. I would bring my school books to the theater, and I’d be working there at night doing my homework.
Q. Are you still a fan of classic cinema today?
A. Well, let us just say, the classic cinema, yes. Turner Classic Movies, yes. Some of this other now, no.
Q. I know you had a very stellar academic career. You went to St. Petersburg Junior College, and you graduated very high in your class as well at the University of Miami.
A. Right. Well, I was fortunate to go to St. Paul’s High School in St. Petersburg where the nuns, who came from Allegheny, New York, brought with them the New York State Board of Regents exams. This is important because New York state, at that time ― this was in the 1950s ― was the best school system in the United States, and here we are, kids at this little high school in St. Petersburg, Florida, getting these New York state exams! Those were the exams that we took. We even had students who came from Tampa to go to St. Paul’s school. When I graduated valedictorian from high school, I went to St. Petersburg Junior College to save my money to go to the University of Miami. I graduated valedictorian from St. Petersburg J.C. and went down to Miami, and I graduated first in my class of business administration. There were about 224 students in that class. I attribute all of my success to the foundation that I got from those nuns and taking those exams. When we started college, all of us, we were about a year ahead of everybody else.
Q. You then went to Stetson College of Law, and you graduated in 1961?
A. Yes, I tied for second in the class, and then I worked for two people: John DiVito, who became the attorney for the Catholic Diocese of St. Petersburg, and, for Roy Speer, who was one of the two people who founded Home Shopping Network.
Q. You were in private practice for about 12 years?
A. Eleven or 12 years, something like that.
Q. Do any of the cases that you handled as a private practitioner stand out?
A. Well, there’s one that has to. That was the General Motors case. It brought national attention here to Clearwater, Florida, because Bob Nunez, who was a former assistant United States attorney and was in private practice, was the main attorney in that case. I was co-counsel. It was really an enormous experience. It was the biggest trial that had been held in this area at that time.
Q. And what was the subject matter of that trial?
A. It was the Corvair vehicle. … General Motors was sued for the design of the Corvair, and the Firestone tire company was sued for its product performance, and it was a mammoth trial.
Q. Wasn’t that at the time of the “Unsafe at Any Speed” allegations by Ralph Nader?
A. That’s correct. After a six-week jury trial and a deliberation, there was a defense verdict for General Motors.
Q. I understand that you were elected to the Sixth Judicial Circuit in 1972 and that you were the first female judge in that circuit?
A. First in that circuit, and to my knowledge, the first in this area because I’ve discussed this with Judge Bucklew – she was appointed in 1982, and she was the first in her circuit.
Q. Were there any barriers to entry into the judiciary back then?
A. Well, I had been a member of the St. Petersburg Bar Association for all those years and had become secretary of the St. Pete Bar, and when the opportunity for the judgeship came ― this was a brand new judgeship ― there were people that were highly supportive of me that wanted me to run for elective office, and I said if I do anything it would be for a judgeship ― something to which I had never, ever aspired. I didn’t consider myself, being honest with you, worthy to be able to offer myself for something like that. But people encouraged me, and I thought, well if you really want me to do it, I will do it, and it was a hard-fought campaign. I’ll be honest with you, the lawyers did not want a woman judge. And it was a little difficult.
Q. You’ve been on the bench for over 40 years?
A. Yes.
Q. What in your view is the most important character trait for a judge?
A. Well, I think you have to be a little bit like an umpire who is there, doing the calls. It’s a very professional setting. Everybody’s professionally doing their job. You’ve got to be able to call the balls and strikes. Make the call and walk away tough. And I think that if you have an inability to do that, then you’re going to have a lot of trouble maintaining your stability in being a judge. Now, do I think that every call I’ve made is a perfect call in retrospect? I don’t know; other people would have to judge that. I gave it the best call I had at the time.
Q. When you sentence a criminal defendant, and someone’s liberty is at stake, can you talk a little about the deliberative process that you go through?
A. The deliberative process is the very last word that I hear in that courtroom because I don’t come in there with any preconceived notions about which way I’m going to rule. … You happened to mention criminal practice, I hear what the defense attorney has to say on behalf of the defendant. I hear the prosecutor. I get whatever comment I get from probation, and then the last word comes from the defense attorney. And it’s not until I get that last word at the time of the sentencing ― whatever it is that’s being presented to me ― do I make up my mind. There’s a pre-sentence report, the statements that come in from people, you may have victims in the case, you may have people who have something important to say, the defendant may write something, the defendant … may say something, or they may do both ― they may write and then they may say something. Not until I hear the last do I make up mind …
Q. Judge, currently our country is going through some tough economic times and has been for a few years now. How do you think that has impacted the practice of law?
