Coporate Counsel Section: Spotting Legal Issues Involving Marijuana in the Workplace

By John W. Bencivenga

Dealing with marijuana issues in the workplace is increasingly becoming a dicey proposition. If you are like me, your preference would be to handle this issue in the workplace just like you handle it at home, which in my case, with four teenage sons, means zero tolerance, no questions asked. If I find out you are smoking marijuana, if left to me, you would be fired (or grounded for life, in the case of my boys). However, much to my regret, “the times, they are a changin’.”

I recently ran across a case from the New Mexico Court of Appeals, Maez v. Riley Industrial, 2015 WL 178359 (N.M. Ct. App. Jan 13, 2015), which held that marijuana was a compensable drug in a workers' compensation case where the use of medical marijuana was reasonable and necessary medical care. Because the court held that medical marijuana was a compensable drug, the employer could be forced to pay for it. The appellate court concluded that the use of medical marijuana was reasonable and necessary even though the employee's health care provider did not initiate or recommend its use. With this brief background, here are some issues that may be soon rolling across your desk:

1. Zero tolerance policies. There are at least 23 states that recognize the use of medical marijuana. Several more states may introduce legislation this year where the merits of medical marijuana will be debated. These state laws vary on whether an employer can terminate an employee for a positive drug test result. In states such as Arizona, Delaware, Connecticut, and Rhode Island, medical marijuana users are protected from discrimination for their use of marijuana. So, if your company has a standard zero tolerance policy and operates in several locations, it would be wise to research state law before terminating an employee who tests positive for marijuana.
2. ADA protection issues. Under the Americans with Disabilities Act (ADA), the use of illegal drugs as defined by federal law is not protected. Marijuana remains illegal under federal law because it is classified as a Schedule 1 drug under the Controlled Substances Act (21 U.S.C. § 801 et seq.). Therefore, employers are not required to accommodate an employee’s use of marijuana for medical purposes in the workplace or during working hours. So, if Mr. Maez (from the case above) comes back to work and wants to use marijuana the workplace, the employer does not have to accommodate this request. However, assuming Mr. Maez is disabled, other ADA reasonable accommodations would have to be considered.
3. Recreational use can be prohibited. Medical marijuana laws, in general, require the user to obtain a card or other documentation justifying use. In cases where employees are just smoking marijuana for recreational purposes, employers remain free to enforce drug-free workplace laws.

In summary, the days of “Just Say No to Drugs” seem to be a thing of the past. However unfortunate you (or I) think this may be, the fact is that in-house counsel need to stay up to date on the changing legal landscape involving these issues.

Construction Law: Boilerplate Objections – the Devil Is in the Details?

By Erin E. Banks

If you are a litigator reading this article, you have inevitably encountered language similar to the following in a response to written discovery:

[Party] objects to this request on the grounds that it is vague, ambiguous, overly broad, unduly burdensome, not reasonably calculated to lead to discovery of relevant information, seeks information protected by the attorney-client privilege, and seeks confidential information. Subject to and without waiving the foregoing, please see documents produced as Bates X to Y.

Often, preceding such a response is a litany of boilerplate general objections that are stated to be incorporated into each individual response. Although responding to written discovery in this manner is commonplace, courts’ patience for discovery disputes regarding such responses appear to be increasingly waning. The outcome of such disputes can vary from a court granting your opponent’s motion to compel, to the court finding by responding to a request with an objection and “subject to” response, like the example above, you have waived your objection – especially in federal court in the Middle District of Florida.

In Martin v. Zale Delaware, Inc., 2008 WL 5255555 (M.D. Fla. 2008), the plaintiff filed a motion to compel regarding discovery responses almost identical to the example language above, arguing that she was “confused as to which documents Defendant has withheld (if any) and why.” The court stated, “Parties are not permitted to assert these types of conclusory, boilerplate objections that fail to explain the precise grounds that make the request objectionable,” and “an objection that a discovery request is irrelevant and not reasonably calculated to lead to admissible evidence must include a specific explanation describing why.”

Most importantly, however, the court stated: “Additionally, it is common practice for a party to assert boilerplate objections and then state that ‘notwithstanding the above,’ the party will respond to the discovery request, ‘subject to or without waving the objection.’ Such an objection and answer preserves nothing and wastes the time and resources of the parties and the court.”

