Saturday, May 30, 2015

Health Care Law: Statistical Sampling in False Claims Act Litigation

By Stephen V. Iglesias

The government and qui tam relators are increasingly using statistical sampling in False Claims Act to garner massive recoveries. Audit results based on reviewing a small sample of claims are extrapolated over a larger universe of claims to calculate overpayments. The government touts statistical sampling as a resource efficient means to calculate False Claims Act damages and penalties. Defendants counter that statistical sampling fails to account for the unique nature of each patient’s medical condition. Recent federal court decisions suggest a trend toward permitting the use of statistical sampling to establish both False Claims Act liability and damages.

In the Eleventh Circuit and the Middle District of Florida, statistical sampling was endorsed as a method to calculate False Claims Act damages in United States v. Rosin, 263 F. Ap'x 16 (11th Cir. 2008) and Baklid-Kunz v. Halifax Hospital Medical Center, 2014 WL 2968251 (M.D. Fla. Jul. 1, 2014), respectively. In United States ex rel. Martin v. Life Care Centers of America, 2014 WL 4816006 (E.D. Tenn. Sept. 29, 2014), however, the court expanded the use of statistical sampling beyond calculating damages. In Martin, the government selected a sample of 400 Medicare beneficiaries who received allegedly medically unnecessary services over a seven-year period and, from this sample, extrapolated 154,621 false claims. In denying the defendant’s motion for partial summary judgment, the court rejected the defendant’s due process argument that a claim-by-claim review is necessary. The court was concerned defendants stand to unfairly benefit in a case involving a high volume of claims knowing the impracticability of a claim-by-claim review. To establish False Claims Act liability, the court permitted sampling to extrapolate claims that supported the elements of falsity and materiality. The opportunity to cross-examine the statistical expert offers adequate protection to the defendant. Similar to Martin, the court in United States v. AseraCare, 2014 WL 6879254 (N.D. Ala. Dec. 4, 2014) permitted the government to proffer a statistical sample of claims to defeat the defendant’s motion for summary judgment on the element of falsity.

In United States ex rel. Guardiola v. Renown Health, 2014 WL 5780426 (D. Nev. Nov. 5, 2014) the court compelled the defendant to produce to the qui tam relator, for the purpose of deriving a statistical sample of claims, all Medicare claims data falling within the time span of the False Claims Act statute of limitations. The relator intended to use the sample to extrapolate the number of false claims over the course of the fraud scheme. Guardiola follows the same tack as Martin and AseraCare in expanding the use of statistical sampling to support FCA liability.

The above cases arguably have limited precedential value outside their respective federal judicial districts. Notably, none of the cases permit the use of statistical sampling to prove the elements of scienter or causation. Further, the courts did not pre-approve any sampling methodology, and they encouraged the defendants to vigorously challenge statistical evidence in Daubert motions and at trial.

Thursday, May 28, 2015

Proctors Needed for Bar Exam on July 28-29

The Florida Board of Bar Examiners is seeking volunteers to proctor the bar examination on July 28-29, 2015, at the Tampa Convention Center, 333 S. Franklin St., in Tampa. Proctors includes screening applicants for entry into the examination, observing before and during the examination, and assisting at the end of the test session to make sure all applicants are following the administration instructions.

Based on past experience, we will need at least 8 lawyers for each session.  Please sign up for the session you will be able to attend. 

Tuesday, July 28: 7:30 a.m.-12:30 p.m.  
Tuesday, July 28: 12:45-5 p.m.
Wednesday, July 29: 7:30 a.m.-12:30 p.m. 
Wednesday, July 29: 12:45-5 p.m. 

A lawyer/proctor should have been admitted to practice for at least one year and must not be associated with a law school. The Examination Supervisor, Audrey Fish will send specific information directly to the volunteer proctor.  Please provide your name, mailing address, and the day and time you wish to volunteer and e-mail it to Ms. Fish at

Parking will be provided for all volunteer proctors.

If you have any questions, please feel free to telephone Ms. Fish at 850-488-0637, extension 146 or e-mail at

Thank you for your service to the profession.

Wednesday, May 27, 2015

Construction Law: Defining Structural Damage - The Eleventh Circuit Rules

By William B. Collum

Section 627.706, Florida Statutes, has not always required “structural damage” as part of a “sinkhole loss.” Until 2005, the statute required “actual physical damage to the property.” The 2005 amendment to section 627.706 narrowed the damage requirement to “structural damage to the building” but left “structural damage” undefined. In 2011, the legislature codified five criteria that individually define “structural damage.” See § 627.706(2)(k), Fla. Stat.

Recently, two Eleventh Circuit opinions put to rest an issue in sinkhole litigation: interpreting the “structural damage” requirement for a “sinkhole loss.” 

In Shelton v. Liberty Mutual Fire Insurance Co., 578 F. App’x 841 (11th Cir. 2014),  the policy issued after the 2011 amendment did not define the phrase “structural damage to the building.” Nor did the policy explicitly incorporate the detailed “structural damage” statutory definition. Id. at 843. The question for the court, then, was whether the detailed statutory definition applied to the policy’s requirement of “structural damage.” Id. at 845. The court held it did. Id

The court noted the legislature intended for the “structural damage” definition to be “used in connection with any policy providing coverage ... for sinkhole losses.Id. (quoting § 627.706(2), Fla. Stat.). Because the policy did not define “structural damage,” the statutory definition “must be read into” the policy and given full force and effect as other terms in the policy. Id. (quoting Northbrook Prop. & Cas. Ins. Co. v. R & J Crane Serv., Inc., 765 So. 2d 836, 839 (Fla. 4th DCA 2000)).

The Eleventh Circuit later revisited the “structural damage” debate in Hegel v. First Liberty Insurance Corp., 778 F.3d 1214, (11th Cir. 2015). The pre-2011 policy in Hegel also contained a “structural damage to the building” requirement for a “sinkhole loss” and did not define “structural damage.” Id. at 1216. But unlike Shelton, the 2005 amendment governed the policy, and as a result, both the policy and the statute required “structural damage to the building” for a sinkhole loss without any definition of what constituted "structural damage." Id.

Rejecting the argument that any damage (however cosmetic) to the structure qualified, the court held that the plain meaning of the unambiguous phrase “structural damage to the building” is “damage that impairs the structural integrity of the building.” Id. at 1222 (adopting Gonzalez v. Liberty Mut. Fire Ins. Co., 981 F. Supp. 2d 1219 (M.D. Fla. 2013)). Distinguishing the use of the adjective “structural” from the noun “structure,” the court reasoned that “structural” is a “necessary” element of the building, not a mere cosmetic element. Id. at 1221.  

The broader aspect of the Hegel case is the court’s guidance on interpretation of contracts, especially with respect to plain meaning. For sinkhole coverage disputes involving Florida property insurance policies, Shelton and Hegel resolve these debates for the undefined use of “structural damage.” 