A. Well, here again, when I started practicing law, the lawyer’s word was his bond. I mean, that’s it! You could call a lawyer up and say: “I’ve got this I’ve got to do. Can you give me some more time on this?” “Sure.” They’d make their own little notations; I’d make mine. You didn’t have to have a paper trail. But take the current practice. Even with the local practice, you have to have a paper trail to protect everybody, to make sure that people are being civil with one another. And do I see in the local practice people who are coming in front of me, things that I find disturbing! Some of the hearings that I have experienced are greatly disturbing to me! If you don’t think that judges don’t have a score card of the people who are “problem people,” you’re wrong.
Q. Judge, what do you think of the most recent standing orders that allow attorneys now to bring cellphones and other electronic devices into the federal courthouse here in Tampa?
A. I’m going along with it, the policy … and so long as we don’t have a problem with a jury. Do I think that there is harm that could come in a given case? Some of the cases that we had years ago where taking pictures of witnesses would have been a real problem. If you tried to slip witnesses or jurors out the back way, maybe you were protecting their identity, but there is certainly no way to protect the identity of people now. You may tell people “Don’t take a picture of somebody in the courtroom,” but who’s there to police that from happening, especially if they’re in the back section. That to me is of concern.
Q. I know you were instrumental in securing funding for new federal judgeships here in the Middle District of Florida, Tampa Division, a few years ago. Why was that so important to you?
A. At the time that I made a speech, I had just become the chief judge in 1996. I made it in front of the Federal Bar, and I told them that we were at 1,100 cases per judge, and we were going to go to 1,300 cases per judge. … I said, “Folks, we’ve gotta do something about this.” I went to Washington, D.C., to the Administrative Office of the U.S. Courts and the Chief Judges’ Conference. I had all of these stats, and we were going nowhere with getting any judgeships. It was everybody sitting there obediently waiting for something to happen. And I told them, I said, “I can’t wait. My district’s suffering, my judges are suffering, the practice is suffering, I’m telling you right now I’m breaking ranks, and I’m going after those judgeships.” And they laughed. Well, after we got going, the Tampa Federal Bar, Fort Myers Federal Bar ― and Jacksonville and Orlando Bars on board, Congressman Young, God bless him, he helped us ― we had a whole army of people go up, including judges; he introduced us to key people of the Appropriations Committee at the time, and the key people in the Senate and other contact persons. I had the backing of Connie Mack and Bob Graham, who were the senators at the time, and they said, “You know, this is going to be hard.” I said, “I know it. I’ve got an army coming with me. I’ve got squads of people.” We went up there, and we just, we just hit it hard. It wasn’t singularly me. I was just kind of like making sure everybody was in the right place at the right time. And we collectively got those four U.S. district judgeships for the Middle District of Florida.
Q. You started the internship program at Stetson College of Law at the federal courthouse. What was your objective when you decided to start that program?
A. Michael Trentalange, a Stetson student, took the initiative and applied, and he said, “I’d like to work, you know, free of charge as an intern for you.” And I’d never had an intern. My judicial assistant encouraged me to give him an opportunity. I said, “OK, we’ll give him a try.” So that’s how the program started. That was 1989 when Michael came, and we have had over 1,000 people come through that program, before I turned it over to Judge Porcelli. Other students came from Stetson and all over the country ― Florida, Miami, Notre Dame, Cornell, California, Vanderbilt, Virginia, and even from Harvard and Yale; you name it, they came from everywhere for the summer.
Q. Judge, back a few years ago, you were instrumental in bringing a stream of U.S. Supreme Court justices to Tampa to speak at the annual Federal Bar Association Dinner. How did you pull that off?