This rationale is increasingly being adopted by federal courts in Florida and beyond.  See Chemoil Corp. v. MSA V, 2013 WL 944949 (M.D. Fla. Mar. 12, 2013) (explaining that “[e]ven though the practice has become common here and elsewhere, courts have found that whenever an answer accompanies an objection, the objection is deemed waived, and the answer, if responsive, stands”) (citing Pepperwood of Naples Condo. Ass’n v. Nationwide Mut. Fire Ins. Co., 2011 WL 4382104 (M.D. Fla. Sep. 20, 2011); Consumer Elec. Ass’n v. Compras & Buys Magazine, Inc., 2008 WL 4327253 (S.D. Fla. Sep. 18, 2008).

Therefore, whether you agree with the courts’ rationale regarding waiving objections, use caution when using form objections and answers in responding to written discovery. In this day and age of overcrowded court dockets, courts may become increasingly unsympathetic to counsel who raise these types of objections. To avoid this situation, provide a detailed basis for any objection – and remember, object and answer “subject to your objection” at your own risk.

HCBA Board Election Notice

Are you interested in becoming an HCBA officer, director or YLD board member?

Regular and honorary members of the HCBA may file a notice of intent to become a candidate for president-elect or for the HCBA and YLD board of directors. The deadline for submitting a notice of intent is April 10 at 5 p.m.

Please mail your notice of intent to the HCBA, 1610 N. Tampa St., Tampa FL 33602, or email Executive Director John Kynes at jkynes@hillsbar.com.

For more information, please call 813-221-7777.

Collaborative Case Law: Blank Slate or Black Hole?

By Joryn Jenkins and Lori Skipper

The dearth of collaborative case law exists for good reason. Assuming that collaborations are successful, and most are, collaborative teams model problem-solving behaviors and communication skills so that their clients learn to resolve future disputes without resorting to the litigation process. Less trial and post-judgment litigation means less appellate litigation, which means less case law. In the typical collaborative divorce, no court is involved other than to approve the parties’ agreement.

Collaborative practice is similar to mediation. What mediation case law exists usually concerns setting aside an agreement caused by coercion or duress, which is unlikely to occur in the collaborative setting, where the entire team, both neutral and allied professionals, works together to construct an agreement acceptable to both parties. 

In a recent local post-judgment case, the clients had initially collaborated their way to a marital settlement agreement (MSA). One of their collaborative attorneys later petitioned for modification. Naturally, the other party’s new lawyer moved to disqualify him.
Had the parties attempted to resolve their disagreements collaboratively? If so, why were they unsuccessful? We don’t know.

There’s no authority preventing a collaborative attorney from litigating once the original collaborative participation agreement (PA) is accomplished and a divorce finalized. Further, this collaborative MSA included the standard provision that the agreement contained the entire understanding and replaced any prior agreements between the parties. There was no exception for the PA. 

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

Practice Tip One: Ensure that your collaborative MSA specifies that it does not nullify the PA (which includes the disqualification clause) and that the disqualification clause applies to post-judgment matters.

Practice Tip Two: Ensure that your MSA provides that clients unable to compromise in later disagreements themselves return to collaboration before seeking recourse in court.
In 2012, an opposing party moved to disqualify me, contending that we had already begun the collaborative process when the parties opted for litigation instead. The parties had not retained joint neutrals, and only one had signed the PA. (My client was uncomfortable with the disqualification provision.)

Our expert opined that the collaborative process had never begun because not all participants had executed the PA. Opposing counsel argued that the parties had orally agreed to proceed collaboratively, disqualifying the attorneys when the process failed. There were no statutes, local rules, or case law governing collaborative divorce; the judge was writing on a blank slate.

Ultimately, he held that I was not disqualified; there was no collaborative participation agreement signed and no meeting of the minds regarding disqualification. Because there was no appeal, the unreported opinion was consigned to law’s black hole.

Because of the negotiating lessons learned by collaborating parties, the lack of case law is likely to last. That is why it is so critical for collaborative statutes and rules to be passed. Once we pass the Uniform Collaborative Law Act in Florida, disqualification will be a matter of law.

Community Services Committee: Volunteer Just a Few Hours Out of Your Life and Make a Difference in the Life of Another

By Lara M. LaVoie

Since the time that Lisa Esposito and I became involved as co-chairs of the Community Services Committee (CSC) almost two years ago, I have been humbled and amazed at the dedicated group of volunteers I have had the opportunity to work with on our numerous charity events. Amid the stress and time commitments of life, these volunteers have taken time out to truly make a difference in the lives of others. That is something the world so desperately needs right now.  