Monday, May 25, 2015

Corporate Counsel: Directed Verdicts in Negligence Actions

By Caroline Johnson Levine

Corporations defending negligence actions that are unable to obtain a dismissal or summary judgment may present evidence to argue for and achieve a directed verdict. However, directed verdicts can be difficult to sustain when a plaintiff can provide some proof a defendant proximately caused the plaintiff’s injuries. In Sanders v. ERP Operating Limited Partnership, 157 So. 3d 273 (Fla. 2015), the Florida Supreme Court recently resolved “when a defendant is entitled to a directed verdict in a negligence action.”

In that case, Shandalyn Sanders’ estate sued ERP, “a national company owning approximately one hundred properties,” which owned the apartment complex where Sanders and a companion were murdered. Id. at 275. ERP marketed its apartment complex as a highly secure gated community, with “a policy of providing reasonable lighting, locks, and peepholes” and alarm systems. Id. However, 20 crimes had been committed at the complex, and the entrance gate had been intermittently broken in the three years before the evening that “the victims were shot to death by unknown assailants.” Id. Sanders’ estate alleged that ERP negligently failed to maintain the entry gate, provide reasonable lighting, and warn the residents of previous criminal activity. Id.

A defense expert testified that the demise of Sanders in a violent manner was not foreseeable and that a security gate was not necessary because ERP provided reasonable security measures. The trial court denied a directed verdict, and the jury returned a verdict in Sanders' favor. However, the appellate court reversed the jury verdict and held “that Sanders did not present sufficient evidence to establish that ERP’s breach of duty was the proximate cause of the deaths of the decedents in this negligent security action, thereby warranting a directed verdict for ERP.” Id. at 277.

The Florida Supreme Court held that “[w]hether or not proximate causation exists is a question of fact, involving an inquiry into whether the respondent’s breach of duty foreseeably and substantially contributed to the plaintiff’s injuries.” Id. at 277 (citing McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992)). Further, in “order for a court to remove the case from the trier of fact and grant a directed verdict, there must only be one reasonable inference from the plaintiff’s evidence.” Id. (citing Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 322 (Fla. 2001)).

The Supreme Court reviewed the evidence presented by Sanders’ estate and concluded that it provided “a question of fact as to whether ERP more likely than not caused the decedent’s deaths” and that it “should properly be considered by a jury in a comparative negligence analysis and is not a basis for a directed verdict.” Id. at 282. Nevertheless, the Supreme Court has consistently held that courts require “proof that the [defendant’s] negligence probably caused the plaintiff’s injury,” which provides an opportunity for a defendant to present evidence that it could not foresee causation of the plaintiff’s injuries. Id. at 277 (quoting Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984)).

Friday, May 22, 2015

Elder Law: Heading Down the Home Stretch to a Great Year

By Elizabeth P. Allen and Debra L. Dandar

As we head down the home stretch to the summer break for the Elder Law Section, we would like to update you on the meetings since our last article and keep you informed about the final speaker of the program year.

We had presentations on many diverse topics. On February 5, Travis Finchum, a trustee of National Non-Profit for Americans with Disabilities Inc., the nonprofit corporation that administers Guardian Pooled Trust, gave a very informative presentation to attendees on SSI rules and lesser known Medicaid programs, such as QMB, SLMB, QI1, and Medically Needy. On March 13, April Hill, a frequent lecturer on VA topics, and Javier Centonzio, a former clerk for the Federal Court of Appeals for Veterans’ Claims, gave us an insider’s overview of the VA health care system, as well as VA Pension, Aid and Attendance and service-connected compensation. They also commented on the newly issued proposed regulations affecting the Improved Pension Program. On April 23, Tae Kelley Bronner, a renowned expert on the subject of homestead, presented a review of the relevant law regarding the constitutional homestead exemption from claims of creditors and the impact of trusts on the availability of that exemption.

The section’s last program before the summer break will be May 29 and will spotlight Dale Krause, of Krause Financial. Originally scheduled for the January meeting, his appearance was prevented by weather conditions at that time, but he graciously agreed to come back for the last meeting of 2014-2015. Krause will provide an overview of Medicaid and VA compliant annuities, options available to deal with non-compliant annuities, and the use of annuities in personal service contracts.

Each luncheon qualifies for one hour of CLE credit. Networking begins at 11:30 a.m., with luncheons beginning at noon. All luncheons are held in the Chester H. Ferguson Law Center. We look forward to seeing you at the luncheons, and as always, if you have suggestions or ideas or would like to submit an article for publication in the Lawyer magazine, please contact Elizabeth P. Allen ― or (813) 877-9222 ― or Debra L. Dandar ― or (813) 282-3390.

Wednesday, May 20, 2015

Community Services Committee: Debt Relief Clinic Assists Local Residents

By Alfred Villoch III

It is no secret. Debt collectors can be aggressive in their practices. They can make multiple calls a day. They can send dunning letters and threaten to garnish wages and take property. Debt collectors can then file lawsuits and hope to get a quick default judgment against the unwary. Many times, these efforts drive people who owe debt into bankruptcy. Low-income residents in the Tampa Bay community now have a good friend to combat these practices in the Debt Relief Clinic at the WMU-Cooley Law School

Founded in 2013, the pro bono Debt Relief Clinic is a student-run organization. Robert “Bert” Savage, the clinic’s founder, oversees about 10 students who provide free legal services in the community to eligible clients under financial distress. “Many of the eligible clients are without jobs, elderly, and/or disabled, and it is precisely these people in the community who need protection and legal help,” Savage says.

Jose Morales, a law student with the clinic, says he “enjoys the clinic because it provides an opportunity to help less fortunate people in need while getting real-world experience under the direction of a seasoned attorney.” Law students get valuable experience in that they assist clients in negotiating debt, defending collection lawsuits, raising counterclaims based on unfair collection practices, if applicable, and filing bankruptcy, if necessary.

Without a marketing budget, the clinic usually gets its clients through grass-roots efforts. For example, potential clients are usually directed to the clinic from Bay Area Legal Services or from bankruptcy judges in the Middle District of Florida. In bankruptcy cases, both the clients and the courts are happy with the clinic’s involvement because bankruptcy can often be a very technical and paperwork-driven process, much like preparing and filing tax returns. Law students under supervision can help make the process friendlier and cut down on errors associated with pro se filings. To date, the clinic has helped many people in the community and hopes to build on its early success. For more information on the Debt Relief Clinic, please contact Bert Savage at or (813) 419-5100, Ext. 5153.

Monday, May 18, 2015

Collaborative Law: From Talking the Talk to Walking the Walk

By John Fraser Himes

Three years ago when our section began, the main objective was to educate the Bar and public about the collaborative process as an often-better alternative to court and litigation. Informing divorcing couples how they can resolve their problems peaceably, privately, and in a child-sensitive way is very important. That objective continues to be a challenge, but significant progress has been made! We have an energetic section, supported by our judiciary, and two enthusiastic practice groups all working to achieve that goal. We have significantly increased awareness of this process, which empowers clients to make their own decisions on how to settle their cases, and the Collaborative Law Legislation is hopefully poised for passage, so we may have our statute that will heighten awareness to new levels. 