A. Well, in 1997, I was the chief judge and I had had contact previously with Justice Thomas, and he was kind enough when I contacted him to say “yes” he would come. We had the Red Mass, at Sacred Heart, in a rain storm; Thomas came sloshing down the road to get to the church to lead us in the oath, and then he gave the speech for 900 at the Tampa Convention Center. It was a glorious day for the legal profession and for the Federal Bar. Because of that, I was able to get Scalia to come the next year, in 1998, and then Rehnquist in 1999. They each gave Federal Bar speeches. Subsequently, when I was no longer a chief judge, I was able to communicate with Justice Alito, and he said he would come in 2004.
Q. Judge, final question. If you had it to do all over again, would you still chose to be a lawyer and later a judge?
A. Well, “the judge” was just an opportunity that came and people encouraged me. I would have been an attorney, and when I had my office, I specialized in anything that came through the door, A to Z. And I actually did everything. I did admiralty, bankruptcy to zoning, all the way across the spectrum. I did a whole bunch of different work, and I think that was good for me. And I think that helped prepare me to be a judge. But I never aspired to be a judge. It’s a great honor and a privilege to be a judge, and I never forget it. And I think about it every time I put on the robe. I never forget it. It’s a privilege to do this.
The following is an edited excerpt of an interview with the Hon. Elizabeth A. Kovachevich, United States District Court Middle District of Florida, Tampa Division, conducted by Michael S. Hooker.
Q. Judge, I understand that you are a native of Illinois. How did you end up in Florida?
A. On my 13th birthday in 1949, December 14, my family moved to Florida because my father had pneumonia two winters’ previously and his good friend, a doctor, told him he would never survive another winter in Illinois. So, a big decision: The family moved to Florida in 1949.
Q. I understand that when you were growing up, your family had some involvement in the theater business. Is that right?
A. That’s correct. My grandfather, my mother’s father, was a coal miner, as was my other grandfather. My mother’s father saved up his money, and he was able to get into the saloon business. He got a franchise for Schlitz beer, and he went from that. He saved his money, and this was at a time when silent movies were just the “in thing” for people for entertainment. He had an opportunity to get into that, to get money from the bank because he had a good reputation for having developed into a good businessman. He bought a theater that had been used as an opera theater and had 1,700 seats, and he started putting in talking movies. To run the business ― to show you the confidence that the father had in the daughter, his oldest child ― my mother quit school in the ninth grade and went in and managed the theater. She had two brothers, but her father said, “No, they don’t know what they’re doing; you do.” She managed that theater for 36 years.
Q. Did you ever work there?
A. I worked there after school. I was taking tickets, ushering, up in the projection room, repairing the film, lining up and organizing the film to take to the railway station. I’d go with my uncle who would drive the car, but I’m making sure that it was all organized. I would bring my school books to the theater, and I’d be working there at night doing my homework.
Q. Are you still a fan of classic cinema today?
A. Well, let us just say, the classic cinema, yes. Turner Classic Movies, yes. Some of this other now, no.
Q. I know you had a very stellar academic career. You went to St. Petersburg Junior College, and you graduated very high in your class as well at the University of Miami.
A. Right. Well, I was fortunate to go to St. Paul’s High School in St. Petersburg where the nuns, who came from Allegheny, New York, brought with them the New York State Board of Regents exams. This is important because New York state, at that time ― this was in the 1950s ― was the best school system in the United States, and here we are, kids at this little high school in St. Petersburg, Florida, getting these New York state exams! Those were the exams that we took. We even had students who came from Tampa to go to St. Paul’s school. When I graduated valedictorian from high school, I went to St. Petersburg Junior College to save my money to go to the University of Miami. I graduated valedictorian from St. Petersburg J.C. and went down to Miami, and I graduated first in my class of business administration. There were about 224 students in that class. I attribute all of my success to the foundation that I got from those nuns and taking those exams. When we started college, all of us, we were about a year ahead of everybody else.
Q. You then went to Stetson College of Law, and you graduated in 1961?
A. Yes, I tied for second in the class, and then I worked for two people: John DiVito, who became the attorney for the Catholic Diocese of St. Petersburg, and, for Roy Speer, who was one of the two people who founded Home Shopping Network.
Q. You were in private practice for about 12 years?
A. Eleven or 12 years, something like that.
Q. Do any of the cases that you handled as a private practitioner stand out?
A. Well, there’s one that has to. That was the General Motors case. It brought national attention here to Clearwater, Florida, because Bob Nunez, who was a former assistant United States attorney and was in private practice, was the main attorney in that case. I was co-counsel. It was really an enormous experience. It was the biggest trial that had been held in this area at that time.