After the success of the Adopt a Veteran event in October, during which volunteers gave their time so generously to fulfill the wish lists and hearts of veterans in need, countless volunteers stepped up once again to support the CSC’s Elves for Elders event in December. The CSC (due in no small part to the unwavering dedication and commitment of my co-chair, Lisa Esposito) was able to get 250 elders “adopted” this year! Without volunteer elves, these wonderful and inspiring seniors would have had no presents under their trees/menorahs.   

Hopefully, you will be able to spare a few hours to volunteer at one of our upcoming heartwarming charity events. In March, the CSC will be participating in Dining with Dignity Week, in association with Trinity Café. The CSC’s friends and family spend a few hours at Trinity Café serving sit-down, three-course meals to Hillsborough County’s homeless, hungry, and working poor. Their mission is to restore a sense of dignity to the homeless and hungry, while serving a nutritious meal. This unique café sets its tables with tablecloths and silverware. Lunch is served on china; drinks are poured in glasses; and the conversation is cheerful and compassionate. We will need volunteers for any day that week to serve lunch, pour drinks, or just sit and share some one-on-one meal-time conversation! To learn more about Trinity Café, please visit: www.trinitycafe.org. 

The CSC’s most challenging but deserving event to date, a Pirate Plunder Party for the children living at A Kid’s Place in Brandon, will take place in May. We will be throwing another amazing Pirate Party so these children can forget about their troubles for a day. A Kid’s Place is a 60-bed facility for abused, neglected, or abandoned children ages 2 to 17. The facility uses a live-in house-parent model, which provides the children with a family-living atmosphere and a variety of services to meet their social, educational, medical, and psychological needs. Organizing and implementing this event requires a significant amount of time and resources. We really appreciate and need any and all help that you can provide! To find out more about A Kid’s Place, please visit: www.akidsplacetb.org. 

If you are interested in joining the CSC or volunteering for an upcoming event, please contact Lara LaVoie (lmlavoie11@gmail.com) or Lisa Esposito (lisa@lesposito.com).

Thank you for your generosity and support! 

Workers' Compensation Section: Expert Testimony Under the Workers’ Compensation Act

By Anthony V. Cortese

The First District Court of Appeals was presented with an issue of first impression regarding expert testimony in Giamo v. Florida Autosport, 2014 WL 6679290 (Fla. 1st DCA Nov. 26, 2014). This decision will have broad application.

Giamo involved an individual who the employer/carrier agreed was permanently and totally disabled. There had been a vehicle collision during a test drive of a customer’s car, which led to cervical injuries and cervical fusion and discectomy followed by ongoing pain and disability. The employer/carrier raised an apportionment defense and brought medical testimony that a non-work-related, prior automobile collision resulted in a pre-existing condition that supported a reduction in benefits. The pre-existing, non-work-related collision had resulted in an 8 percent permanent impairment rating for the cervical and lumbar spine before the work-related collision occurred. The employer/carrier did not argue that there should be an 8 percent apportionment reduction based on the prior impairment but that there should be a 51 percent apportionment reduction based on new medical testimony.

The judge of compensation claims found that there had been a pre-existing condition, and the district court affirmed on that issue. However, the district court reversed and remanded on the finding that the employer/carrier had established the proper degree of apportionment by admissible expert testimony. It was held that since 2013, when the Florida Legislature modified section 90.702, Florida Statutes, to adopt the standards set in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), expert testimony has to be more than pure opinion to be admissible and adequate to support a favorable finding. The Daubert standard was held to apply in workers’ compensation cases, requiring the expert testimony to be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) a reliable application of the principles and methods to the facts of the case. 

In Giamo, when the doctor whose opinion was relied upon to sustain apportionment “was asked how he arrived at the percentages attributable to Giamo’s pre-existing condition and those attributable to the workplace injury, he explained that ‘when I was asked and thought about it, that is the answer I came up with.’” Id. The court declined to further elaborate on what is needed to meet the standard but held that the testimony here was inadequate to support an affirmative defense. The expert’s opinion here gave no basis whatsoever for the apportionment percentages, which is not acceptable under the new standard.

What this means for future cases is that experts will have to better explain the basis and reasoning for the percentages of medical causation attributed to various causes in order to survive a Daubert challenge. The question of exactly how the standard is to be applied to doctors and other experts is yet to be determined in workers’ compensation cases, but this is a new standard that will have to be considered and interpreted in future cases.