The section and the practice groups have also presented excellent educational opportunities. Woody Mosten recently presented a two-day seminar on how to become a full-time (and profitable) peacemaker. Last fall, Linda Solomon and Rita Pollock presented an advanced seminar teaching problem-solving techniques and the importance of the “we” in our teams. 
For those already trained and convinced that the collaborative process is our preferred way to handle a divorce, I believe we all agree the more collaborative cases we handle, the better we perform our technical roles as peacemakers. However, it also becomes increasingly obvious that there is much more to learn to enhance our skills. The skills of the collaborative practitioner may be different, but they are just as important as the skills required to hone trial advocacy skills. We are realizing, as we use the collaborative process more, our skills need to improve to better handle those difficult moments, clients, and lawyers who are struggling to make the paradigm shift as well.

Collaborative lawyers have come to realize the importance of facilitators because they possess skills that we, as lawyers, weren’t trained to have. Mental health professionals have skills of neutrality and non-defensive communication necessary to help clients feel safe and understood. Skills we need to develop are mindfulness, listening, being present, and being self-aware, as well as aware of others, so that our words are chosen and effective in the questions we ask and the communications we intend. To help our clients solve their problems at a very difficult time, we need to strive for excellence and continue to learn and be better at what we do. Just as law school does not a lawyer make, one or two trainings do not an accomplished collaborative lawyer make.

Selling the process is the important first step, but the easier one. The next important step is for us to become excellent, to accept the challenge to always be learning, so we can more effectively deliver collaborative services for parties to achieve a mutually acceptable resolution.  Being a poor performer in a great process hurts our clients and will hurt the reputation of the process, so strive to walk the walk well! 

Friday, May 15, 2015

Appellate Practice: Judge Matt Lucas Joins the Second District

By Raymond T. (Tom) Elligett Jr. and Amy S. Farrior 

In January, Judge Matt Lucas moved from the Hillsborough County Circuit Court to join the Second District Court of Appeal. Arriving on a Monday, he sat on his first oral argument panel the next day. (Clerk Jim Birkhold had thoughtfully arranged to have the files made available for his review earlier.)

The fast judicial pace is nothing new for Judge Lucas, having been appointed to the county bench in 2010, elected for another term in 2012, appointed to the circuit bench in 2013, and elected in 2014. Judge Lucas graduated from FSU with a bachelor of science degree in economics, and he attended UF College of Law. He married into a Gator family and diplomatically roots for the Gators 364 days a year.

After law school, Judge Lucas worked at Carlton Fields and then Bricklemeyer, Smolker & Bolves, becoming a shareholder. His private practice included a variety of civil trial and appellate fields. His broad experience on the trial bench added family and criminal law to his skill set, further preparing him for the Second District and its heavy criminal docket.

Judge Lucas' wide legal interests are reflected both in his professional activities and articles he has authored. His writings range from law review articles on corporate dissolution and how the right to remain silent impacts access to civil courts, to shorter pieces on valuing the marital home, title insurance, and diversity jurisdiction removal. He explains that his articles have risen out of cases that had an issue he felt warranted a deeper exploration.

Generous in sharing his time on CLE seminars and bar activities, Judge Lucas has actively contributed in projects directly benefitting children. These have included participating in Teen Court and the Great American Teach-In, serving as a Cub Scout den leader, and coaching Little League.

His interests outside law focus on his wife and their two sons, who are active in baseball and preschool. He also has varied musical interests in several instruments, and his past forays encompassed playing bass guitar in his high school jazz band, acoustic guitar for youth gatherings, and, on rare occasions, the bagpipes.

Although only on the Second District for less than a month when we met in late January for this article, Judge Lucas noted differences between trial and appellate judging experiences. The amount of written materials and their role in reaching the resolution of cases takes on a considerably more significant role in the appellate arena. Judge Lucas also shared what seems to be the prevailing view of appellate judges: that he is not a fan of footnotes, commenting they may be appropriate to direct the reader to a more detailed discussion of a less important aspect of an issue – but are not the place for crucial points. He also observed that his office phone seems to ring a little less often.

We are fortunate to have Judge Lucas become the first of two new judges on the Second District, as it expands to 16 judges. Lawyers and parties in the district can look forward to his thoughtful analysis and courteous judicial demeanor in the years to come.

Wednesday, May 13, 2015

Special Feature: Judge Whittemore - Off the Record

By Michael S. Hooker

The following is an edited excerpt of an interview with the Hon. James D. Whittemore of the U.S. District Court.

Q. Judge, can you tell us a little about your background ― where you grew up and went to school?

A. I was born in South Carolina, moved down to Jacksonville when I was in elementary school, and actually moved back to South Carolina. My dad was in the trucking business so the Eastern Seaboard was his trail. We moved back to Jacksonville the summer before seventh grade, stayed there until we moved to Tampa after my sophomore year in high school.

Q. I understand that you enjoyed surfing growing up. That’s not exactly a skill set that we normally associate with federal judges.

A. That’s where it started, in Jacksonville. That summer before seventh grade, my parents had a close friend who lived out on the beach, and one of the brothers was my age. Our parents had been close friends, and he introduced me to surfing; I surfed all the time and played golf. I balanced the two ― I had the best of both worlds.

Q. Do you still surf at all?

A. Oh yeah.

Q. Really?

A. That’s a picture in Costa Rica about five years ago, maybe six. I don’t go as much as I used to, not for any reason other than logistics.

Q. You became one of the first public defenders in the Middle District in 1978. What challenges did you face as one of the first federal public defenders here?

A. It was a great experience. We tried our own cases and handled appeals on our own cases, so we got not only trial experience but appellate experience. We argued cases in New Orleans, Jacksonville, Miami, and Atlanta. We got to go to Atlanta and argue before the new Eleventh Circuit; one of my cases eventually made it up to the Supreme Court.

Q. How would you say that experience in the federal public defender’s office helped prepare you for a judgeship?

A. The litigation experience was invaluable. Learning the federal system, the formalities of the federal system compared to the state court system. Our boss was a retired FBI agent who was very thorough and detail-oriented. He would go through your draft pleadings and make a little red check in the margin on the line where there was a typo, misspelling, or grammatical error, and then you’d have to find it. A lot of the time he seemed picky, but we learned to be precise in our writing, and I think that has assisted me in becoming a judge – being a very precise and critical writer and reader of our own work.

Q. You’ve already mentioned that you argued and won a case before the U.S. Supreme Court, Wainright v. Greenfield. That must have been a heady experience.

A. It was beyond heady, it was a great experience. Preparing for oral argument there is very different from anything else you’ll ever prepare for as a lawyer. I studied right up until the night before. In fact, I was in the library in the Supreme Court and learned a great lesson in preparation – you’re never finished. I found a case that had to do with whether or not the exercise of the right to silence is equivalent to asking for a lawyer, exercising your Sixth Amendment right. I made a little note up in the right-hand corner of my legal pad for that case, and sure enough, during the process of the argument, it was Justice White, who had dissented in Miranda if I’m not mistaken, but also was a proponent of stare decises. He asked me a very pointed question, “You tell me that remaining silent is equivalent to exercising your Sixth Amendment right?” I said, “Yes, sir, that’s exactly what this court said …” He said, “Well, who wrote that opinion?” I pointed at him and said, “You did, Your Honor!” A great experience. It was a hot court.