Q. And what was the subject matter of that trial?
A. It was the Corvair vehicle. … General Motors was sued for the design of the Corvair, and the Firestone tire company was sued for its product performance, and it was a mammoth trial.
Q. Wasn’t that at the time of the “Unsafe at Any Speed” allegations by Ralph Nader?
A. That’s correct. After a six-week jury trial and a deliberation, there was a defense verdict for General Motors.
Q. I understand that you were elected to the Sixth Judicial Circuit in 1972 and that you were the first female judge in that circuit?
A. First in that circuit, and to my knowledge, the first in this area because I’ve discussed this with Judge Bucklew – she was appointed in 1982, and she was the first in her circuit.
Q. Were there any barriers to entry into the judiciary back then?
A. Well, I had been a member of the St. Petersburg Bar Association for all those years and had become secretary of the St. Pete Bar, and when the opportunity for the judgeship came ― this was a brand new judgeship ― there were people that were highly supportive of me that wanted me to run for elective office, and I said if I do anything it would be for a judgeship ― something to which I had never, ever aspired. I didn’t consider myself, being honest with you, worthy to be able to offer myself for something like that. But people encouraged me, and I thought, well if you really want me to do it, I will do it, and it was a hard-fought campaign. I’ll be honest with you, the lawyers did not want a woman judge. And it was a little difficult.
Q. You’ve been on the bench for over 40 years?
A. Yes.
Q. What in your view is the most important character trait for a judge?
A. Well, I think you have to be a little bit like an umpire who is there, doing the calls. It’s a very professional setting. Everybody’s professionally doing their job. You’ve got to be able to call the balls and strikes. Make the call and walk away tough. And I think that if you have an inability to do that, then you’re going to have a lot of trouble maintaining your stability in being a judge. Now, do I think that every call I’ve made is a perfect call in retrospect? I don’t know; other people would have to judge that. I gave it the best call I had at the time.
Q. When you sentence a criminal defendant, and someone’s liberty is at stake, can you talk a little about the deliberative process that you go through?
A. The deliberative process is the very last word that I hear in that courtroom because I don’t come in there with any preconceived notions about which way I’m going to rule. … You happened to mention criminal practice, I hear what the defense attorney has to say on behalf of the defendant. I hear the prosecutor. I get whatever comment I get from probation, and then the last word comes from the defense attorney. And it’s not until I get that last word at the time of the sentencing ― whatever it is that’s being presented to me ― do I make up my mind. There’s a pre-sentence report, the statements that come in from people, you may have victims in the case, you may have people who have something important to say, the defendant may write something, the defendant … may say something, or they may do both ― they may write and then they may say something. Not until I hear the last do I make up mind …
Q. Judge, currently our country is going through some tough economic times and has been for a few years now. How do you think that has impacted the practice of law?
A. Well, here again, when I started practicing law, the lawyer’s word was his bond. I mean, that’s it! You could call a lawyer up and say: “I’ve got this I’ve got to do. Can you give me some more time on this?” “Sure.” They’d make their own little notations; I’d make mine. You didn’t have to have a paper trail. But take the current practice. Even with the local practice, you have to have a paper trail to protect everybody, to make sure that people are being civil with one another. And do I see in the local practice people who are coming in front of me, things that I find disturbing! Some of the hearings that I have experienced are greatly disturbing to me! If you don’t think that judges don’t have a score card of the people who are “problem people,” you’re wrong.
Q. Judge, what do you think of the most recent standing orders that allow attorneys now to bring cellphones and other electronic devices into the federal courthouse here in Tampa?
A. I’m going along with it, the policy … and so long as we don’t have a problem with a jury. Do I think that there is harm that could come in a given case? Some of the cases that we had years ago where taking pictures of witnesses would have been a real problem. If you tried to slip witnesses or jurors out the back way, maybe you were protecting their identity, but there is certainly no way to protect the identity of people now. You may tell people “Don’t take a picture of somebody in the courtroom,” but who’s there to police that from happening, especially if they’re in the back section. That to me is of concern.
Q. I know you were instrumental in securing funding for new federal judgeships here in the Middle District of Florida, Tampa Division, a few years ago. Why was that so important to you?