Appellate Practice: Harmless Error Redefined

By Ezequiel Lugo

The harmless error standard applicable to civil cases has changed. Late last year, the Florida Supreme Court held that an error is harmless if “the error complained of did not contribute to the verdict” or “there is no reasonable possibility that the error complained of contributed to the verdict.” Special v. W. Boca Med. Ctr., 2014 WL 5856384, at *1 (Fla. Nov. 13, 2014). This new test is a modified version of the standard from State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), that applies in criminal cases.

The Special test places the burden of proving harmless error on the beneficiary of an error. It also places an obligation on the appellate court to examine the entire record and to focus on the effect of an error on the fact-finder. The court cannot focus solely on the outcome of a case to decide whether an error is harmless. An error is harmful unless the beneficiary of the error proves there is no reasonable possibility that the error contributed to the verdict. The harmless error analysis from Special is concerned with the process of arriving at a result and is not limited to the result itself.

The Special test supersedes the earlier harmless error standard in civil cases that applied in the Second District. The Second District Court of Appeal had previously formulated a test that focused only on the result: An error required reversal only if it was “reasonably probable that a result more favorable to the appellant would have been reached if the error had not been committed.” Damico v. Lundberg, 379 So. 2d 964, 965 (Fla. 2d DCA 1979). The Damico standard differs from the Special test in two ways: (1) Damico focused on the effect of an error on the result regardless of any effect on the fact-finder, and (2) a reversal under Damico required a “reasonable probability” instead of the mere “reasonable possibility” from Special.

At first blush, the Special test may increase the number of reversals. Appellate courts will now reverse when an error affects the fact-finder, even if the error had no impact on the result. And appellees will have to meet the “reasonable possibility” standard derived from DiGuilio, which is based on the higher burden of proof in criminal cases and reflects “the strictest formulation of the harmless error test.” Special, 2014 WL 5856384, at *16 (Pariente, J., concurring in part and dissenting in part). A case will now be reversed if there is any “reasonable possibility” that the error contributed to the verdict.


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

Marital & Family Law: Alberto Romero (1975 - 2015)

By Amber Boles, Courtney Bowes, and Natalie Baird

There is a saying: “It’s not the years in your life but the life in your years.” Often we hear this when we are mourning the loss of someone who was taken too soon, who did not get the chance to rack up enough years. The Marital & Family Law Section was hit hard this year with the unexpected passing of Alberto Romero. He was loved and respected by all and lived life to its fullest, savoring every one of the few years he had while making a memorable impact on our community.

One of the most difficult tasks as a family law attorney is to be professional while advocating for our clients given the high emotions most cases involve. Alberto was seen by his peers as always being professional, courteous, and displaying the utmost of ethics in every case he handled. He was a great lawyer, going the extra mile to become board certified. No case was too difficult, and he always took the challenge. He was a mentor to so many of us and was often consulted by his colleagues regarding issues in family law cases.

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

He was a great friend to many of us, never too busy to take a phone call or chat about an issue or problem you may have had – both professional and personal. He was trustworthy, and you knew it the minute you met him. Those of us who were close to him remember his contagious laughter. We remember his impeccable and classy style. He always had a positive attitude, and when we were stressed or sad, he knew what to say to help us get through that emotion. Alberto was very special, and he made each one of us feel very special as his friend.

It can never be said that Alberto didn’t “live.” Alberto loved to travel and experience culture. He was never afraid to go to a new place, meet new people, try new cuisine. He lived his life to the fullest and is an example to us all. He never let the job get in the way of truly living and doing the things he loved with those he loved. Alberto was one of a kind. He will truly be missed, not only as a colleague, a great family law attorney, but also a great friend. He leaves a void in our community that cannot be filled. We will forever remember Alberto.

Special Feature: An Interview with the Hon. Susan C. Bucklew

By Michael S. Hooker

Q. Judge, there are probably those who have appeared before you who are not at all familiar with your background. Can you tell us a little about where you grew up and went to school?

A. Yes. I grew up in Tampa. I was actually born in Seminole Heights and raised on Clifton Street. I went to public schools: Seminole Elementary, Sligh Junior High, and Hillsborough High School. I graduated from Hillsborough in 1960.

Q. Where did you go to college?

A. Went to Florida State. 

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

A. I taught for a total of five years. I was an English major and enjoyed the English classes. I love to read. Always have. When I got to be a senior, my parents said to me, “Now, what are you going to do when you graduate?” And that was a valid concern because I wasn’t really sure what I would do with an English degree. So I took enough education courses to be able to teach. I came back to Tampa the last semester of my senior year and interned at Plant High School and was then offered a job at Plant High School. 