Q. Why did you decide that you wanted to become a judge?

A. I had applied for a county judgeship and made the short list. I may have applied one more time and didn’t get it and kind of just gave up on that because it’s disrupting when you’re trying to practice. And I remember driving out I-4 and Jim Arnold had a campaign sign, which was probably ’85 or ’86. I knew him well, and I said, “Well, my contemporaries are getting on the bench,” and it just kind of opened up that avenue of interest. It’s not why I applied, but it certainly gave me reason to think that I was at a point in my career where it might be a good time, and it worked out well.

Q. Is there a state or federal judge who you truly admire and who you try to emulate in the way you run your courtroom?

A. I anticipated that question, Michael. As a federal practitioner, the first person who comes to mind is Terry Hodges. I tried our first jury trial as an assistant federal public defender for the office in front of Judge Hodges and learned from him over the years more than, I think, any other judge. He was very serious and stern in the courtroom ― stern in a good way. And he expected us to be prepared. He was a great judge ― a great demeanor. He ruled from the bench for the most part, and we used to marvel at his ability to lean back, look through his glasses, and begin articulating a decision and cite cases and the rules, and I always admired that. 

Q. You’ve been on the state and the federal bench for a combined total of almost 25 years. And you have, if I may say, a reputation of being even-tempered on the bench. How are you able to maintain that disposition with all of the skirmishing among lawyers that typically occurs in contentious cases?

A. I’m glad to hear that because I have to admit that there are times when I wear my emotions on my sleeve, but that’s part of the personality of a judge. I think, for the most part, we try to take a breath and think before we speak, and try to eliminate the tone that so easily creeps into our communications in a courtroom. It’s a constant struggle, not because of the lawyers, I mean that’s certainly a component ― but when you’re in the midst of a deliberative process, I think we attempt to stay focused and not be distracted and get to the answer of that particular question, whatever it may be. That’s a big challenge as a judge.

Q. What do you like best about being a judge?

A. I think the sense of making a difference, of having the opportunity to apply principles of law, whether it be civil or criminal, correctly. That’s what we are asked to do and what we swear to do. That’s what the lawyers and litigants expect. The decision needs to be based on the law and the facts that are in front of a judge. I enjoy that part of it.

Q. What’s the hardest part of being a judge?

A. Sometimes it can get monotonous. Sometimes disputes are seemingly repetitive. That part of it is a challenge and sometimes can get frustrating.

Q. How do you separate your personal and political ideology from the issues that you have to decide in a case?

A. I’ve never had a problem with that. I’ve been asked that question a hundred times by non-lawyers as well as lawyers because that would seem to be to most people one of the most difficult challenges of being a judge. That’s just something that as a lawyer I didn’t let interfere with my advocacy, and I think as a judge, you certainly know it cannot interfere. 

Q. Can you tell us a little about your family? How long you have been married? How many kids do you have?

A. Thirty-seven years last Wednesday, I’ve been married. She’s a trooper. My oldest son is a lawyer who practices with the Wagner, McLaughlin firm, personal injury ― made partner last year. We’ve got a 4-year-old grandson who we are very proud of. My next son is a border patrol agent who’s been in the border patrol more than six years. He’s got brand-new twins, a boy and a girl. And I have a 23-year-old daughter at home who is challenged, special needs. She’s our baby. So a pretty well-rounded family. An older brother is a lawyer in St. Pete. A younger brother is a lawyer here in Tampa at Phelps Dunbar.

Q. Without getting too personal, how has your role as a parent of a specials need child shaped you as a person and even as a judge?

A. That’s a great question. That’s something you live and breathe every moment of your waking day and well into the night during your sleepless moments. I think it makes you appreciate challenges that those with disabilities have and just as importantly, challenges those families face. It’s difficult I think for most people to fully appreciate and understand the challenges of a special needs person and their family.

Q. Judge, last question. What have you found to be the single most fulfilling aspect of your distinguished legal career?

A. Well, that’s a hard one because I feel very, very fortunate to have been selected and appointed to this position. It’s an honor. I think the most fulfilling part is the fact that I’m in a position that the founders recognized as an important component of our system of government ― the judiciary ― the third branch ― and fulfilling that constitutional role is not only an honor, it’s just an absolute privilege. I find that to be very fulfilling.

Tuesday, May 12, 2015

Judicial Vacancies Announced for Thirteenth Circuit and County Court

The Thirteenth Circuit Judicial Nominating Commission announces two vacancies in the Thirteenth Judicial Circuit in and for Hillsborough County: one vacancy in the circuit court created by the resignation of Judge Bernard C. Silver, and the second vacancy in the county court created by the elevation of Judge Christopher C. Nash to the circuit court.

The commission is now accepting applications for one circuit court judge position and one county court judge position. Applicants must be residents of Hillsborough County, registered voters, and members of The Florida Bar for the past five years.

Applications can be downloaded from The Florida Bar's website. Applicants will be asked to provide their names, addresses, telephone and fax numbers, and email addresses to facilitate communication with the commission.

Applicants must submit a fully completed original and one copy of the application, along with a photograph attached to the original and to the copy, and one redacted copy of the application, along with a photograph attached to the redacted copy, to Terri Gaffney, Chair, Thirteenth Circuit Judicial Nominating Commission, 1311 N. Westshore Blvd., Suite 101, Tampa FL 33607, no later than 5 p.m. May 29. Incomplete applications will not be considered. Please remember to include the new Form 6.

In addition to the original and copies, applicants are requested to provide one electronic unredacted (PDF) copy of the application and one electronic redacted (PDF) copy of the application. The electronic applications may be submitted on a USB flash drive or CD-ROM. Any material redacted by the applicant must be limited to exempt or confidential information pursuant to Chapter 119, Florida Statutes, Florida's Public Records Law.

Applicants may submit one application for both vacancies. Applicants should clearly indicate in their application or on a cover letter the vacancy for which they are applying – either indicate that the application is for the circuit court vacancy, the county court vacancy, or both.

Applicants and the public will be advised in subsequent media releases of the dates of commission meetings relating to filling the two vacancies. The commission will submit the names of nominees for the two vacant judgeships to Gov. Rick Scott by July 10.

A list of members of the Thirteenth Circuit Judicial Nominating Commission is available from The Florida Bar's website. Questions should be directed to Terri Gaffney, Chair, Thirteenth Circuit Judicial Nominating Commission, at (813) 287-1159 or

Monday, May 11, 2015

State Attorney's Message: Obtaining Medical Blood Results

By Mark A. Ober

Traditionally, evidence of a crime is collected by law enforcement during the normal course of their investigation, but there are situations where it becomes necessary for my office to assist law enforcement in obtaining evidence needed to investigate a crime.  
In some cases of driving under the influence, the defendant has sought and obtained medical treatment. That treatment may have precluded law enforcement from obtaining a lawful sample from the defendant to test for alcohol or impairing drugs. During the course of treatment, medical personnel may have obtained a blood sample for diagnostic purposes. This sample may contain important evidence that could be used to determine whether a driver was impaired.