A. At the time that I made a speech, I had just become the chief judge in 1996. I made it in front of the Federal Bar, and I told them that we were at 1,100 cases per judge, and we were going to go to 1,300 cases per judge. … I said, “Folks, we’ve gotta do something about this.” I went to Washington, D.C., to the Administrative Office of the U.S. Courts and the Chief Judges’ Conference. I had all of these stats, and we were going nowhere with getting any judgeships. It was everybody sitting there obediently waiting for something to happen. And I told them, I said, “I can’t wait. My district’s suffering, my judges are suffering, the practice is suffering, I’m telling you right now I’m breaking ranks, and I’m going after those judgeships.” And they laughed. Well, after we got going, the Tampa Federal Bar, Fort Myers Federal Bar ― and Jacksonville and Orlando Bars on board, Congressman Young, God bless him, he helped us ― we had a whole army of people go up, including judges; he introduced us to key people of the Appropriations Committee at the time, and the key people in the Senate and other contact persons. I had the backing of Connie Mack and Bob Graham, who were the senators at the time, and they said, “You know, this is going to be hard.” I said, “I know it. I’ve got an army coming with me. I’ve got squads of people.” We went up there, and we just, we just hit it hard. It wasn’t singularly me. I was just kind of like making sure everybody was in the right place at the right time. And we collectively got those four U.S. district judgeships for the Middle District of Florida.
Q. You started the internship program at Stetson College of Law at the federal courthouse. What was your objective when you decided to start that program?
A. Michael Trentalange, a Stetson student, took the initiative and applied, and he said, “I’d like to work, you know, free of charge as an intern for you.” And I’d never had an intern. My judicial assistant encouraged me to give him an opportunity. I said, “OK, we’ll give him a try.” So that’s how the program started. That was 1989 when Michael came, and we have had over 1,000 people come through that program, before I turned it over to Judge Porcelli. Other students came from Stetson and all over the country ― Florida, Miami, Notre Dame, Cornell, California, Vanderbilt, Virginia, and even from Harvard and Yale; you name it, they came from everywhere for the summer.
Q. Judge, back a few years ago, you were instrumental in bringing a stream of U.S. Supreme Court justices to Tampa to speak at the annual Federal Bar Association Dinner. How did you pull that off?
A. Well, in 1997, I was the chief judge and I had had contact previously with Justice Thomas, and he was kind enough when I contacted him to say “yes” he would come. We had the Red Mass, at Sacred Heart, in a rain storm; Thomas came sloshing down the road to get to the church to lead us in the oath, and then he gave the speech for 900 at the Tampa Convention Center. It was a glorious day for the legal profession and for the Federal Bar. Because of that, I was able to get Scalia to come the next year, in 1998, and then Rehnquist in 1999. They each gave Federal Bar speeches. Subsequently, when I was no longer a chief judge, I was able to communicate with Justice Alito, and he said he would come in 2004.
Q. Judge, final question. If you had it to do all over again, would you still chose to be a lawyer and later a judge?
A. Well, “the judge” was just an opportunity that came and people encouraged me. I would have been an attorney, and when I had my office, I specialized in anything that came through the door, A to Z. And I actually did everything. I did admiralty, bankruptcy to zoning, all the way across the spectrum. I did a whole bunch of different work, and I think that was good for me. And I think that helped prepare me to be a judge. But I never aspired to be a judge. It’s a great honor and a privilege to be a judge, and I never forget it. And I think about it every time I put on the robe. I never forget it. It’s a privilege to do this.
Tuesday, July 8, 2014
Appellate Practice: When Is It Too Late For The Tipsy Coachman?
By Michael R. Bray
In general, claims not raised in the trial court will not be considered on appeal. See Dade County School Board v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999). However, there are exceptions to this rule, one of which is known as the “tipsy coachman” doctrine. The tipsy coachman doctrine provides that when a trial court reaches the right result for the wrong reasons, that result will be upheld if there is any basis in the record to support it. Id. at 644-645.
Although the tipsy coachman doctrine is well established, courts are not in agreement on the deadline for invoking it. In some cases, courts have applied the tipsy coachman doctrine based on issues raised as late as on motion for rehearing, see, e.g., Jaworski v. State, 804 So. 2d 415 (Fla. 4th DCA 2001), while in other cases, issues raised for the first time at oral argument were held to be too late.