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

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

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

A. When I was appointed in 1982, Hillsborough County had nine county judges, and I was the only woman. In 1986, I was appointed circuit judge, the only woman out of about 22 circuit judges. I look back at both with fondness; I was never uncomfortable. I might have been treated differently in some ways, but I do not recall feeling discriminated against because I was a female. Overall, it was a smooth transition. 

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

A. Absolutely. When I graduated from law school, I went to work for Jim Walter Corporation and was lucky to have a boss who became a mentor ― Jim Kynes. I remember when I was appointed to the county court, among the pieces of advice he gave me ― because he was good at giving advice ― was, “You better not screw up because if you screw up, there won’t be another female judge for a long time.” There still wasn’t another female judge for quite a while, but I don’t think it was because I screwed up. 

Q. You served in the state court system for about 10 years and then were appointed by President Clinton to the federal district court bench in 1993. Having served extensively on both the state and federal bench, in terms of the day-to-day administration of cases, what would you say are the biggest differences?

A. I have a friend who describes the differences in the federal court and the state court like this: Walking into a state court is like walking into a circus. For example, in criminal court, at any one time, you may have a number of public defenders and defense attorneys, a number of prosecutors, spectators, and many defendants both in and out of custody. The judge is the ringmaster. Whereas, when you come to federal court, it’s like walking into a library. It is quiet and a little intimidating. There might be two attorneys, perhaps the parties or a defendant and the judge.  I think the circus and the library is a pretty good comparison.

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

A. I think the best lawyers are prepared, and when I say prepared, that’s not just coming to court and making an oral presentation. That means spending the time necessary to answer the judge’s questions or anything opposing counsel might bring up. Also, the best lawyers are professional. They treat opposing counsel well, treat the judge well, and treat the courtroom personnel well. 

Q. What are some of the difficulties facing the judiciary that you wished lawyers who appear before you better understood? 

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

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

A. It has been an enjoyable, gratifying experience to watch the Inns of Court movement grow across the United States and in the Tampa area. It has been a fun experience for me, or I would not have stayed in for so long. The Inns of Court experience is so important for young lawyers because it gives them an opportunity to interact with experienced lawyers and judges on an informal basis, have dinner with them, play games with them, and plan programs with them. 

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

A. Yes, some. It has been six years since I took senior status. For me, it has been a work in progress. In the beginning, I did the same thing that I did as an active judge, but I have gradually cut down so that now I take a partial civil caseload and a full criminal caseload. I probably should cut down more than I have, but I haven’t because I still enjoy it. I still enjoy trying cases. I still enjoy the intellectual process. If I didn’t, I wouldn’t be here. 

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

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

Q. You mentioned earlier that you love to read as well. What’s the last book that you read that you really enjoyed?

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

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

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

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

A. I guess the opportunity as a federal judge to work with law clerks, to watch them grow and to share their excitement in the law. Sometimes I think we forget how fortunate we are to have such an interesting profession. 

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

A. As fair, as approachable, as someone who did not take myself too seriously, and as a judge who you and other lawyers as well as my family and friends could be proud of. 

Roasts to Remember

Fabulous food, festive drinks, fun, and a few pigs have all played a part in making the HCBA’s Judicial Pig Roast/Food Festival & 5K Pro Bono River Run a success. The HCBA hosted its 1st Annual Barrister Bash Pig Roast 11 years ago on April 3, 2004. From its inception, the event was a hit with more than 400 attendees and 22 food booths. Prizes for “Best Pig Slop” and “Best Pigsty” were awarded at the first Pig Roast and made for even hungrier competition year after year. The first winners of the “Best Pig Sty” award went to Professional Placement Services for Mama Rosa’s Meatballs (Cerese Taylor, Christina Moore & Susan Etheridge). The first winners of the “Best Pig Slop” award went to Judges Raul Palomino, Manny Lopez, Ed Bergmann, Robert Foster, Debra Behnke, Jack Espinosa, Ralph Stoddard, and Walter Heinrich.

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

The Pig Roast itself evolved from the first Barrister Bash Pig Roast in 2004 to the Judicial Pig Roast 2005. Then, after eight years of endless misrepresentation complaints from the other farm animals, in 2013 the event was officially named the Judicial Pig Roast/Food Festival.  

Although the Pig Roast and 5K have experienced many changes over the years, one thing has remained the same: the fun that HCBA members have when surrounded by good food and good company. The HCBA appreciates all of its members who have helped make this event a success over the years. We look forward to seeing you at the 12th Annual Judicial Pig Roast/Food Festival & 5K Pro Bono River Run on March 21!