This medical blood is not obtained at the direction of law enforcement. Although the blood sample and subsequent results are not a seizure by the government or its agents, they are subject to heightened privacy protections. Not only are medical records subject to protection under federal law, 45 C.F.R. § 164.501., but section 395.3025, Florida Statutes, provides that “[p]atient records are confidential and must not be disclosed without the consent of the patient.” § 395.3025(4), Fla. Stat. Section 319.1932(1)(f)(2)(b), Florida Statutes, does allow medical personnel to notify law enforcement of a blood alcohol level over the legal level, but that information can only be used for limited purposes. Those results may be obtained by subpoena, but our office must provide notice to the defendant before issuing that subpoena. § 395.3025(4)(d), Fla. Stat.

To satisfy the requirements imposed by that statute and by the federal regulations implementing the Health Insurance Portability and Accountability Act of 1996 (HIPAA), our office notifies the defendant of our intent to obtain the defendant’s medical records and of the opportunity to object to the issuance of the subpoena.

If a defendant provides timely objection to the subpoena, our office must set the case for a hearing. At the hearing, the state carries the burden of showing that those records would be relevant to a criminal investigation. See Hunter v. State, 639 So. 2d 72 (Fla. 5th DCA 1994). The state must “show the nexus between the medical records sought and a pending criminal investigation.” Id. at 74. This burden can be met through the presentation of live testimony or by reliance upon a probable cause affidavit or sworn statement. See McAlevy v. State, 947 So. 2d 525 (Fla. 4th DCA 2006).

If there has been no objection, or after hearing, a subpoena may be issued to the hospital to provide the results of any blood test showing the alcohol level of the defendant. The information that my office is able to obtain is limited to information that would be relevant to the crime being investigated; it would not include all of the defendant’s medical records. 
As state attorney, it is my duty to assist law enforcement in lawfully obtaining evidence of criminal acts. Lawfully obtained evidence allows my prosecutors to secure convictions that help keep our community safe.

Saturday, May 9, 2015

Executive Director's Message: Pro Bono and Pork - A Proud HCBA Tradition Continues

By John F. Kynes

They came ready to run. They ate great food. They enjoyed good company. And they left feeling full and gratified that they had helped support the Bar and pro bono work in the community.

That sums up the festivities on a beautiful Saturday afternoon on March 21 when more than 500 people participated in the HCBA’s 12th Annual Judicial Pig Roast/Food Festival and 5K Pro Bono River Run held on the grounds of Stetson Law’s Tampa campus.

“The Pig Roast and 5K are unique and fun HCBA events, and I am pleased that we had a huge turnout this year,” said HCBA President Ben Hill IV. “I believe the family-friendly atmosphere helps build greater camaraderie among HCBA members, and the tremendous support of the 5K certainly speaks volumes about the Bar’s commitment to pro bono service.”

There were more than 20 food and beverage booths at this year’s Pig Roast/Food Festival, which featured a wide variety of culinary delights and handcrafted concoctions.

The judges of the Thirteenth Circuit were “all in” again this year, and they took home the prize for Best Pig Sty, or most creative booth. Inspired by the 75th anniversary of the premiere of “The Wizard of Oz,” the judges decorated their food tent with Oz-themed paraphernalia. A sign hanging from their tent read “The Judges of Oz.” 

Some judges also came dressed as characters from the movie. Wearing ruby slippers, Judge Samantha Ward came as Dorothy; Judge Caroline Tesche was quite a sight dressed in all silver as the Tin Man; Judge Lisa Campbell was the Scarecrow; and Judge Kimberly Fernandez was decked out as the Cowardly Lion.   

Judge Jack Espinosa Jr. arrived just after 7 a.m. on Saturday morning and spent the next eight hours with a small group tending to 20 Boston pork butts cooking in a massive black 11-foot smoker parked behind Stetson under an oak tree. A Pig Roast veteran, Espinosa said the key to preparing the judges’ pulled pork entree was the special marinade applied to the meat the night before and cooking the pork at the proper temperature.

“Low and slow is best,” Espinosa said as smoke billowed from the smoker nearby.

GrayRobinson, P.A., took runner-up honors for Best Pig Sty for its strawberry-themed food booth, which was adorned with red balloons made to look like strawberries. Grace Yang, a GrayRobinson partner and HCBA board member, helped serve attendees strawberry shortcake and strawberry daiquiris made with fresh Plant City strawberries.

The award for Best Pig Slop, or best food, went to the law firm of Trenam Kemker. Eric Koenig, the firm’s own “Top Chef,” explained that Trenam’s culinary theme this year was called “Feed Your Inner Child.”

Koenig said he took familiar childhood food favorites ― chicken fingers, macaroni and cheese, and Rice Krispie s’mores ― and “elevated” them to a gourmet level using extra fresh ingredients and homemade bourbon barbeque sauce for the chicken fingers. He said he spent weeks creating handcrafted American wheat and Nutella beers that attendees were able to enjoy.

Wilkes & McHugh and the Thirteenth Judicial Circuit shared runner-up honors for Best Pig Slop.

The HCBA’s inaugural 5K run took place in 2009, and before this year’s Pig Roast, runners hit the streets for what is now called the 5K Pro Bono River Run.

“This year’s race was a great success with almost 300 runners and over 2,500 hours pledged in support of indigent citizens in our community,” said Judge John Conrad, who chaired the 5K event along with Judge Christopher Nash. “The 5K Committee deserves special thanks for their outstanding effort in making this race such a wonderful event.” 

The overall 5K male winner was Alejandro Navas, and the overall female winner was Yova Borovska. The fastest male judge was Judge Gregory Holder, and the fastest female judge was Judge Linda Allen.

Of special note, Judge Conrad’s 85-year-old father, Joe, ran a remarkable time for his age, and Judge Nash’s 7-year-old son, Charlie, ran for the second year in a row.

Dick Woltmann, executive director of Bay Area Legal Services, said the 5K run not only raises pledges of pro bono hours, it also generates pro bono participation in various projects in the Thirteenth Circuit, such as Crossroads for Florida Kids and Are You Safe. Woltmann said this year’s pledges of more than 2,500 pro bono hours represent a 50 percent increase in hours pledged from last year.

No doubt both the Pig Roast and 5K run have experienced many changes over time, but the competitive spirit and camaraderie that exist among HCBA members remain the same. Many thanks to all the financial sponsors and tireless volunteers who, over the years, have helped make both these events a success.

See you around the Chet.

Wednesday, May 6, 2015

YLD President's Message: The Practice of Law - Learning to Act like a Lawyer

By Anthony "Nino" Martino

According to about half the attorneys who responded to a Florida Bar survey in 2013, the most serious problem facing the legal profession today is too many lawyers. Objectively, since 2000, the number of law schools in Florida almost doubled with the addition of five new law schools. Not surprisingly, the number of lawyers in this state increased by more than 50 percent. By comparison, in 1980, the state had only 27,000 lawyers, approximately a quarter of the amount today. 

A natural consequence of the increased competition is a decrease in available work and, thus, the opportunities to develop as a young lawyer. It is the practice of law, as opposed to only knowledge of it, that will prove vital to your development in the profession. I think this concept was well explained by Alasdair MacIntyre, who defined practice as involving a “coherent and complex form of socially established cooperative human activity.” This requirement, MacIntyre observes, distinguishes planting turnips from farming. Said another way, it is not enough to think like a lawyer, you must learn to act like one. 