See, e.g., Powell v. State, 120 So. 3d. 577 (Fla. 1st DCA 2013); E.K. v. Dep’t of Children & Fam. Servs., 948 So. 2d 54 (Fla. 3d DCA 2007).
For example, in Jaworski v. State, when the appellee asserted a new ground for affirmance in a motion for rehearing, the Fourth District granted rehearing and affirmed the trial court’s decision based on that newly raised issue. Jawowski, at 419. The court explained that “[a]s an appellate court … we are obligated to entertain any basis to affirm the judgment under review, even one the appellee has failed to argue. … In other words, an affirmance is required if any theory, whether argued or not, would sustain the judgment.” Id.
In contrast, the First District in Powell v. State refused to apply the tipsy coachman doctrine after briefing had ended. Powell, at 593. In Powell, the appellee argued in its motion for rehearing that the court was required under the tipsy coachman doctrine to consider an issue that the appellee had raised for the first time at oral argument. Id. at 590. The court rejected that argument, reasoning that such a rule would unfairly limit appellants’ ability to respond to the newly raised issues, requiring appellants to use their last few minutes of oral argument to attempt to respond to those issues, rather than the issues that were actually briefed. Id. at 591. The court also noted that application of the tipsy coachman doctrine so late in an appeal would incentivize appellees to ambush appellants at oral argument with previously unraised issues. Id.
The diverging opinions as to the proper timing of appellees’ tipsy coachman arguments create a pitfall for attorneys. Practitioners should be aware of this uncertainty in the law and plan accordingly to ensure their arguments are heard. As the First District stated in Powell, “the tipsy coachman doctrine ‘does not rescue parties from their own inattention to important legal detail.’” Id. at 593, quoting E.K., 948 So. 2d at 57.
In general, claims not raised in the trial court will not be considered on appeal. See Dade County School Board v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999). However, there are exceptions to this rule, one of which is known as the “tipsy coachman” doctrine. The tipsy coachman doctrine provides that when a trial court reaches the right result for the wrong reasons, that result will be upheld if there is any basis in the record to support it. Id. at 644-645.
Although the tipsy coachman doctrine is well established, courts are not in agreement on the deadline for invoking it. In some cases, courts have applied the tipsy coachman doctrine based on issues raised as late as on motion for rehearing, see, e.g., Jaworski v. State, 804 So. 2d 415 (Fla. 4th DCA 2001), while in other cases, issues raised for the first time at oral argument were held to be too late.
See, e.g., Powell v. State, 120 So. 3d. 577 (Fla. 1st DCA 2013); E.K. v. Dep’t of Children & Fam. Servs., 948 So. 2d 54 (Fla. 3d DCA 2007).
For example, in Jaworski v. State, when the appellee asserted a new ground for affirmance in a motion for rehearing, the Fourth District granted rehearing and affirmed the trial court’s decision based on that newly raised issue. Jawowski, at 419. The court explained that “[a]s an appellate court … we are obligated to entertain any basis to affirm the judgment under review, even one the appellee has failed to argue. … In other words, an affirmance is required if any theory, whether argued or not, would sustain the judgment.” Id.
In contrast, the First District in Powell v. State refused to apply the tipsy coachman doctrine after briefing had ended. Powell, at 593. In Powell, the appellee argued in its motion for rehearing that the court was required under the tipsy coachman doctrine to consider an issue that the appellee had raised for the first time at oral argument. Id. at 590. The court rejected that argument, reasoning that such a rule would unfairly limit appellants’ ability to respond to the newly raised issues, requiring appellants to use their last few minutes of oral argument to attempt to respond to those issues, rather than the issues that were actually briefed. Id. at 591. The court also noted that application of the tipsy coachman doctrine so late in an appeal would incentivize appellees to ambush appellants at oral argument with previously unraised issues. Id.
The diverging opinions as to the proper timing of appellees’ tipsy coachman arguments create a pitfall for attorneys. Practitioners should be aware of this uncertainty in the law and plan accordingly to ensure their arguments are heard. As the First District stated in Powell, “the tipsy coachman doctrine ‘does not rescue parties from their own inattention to important legal detail.’” Id. at 593, quoting E.K., 948 So. 2d at 57.