The practice of law can only be achieved through clinical experience. In addition to seeking out mentors, young lawyers need to seek out the experiences necessary in their particular field. “Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge.” Comment to Fla. Bar Rule 4-1.1. Perfecting your craft requires exposure to “lawyering” done in trials, hearings, client meetings, negotiations, and depositions. If you are not being provided these opportunities, then you must seek them out elsewhere. Experiential education is necessary to develop the ability to understand a concept on a level that you can then anticipate and apply to new situations.  

In an attempt to broaden the experiences available to young lawyers, the YLD offers a number of programs designed to increase such exposure. Through the YLD, you can participate in our Judicial Shadowing program, where feedback is received directly from the bench; attend the State Court Trial Seminar on June 12, where established litigators take you from trial preparation through closing arguments; or volunteer for structured and supervised pro bono, where you can develop or enhance skills such as negotiating (with your client and with opposing counsel), drafting pleadings, handling discovery, arguing motions, representing clients at trial, learning about new courts, and writing briefs. 

Recent & Upcoming YLD Events

The State Court Trial Seminar will be June 12 from 1 to 5 p.m. at the George E. Edgecomb Courthouse, 6th Floor, Courtroom 1 (4.0 CLE Credits).

For more information on the YLD’s activities, check out our Facebook page

Tuesday, May 5, 2015

Law Week Reminds Us Why We Are Lawyers

By Kevin B. Elmore

Why are you a lawyer? I have found myself asking this question periodically throughout my brief career. Usually, the question comes up around midnight when I have hours of work left to do and no energy to carry on. Other times, it is when I’m sitting across the table from another attorney who doesn’t seem to approach the practice of law with the honor I feel it deserves (invariably, not a member of our circuit). Regardless of when it comes up, the answer is always the same ― to do justice and advance the rule of law when others disregard it. I want to live a life of consequence, to stand against the tides of chaos, and balance freedom with anarchy. It can be hard to remember this laudable concept as a young lawyer, but each year my spirit is renewed by a small committee of very dedicated individuals.

The YLD Law Week Committee reaches out to our community through fellow Bar members who volunteer their time and teach students about the practice of law. This year, more than 2,400 students were able to participate in mock trials, classroom lectures, and courthouse tours. This year’s theme, “Magna Carta ― Symbol of Freedom Under Law,” was especially profound as we continue to debate the role of executive powers and judicial checks and balances. The Magna Carta is sometimes viewed as the starting point of democracy, but in truth, it did one simple thing ― placed the King of England under the rule of law.

I felt a tremendous sense of pride helping disseminate this message of accountability to our future leaders. It is quite likely many of the students won’t remember the exact details of our discussions, but there is no doubt their lives have been affected. This year, as with every year, our volunteers received packages full of letters from students thanking them for their time and inspiration. These brief notes are sometimes hilarious ― Why don’t you work for the big name firm on the billboard? How much money do you earn? ― but more than that, they are revitalizing. Each thank you note serves as a small reminder that the next generation still cares about our Great American Experiment.

As a young lawyer, it is not always easy to discern your importance to the world. Events like Law Week help put it into perspective. I would like to thank all of our volunteers and my fellow committee members: Amy Nath, Alexandra Haddad, Maja Lacevic, Sacha Dyson, Clinton Morrell, Melody Manning, Elizabeth Tosh, Crystal Russell, and Carlos Morales ― you are an inspiration. Thank you for blessing me with the sense of purpose that will get me through another year of legal nitpicking and attendant foot-high stacks of discovery.

Criminal Law: Clemency Project 2014 Needs Your Help

By Matt Luka

Clemency Project 2014 is a national pro bono program helping federal prisoners obtain early release from unfairly long sentences, and the program needs your help. After decades of extremely harsh sentences, the Department of Justice announced an initiative to award clemency to deserving federal inmates. In asking the legal profession to provide pro bono assistance to federal prisoners who would likely have received a shorter sentence if they had been sentenced today, Deputy Attorney General James Cole said, “For our criminal justice system to be effective, it needs to not only be fair, but it also must be perceived as being fair. Older, stringent punishments that are out of line with sentences imposed under today’s laws erode people’s confidence in our criminal justice system, and I am confident that this initiative will go far to promote the most fundamental of American ideals ― equal justice under law.” 

Under the new initiative, the Department of Justice will prioritize clemency applications from inmates who meet all of the following factors:
  • They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
  • They are non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels;
  • They served at least 10 years of their prison sentence;
  • They do not have a significant criminal history;
  • They have demonstrated good conduct in prison; and
  • They have no history of violence before or during their current term of imprisonment.
The Bureau of Prisons will notify inmates of this initiative and provide interested inmates with an electronic survey that will help pro bono lawyers and the Justice Department screen the petitions. The Justice Department has asked all 93 United States Attorneys for assistance in identifying meritorious candidates. Thousands of federal inmates have already sought assistance. This is an unprecedented opportunity to restore the hope of freedom for many, but a significant number of lawyers are needed to provide this legal assistance. 

Clemency Project 2014 is a national pro bono effort with a working group made up of lawyers and advocates, including the American Bar Association, the American Civil Liberties Union, Families Against Mandatory Minimums, the National Association of Criminal Defense Lawyers, Federal Public and Community Defenders, and lawyers within those groups. CP 2014 members have collaborated to recruit and train lawyers on how to screen for eligible inmates and represent those inmates in the clemency process. For those attorneys who currently serve as members in good standing on a Criminal Justice Act Panel, you need not complete the training if you can provide a copy of your CJA appointment letter. But you do not need to have handled criminal cases to be eligible and capable of participating in this work. The training program is available on the Internet, so you can complete the five-hour program on any computer. CP 2014 staff and volunteers are available to provide resource and guidance to you as you analyze the cases, and the project has developed a toolkit of templates to streamline the process. To volunteer for this important project, please visit the Clemency Project 2014 website at, or email You can also volunteer at or contact the Federal Public Defenders Office for the Middle District of Florida. 

Monday, May 4, 2015

News from Around the Association

Erin Smith Aebel, partner at Shumaker, Loop & Kendrick, LLP, has been appointed to the Board of Directors of the St. Petersburg Museum of Fine Arts.  The purpose of the Museum of Fine Arts is to increase knowledge and appreciation of art, to collect and preserve objects of artistic interest and merit, to protect works of art, to provide facilities for research, and to offer instruction and opportunities for aesthetic enjoyment of art. Aebel focuses her practice on health care and data breach.

Alexander Caballero, partner at Mason Black & Caballero P.A., has been named a fellow in the American Academy of Matrimonial Lawyers ― one of only 1,600 lawyers in the U.S. to hold this credential. Membership in the organization indicates the highest degree of professionalism and excellence in the practice of family law. 

Michael G. Cooke, an attorney at Greenberg Traurig, P.A., has been selected as a member of Law360’s 2015 Environmental Editorial Advisory Board. Cooke is one of 16 environmental lawyers across the country named to the 2015 board. Cooke concentrates his practice in administrative law, including environmental, utility, and land use law. 

Kacy Donlon and Dionne Fajardo of Wiand Guerra King P.L. presented an anti-money-laundering webinar to Financial Services Institute members on January 15, titled “A Penny for Your Thoughts: Recent AML Enforcement Cases.” Donlon concentrates her practice on the defense of businesses and individuals involved in the securities and financial services industries. Fajardo’s practice includes representation of broker-dealers, investment advisors, and their associated persons, as well as regulatory matters.

Michelle Drab, Web Melton, and Josh Welsh have been named shareholders of Bush Ross, P.A. Drab's practice focuses on general civil litigation, primarily in the areas of contract disputes, professional liability, and residential and commercial mortgage foreclosures. Melton’s practice focuses on assisting association officers, directors, and property managers with corporate operations, including litigation, arbitration, mediation, and transactions. Welsh's practice focuses on motion practice, litigation support, and appeals.

Thomas Newcomb Hyde has been appointed by Gov. Rick Scott to the Judicial Nominating Commission for the Thirteenth Judicial Circuit for a term that began September 10, 2014, and ends July 1, 2018.

Peter B. King, a founding member of Wiand Guerra King, was recently inducted as president of the Tampa Bay Chapter of the Federal Bar Association, the largest voluntary bar organization in the U.S. devoted to the federal courts and federal court practitioners. King practices commercial and complex litigation.

Kevin P. McCoy of Carlton Fields Jorden Burt has been elected to shareholder at the firm’s Tampa office. McCoy practices complex commercial and civil litigation with an emphasis on efficient dispute resolution.  

Carol Moody, Senior Advocacy Unit team leader at Bay Area Legal Services, was awarded the 2014 Jane Kennedy Excellence in Aging Award by the Southeastern Association of Area Agencies on Aging (SE4A) for her outstanding contributions in promoting the safety, welfare, and well-being of older people in the Southeast.

Andrew M. O’Malley, an attorney for Carey, O’Malley, Whitaker & Mueller, P.A., and Kevin McCoy, an attorney shareholder at Carlton Fields Jorden Burt, have been selected to serve as the 2015 chair and chair-elect for the Board of Directors of Bay Area Legal Services Inc. 

Andrew J. Patch has been elevated to Of Counsel at the Tampa office of Greenberg Traurig, P.A. Patch is a member of the Litigation Practice Group and concentrates his law practice on International Trade Commission's Section 337 litigation matters. 

Scott P. Pence of Carlton Fields Jorden Burt has been elected to shareholder at the firm’s Tampa office. Pence’s practice focuses primarily on representing developers, owners, architects, and contractors in the preparation, negotiation, and administration of contracts and forms.

Shannon M. Sheppard has been appointed as a managing shareholder at Smolker, Bartlett, Loeb, Hinds & Sheppard, P.A. Sheppard will oversee all aspects of firm management, including strategic and long-range planning, business development, and client relations. She focuses her practice on commercial real estate transactions and professional and business licensing.

Murray B. Silverstein has been elevated to shareholder at the Tampa office of Greenberg Traurig, P.A. Silverstein, a member of the Litigation Practice Group, focuses his practice on business, commercial, and real property litigation. 

Robert A. Soriano, a shareholder in the Tampa office of Greenberg Traurig, P.A., spoke at the 39th Annual Alexander L. Paskay Memorial Bankruptcy Seminar in March. Soriano presented on the topic of health care issues during a business bankruptcy breakout session. At Greenberg Traurig, Soriano focuses his practice on bankruptcy litigation, business restructuring, and creditor rights representation. 

Robert Stern, a shareholder at Trenam Kemker, has been appointed as a trustee for the University of Florida by Gov. Rick Scott. In this role, Stern will assist UF in its budgetary process, with the provision of important resources and by facilitating mentor programs. His practice focuses on commercial real estate, with an emphasis on transactional and financing matters.

Robert M. Stoler, John D. Russell, Robin P. Keener, and Catherine M. Verona have formed Stoler Russell Keener Verona P.A. in downtown Tampa. Greg A. Gidus and Joel R. Mohorter have joined the firm as associates.

Seth P. Traub has been named a partner at Shumaker, Loop & Kendrick, LLP. Traub is a member of the Bankruptcy and Creditors Rights and Litigation practice groups. His principal areas of practice include business litigation and appellate representation, with a focus on creditors, trustees, and business entities litigating disputes in bankruptcy court.

Luis Viera of Ogden & Sullivan was elected vice chairman of the City of Tampa Civil Service Board. Viera practices in the areas of automobile liability, personal injury, and transportation litigation.

Jeffrey W. Warren, president of Bush Ross, P.A., was a featured speaker at the 39th Annual Alexander L. Paskay Memorial Bankruptcy Seminar. The seminar is a CLE program honoring the lifetime achievements of the late Judge Alexander L. Paskay. The program featured prominent regional and national speakers, joined by bankruptcy judges, who discussed both commercial and consumer bankruptcy issues.

Susan Miles Whitaker, managing attorney for Bay Area Legal Services’ Legal Information Center, was presented with the Theodore Millison Professionalism Award plaque. Tampa’s Family Law Inn of Court’s Professionalism Award is the highest honor that the inn presents. Whitaker focuses her practice in family law.

Edmund S. Whitson III is joining the Tampa office of Arnstein & Lehr as a partner in its Litigation Practice Group. Whitson handles complex litigation matters in both district and bankruptcy courts, and he deals with sophisticated collection/garnishment and judgment recovery litigation.

Howard J. Williams has joined Golden Scaz Gagain, PLLC, as an associate in the firm’s general liability practice group. Howard will focus his practice on the defense of retail, premises, automobile, and trucking liability claims.

Brian C. Willis, an associate at Shumaker, Loop & Kendrick, LLP, has been elected vice-chair of the Citizen Advisory Committee for the Hillsborough County Metropolitan Planning Organization (MPO).  The MPO is responsible for establishing a continuing, cooperative, and comprehensive transportation planning process for Hillsborough County. Willis was also a panelist at Tampa Bay Startup Week, discussing “Fostering a Startup and Innovation Ecosystem.” He focuses his practice on contract and lease disputes, easements, and restrictive covenant violations.

Gregory C. Yadley, partner at Shumaker, Loop & Kendrick, LLP, was principal chair of the 33rd Annual Federal Securities Institute in Miami on February 5 and 6. The institute, a major advanced-level securities law symposium, featured leading practitioners, members of the judiciary, and officials of the Securities and Exchange Commission to discuss the cutting issues of securities regulation and litigation and mergers and acquisitions. Yadley practices corporate and securities law at the firm.

Grace H. Yang, a shareholder in GrayRobinson’s Tampa office, has begun a two-year term of service on the board of directors of the Westshore Alliance. Established in 1983, the Westshore Alliance is a business-based, membership-driven organization dedicated to improving the quality of life for employees and member companies in the Westshore Business District of Tampa. Yang’s areas of legal practice include food law, land use, and liquor licensing.

Stolberg & Townsend, P.A., has relocated to a new office at 3321 Henderson Blvd., Suite 201, Tampa FL 33609-2931. The building is also home to Tampa Title Company and Gibbons, Neuman, P.A. The firm practices in all areas of injury and disability law, including auto accidents, personal injury, medical malpractice, wrongful death, social security disability, workers’ compensation, and state disability retirement. 