Wednesday, July 2, 2014
The Grieving Process And Divorce: How To Recognize The Stages And Help Your Clients
By Jennifer L. Mockler
Family law practitioners are exposed to a wide array of issues, including divorce, timesharing, child support, and various others. There are many emotions that are involved in family law cases, and it is very important that practitioners are able to understand and manage their clients. Divorce is one of the most stressful life events an individual can experience, and it involves a process similar to those grieving the loss of a loved one.
In her book "On Death and Dying," Swiss-American psychiatrist Elisabeth Kubler-Ross identified five stages an individual goes through when grieving loss. She based her experiences with terminally ill people and later expanded her theory to apply to people experiencing any form of personal loss. These stages can be experienced in any order, and not all individuals will experience each stage. The end result, however, is the same for most people. It involves healing, which ultimately leads to growth and renewal.
Denial is a common first response that individuals experience. In family law cases, more often than not, one spouse is more ready for a divorce than the other, leaving the other spouse in a state of disbelief and denial. Your client may be filled with feelings of shock, confusion, and low self-esteem.
Anger is a common response, and many of your clients will experience some level of anger during their divorce. Your client may be angry their marriage failed, that their spouse is making things difficult, that they will have to share their time with their children, that their spouse has moved on to another relationship, etc. Your client may be filled with feelings of blame, hurt, and bitterness.
Bargaining is the stage in which clients will try to undo the damage that has been done. This stage is generally the result of the person feeling that he or she has reached the emotional breaking point and just wants to get life back to normal. Some clients in this stage may attempt to reconcile and call off the divorce, while others will progress to the next stage.
Depression is expected for clients involved in a divorce or child custody dispute. They may find themselves unable to sleep or work. Clients may have feelings of loss, loneliness, emptiness, and isolation during this stage.
Acceptance is considered the light at the end of the tunnel. In this stage, clients accept what has happened, and they are ready to co-parent. There may be times of sadness or anger, but your client is ready to move on and plan for the future.
It is important as family law practitioners to help your clients recognize that grieving is a natural reaction to divorce. Setting clear expectations with your clients will help them move through the divorce process efficiently and in a healthy manner. If you find that your client appears to be “stuck” in a stage and not progressing, referral to a mental health practitioner may be necessary.
Family law practitioners are exposed to a wide array of issues, including divorce, timesharing, child support, and various others. There are many emotions that are involved in family law cases, and it is very important that practitioners are able to understand and manage their clients. Divorce is one of the most stressful life events an individual can experience, and it involves a process similar to those grieving the loss of a loved one.
In her book "On Death and Dying," Swiss-American psychiatrist Elisabeth Kubler-Ross identified five stages an individual goes through when grieving loss. She based her experiences with terminally ill people and later expanded her theory to apply to people experiencing any form of personal loss. These stages can be experienced in any order, and not all individuals will experience each stage. The end result, however, is the same for most people. It involves healing, which ultimately leads to growth and renewal.
Denial is a common first response that individuals experience. In family law cases, more often than not, one spouse is more ready for a divorce than the other, leaving the other spouse in a state of disbelief and denial. Your client may be filled with feelings of shock, confusion, and low self-esteem.
Anger is a common response, and many of your clients will experience some level of anger during their divorce. Your client may be angry their marriage failed, that their spouse is making things difficult, that they will have to share their time with their children, that their spouse has moved on to another relationship, etc. Your client may be filled with feelings of blame, hurt, and bitterness.
Bargaining is the stage in which clients will try to undo the damage that has been done. This stage is generally the result of the person feeling that he or she has reached the emotional breaking point and just wants to get life back to normal. Some clients in this stage may attempt to reconcile and call off the divorce, while others will progress to the next stage.
Depression is expected for clients involved in a divorce or child custody dispute. They may find themselves unable to sleep or work. Clients may have feelings of loss, loneliness, emptiness, and isolation during this stage.
Acceptance is considered the light at the end of the tunnel. In this stage, clients accept what has happened, and they are ready to co-parent. There may be times of sadness or anger, but your client is ready to move on and plan for the future.
It is important as family law practitioners to help your clients recognize that grieving is a natural reaction to divorce. Setting clear expectations with your clients will help them move through the divorce process efficiently and in a healthy manner. If you find that your client appears to be “stuck” in a stage and not progressing, referral to a mental health practitioner may be necessary.
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