The Family Law Inn of Tampa is now officially the Stann W. Givens Family Law Inn of Tampa. Givens Givens Sparks founding partner Stann Givens began this Tampa chapter of The American Inns of Court 20 years ago and remained its leader for 19 years. Givens focuses his practice on family law.

HCBA President's Message: 10 Tips for Young Lawyers

By Benjamin H. Hill IV

I live in denial. I refuse to believe that I am no longer a young lawyer. In reality, I am now quite removed from the Bar's definition of a "young lawyer" as I am no longer near being “under 36 years old or admitted to practice for five years or less.” Perhaps like many of you, my young lawyer days have faded somehow to a point where I can hardly see, hear, or recall moments that just yesterday I swore I would never forget. Curiously, this seems to resemble a phenomenon that has arisen on the home front as my wife and daughters diligently point out how much I fail to see, hear, or remember (of course, they don't know what they're talking about).

Kidding aside, I am a huge fan of young lawyers and submit that our local Bar is fortunate to count so many talented and professional young attorneys as active members. Perhaps I am biased as I "grew up" in the HCBA-YLD, but in this year's role I have observed firsthand our YLD continuing its tradition to do, serve, and achieve greatly. As such, it firmly remains a leader among its peers not only throughout Florida, but nationally as well. Indeed, the success of our YLD bodes well for our local Bar as it attracts lawyers early in their careers and helps to nurture and shape them into servant leaders who, through the relationships they build and the respect for the law they develop, go on to assure that our area remains one of the most professional places to practice in the country.

The above said, a number of young lawyers have asked me this past year for advice, tips, and, generally speaking, what I have learned that might help them in the early parts of their careers. Although I feel wholly inadequate to answer such and recognize that I am far from an authority, I recall that line from The Faces’ hit, Ooh La La, "I wish that I knew what I know now when I was younger ..." and offer the following:

1. Be professional at every turn. Each case, transaction, or matter has pivotal moments, and one of them usually occurs early on. When it does, set the tone for all involved by extending professional courtesy. 

2. Find a mentor. Sooner or later, we all need some help within the profession. Try to identify someone who will genuinely listen and really share what he/she thinks. Although many workplaces foster and even structure such mentoring, others do not. Here, I shamelessly plug and recommend the HCBA and Thirteenth Judicial Circuit's Mentoring Program.

3. Be accountable. Like life, each day is filled with choices. Sometimes, we screw up. When we do, don't cover up ― own up. As the saying goes, the cover-up is often worse than the crime. Save yourself, and those around you, a lot of heartburn. Admit your mistakes, accept their consequences, fix them (if you can), learn, and move on.

4. Give back to our profession. Everyone has some time and talent. Take a pro bono case. Volunteer and serve on a committee. Write an article for this magazine. Speak at a CLE or similar program. When opportunity presents, educate friends, neighbors, and kids on our justice system and the importance of judicial independence. Toward this end and with a focus on delivering civics education to others, The Florida Bar's Benchmarks programming is excellent. To learn more about Benchmarks while receiving CLE credit, I encourage you to attend the May 29 program that our friends at HAWL have coordinated (see the HCBA website for more info).

5. Be nice. Although I am sure I borrowed this from someone, does this one really need any commentary? Seriously, just be nice.

6. Establish and build relationships. If you value networking and its benefits, go to a YLD lunch or, perhaps better yet, a YLD Happy Hour or other event like the YLD Golf Tournament. Email friends or acquaintances and meet them at the Law Day Lunch on May 20. Go to a lunch sponsored by a section or committee that involves one of your practice areas. You never know where your next idea, tip, case strategy, referral, or friendship will originate, but your odds improve when you join other lawyers at such events.

7. Smile, laugh, and have some fun. The practice of law can be stressful. The hours are long. Clients can be demanding. Each issue is someone's crisis. I recognize it can be difficult at times, but find the humor in things and embrace it. Lighten up and laugh at yourself. 

8. Get active in our local Bar. You have chosen a career path, so share it with others, especially your YLD peers with, and even against, whom you may well be practicing for years. You will not only learn from each other, but over time you will inevitably help and support each other, all the while becoming better lawyers. One of the best opportunities to grow more active is to participate in the HCBA’s Bar Leadership Institute. If you have not considered applying to this terrific program, please do and visit the HCBA’s new website for more information.

9. Be a doer and never stop. Although one should not say "yes" to every opportunity and should analyze the cost/benefit of each commitment, it is good to stretch yourself every now and then. Challenge yourself to do something outside of your comfort zone. You will not only grow in unexpected ways, you will positively impact ― perhaps even unknowingly ― someone else.

10. Enjoy the moment. As implied above, you will not be a young lawyer forever. Ask your rookie questions now and understand the answers. As King Solomon wrote, "[t]here is a time for everything, and a season for every activity under heaven." Ecclesiastes 3:1. Enjoy your "season" as a young lawyer!

Saturday, May 2, 2015

Editor's Message: Documenting the HCBA's History

By Ed Comey

“The memories of men are too frail a thread to hang history from.” I have to confess I’ve never been good at analyzing literature. So I have no real idea what John Still meant when he wrote that line in The Jungle Tide. (That could be, in part, because I haven’t read the book.) But I do know what the quote meant to me when I came across it online: Our history is so important that we must write it down so it can be passed on to successive generations. For the past 25 years, the Lawyer magazine has been doing a fantastic job of documenting the HCBA’s history for those who will come after us.

Before becoming editor, I always thought of the legal articles when I thought of the Lawyer magazine. When I practiced, it was great to be able to flip through a copy of the Lawyer and read about the latest developments in a variety of practice areas. As the editor now, I appreciate how much time and effort (by others, not me) is devoted to turning out such a high-quality legal publication. There is no question in my mind that the Lawyer magazine is the best local Bar publication around. But as I’ve been editing this year’s 25th anniversary edition, I’ve really come to appreciate how all of the articles and snippets about what the HCBA is up to tell a compelling story about who we are as a Bar association.

Just look at the special features in this year’s editions alone. In the September-October issue, there was a nice feature about the birth of the Bench Bar Conference 18 years ago and how it has turned into the HCBA’s signature event, featuring a full day of CLE classes, a membership luncheon, and a judicial luncheon. This issue’s feature documents the history of the Chester H. Ferguson Law Center, which has become the hub for the HCBA’s activities. Last issue, there was a great feature about how the 1st Annual Barrister Bash Pig Roast from 11 years ago has evolved into the Judicial Pig Roast/Food Festival and 5k Pro Bono River Run we know today. But perhaps my favorite was Cory Person’s touching feature in the January-February issue about the legacy of George E. Edgecomb and how he paved the way for a whole generation of lawyers who came after him.

As I mentioned in my initial editor’s message, historian David McCullough once observed, “History is who we are and why we are the way we are.” We are fortunate to be part of such a vibrant Bar association with a rich history. While I tremendously appreciate all of the lawyers who take time to keep us up-to-date on the latest legal developments, I hope the Lawyer magazine continues to fill its role of telling who we are and why we are the way we are for many years to come.