State Attorney's Message: The Not-So-Clean Getaway

By Mark A. Ober

Juror expectations have risen dramatically with the popularity of forensic evidence television programming. In certain cases, the courtroom does not disappoint. The field of forensic science is rapidly expanding and innovative. Although it remains true that nothing beats good detective work, investigators today routinely turn to science when catching criminals. Forensic investigation is the art of discovering hidden clues left by a perpetrator. Although sophisticated criminals sanitize the crime scene, evidence often remains, and clues can be gleaned through the examination of blood spatter, materials analysis, and the use of advanced equipment such as laser beams.

Long before the terms “forensic evidence” and “crime scene investigator” were coined, detectives had discovered the evidentiary value of fingerprints. No two people, not even identical twins, have the same fingerprint. It is also impossible to change a fingerprint. The FBI established a national repository for fingerprint records in 1924, filing prints lifted from crime scenes according to major pattern. At the time, law enforcement could obtain only patent prints, those visible to the naked eye. A criminal can easily remove patent prints. Latent fingerprints are not readily observable and can be easily missed, but they remain behind to identify, and perhaps to convict, the perpetrator. Today, these prints are discovered with the use of electronic, chemical, and physical processing techniques that permit the visualization of invisible latent prints.

In homicide cases, prime forensic evidence is gained during an autopsy. The corpse itself is a crime scene yielding critical evidence. The autopsy may reveal the entry and exit wound of a penetrating weapon, which can be crucial evidence in supporting or rebutting a claim of self-defense. The presence of defensive wounds on a victim’s body is useful in establishing a defendant as the aggressor. Pathologists examine bodily organs and fluids to yield evidence of poisoning, drug ingestion, or malnourishment.

When the crime scene is saturated with blood, a serologist may be able to scientifically reconstruct the crime. Blood is subject to gravity, and the pattern of the blood left behind can be of great evidentiary value. The final resting place of the homicide victim may not be the location where he or she was attacked. By identifying the location of the initial attack, investigators can search this area for additional clues. This location may yield additional biological evidence necessary to establish the identification of the killer, as well as non-biological evidence such as shoe prints or weapons. When multiple stab wounds have been inflicted to the same bodily area, it is difficult to determine the precise number of stab wounds. Each time a weapon is drawn back, blood flies from the weapon, leaving a cast-off stain. A serologist will study the pattern of cast-off stains to help determine the number of strikes. This evidence may be critical in proving premeditation or self-defense.

These forensic tools are often an important part of a successful prosecution. Our office will continue to use these methods to seek justice in the courtroom.

Diversity Committee: Charging Juveniles as Adults and its Disproportionate Effect on Minority Children

By Stevie Swanson

Florida is one of 15 states (plus the District of Columbia) with direct file statutes. Under Florida’s direct file law, prosecutors have the ability to try juveniles as adults. § 985.557, Fla. Stat. (2014). The direct file process allows a state attorney to use his or her “judgment and discretion” to transfer children age 16 or 17 (at the time of the alleged offense) to adult court when the public interest requires that “adult sanctions be considered or imposed.” Id.

Not everyone is aware that prosecutors wield this power. Approximately 98 percent of juvenile cases transferred to adult court in Florida are a result of the direct file statute. Human Rights Watch, supra note 1, at 19. Florida has the dubious distinction of having transferred more children into the adult system than any other state.  This is problematic for several reasons.

The statistical data indicates that the discretionary nature of Florida’s direct file statute has a disturbing, disproportionate impact on minority children. Human Rights Watch analyzed Florida data from fiscal years 2008-09 to 2012-13. It discovered that, while only 27.2 percent of arrested youth were black males, 51.4 percent of the youth transferred into the adult system were black males. Human Rights Watch, supra note 1, at 29 tbl.2. By comparison, during the same time period, 28 percent of the total youth arrested were white males, but only 24.4 percent of them were direct filed. Id.

The Thirteenth Judicial Circuit (Hillsborough County) had the highest transfer of children to adult court from fiscal years 2009-10 to 2012-13. For the 2013-14 fiscal year, the Thirteenth Circuit was ranked third in the state behind the Seventeenth and Sixth Judicial Circuits. In the Thirteenth Circuit, 36.3 percent of the youth arrested in the fiscal year 2013-14 were black males, while 56.4 percent (57/101) of the youth transferred to adult court were black males. During the same time period in the Thirteenth Circuit, 20.1 percent of the youth arrested were white males, and only 12.9 percent (13/101) of those direct filed were white males.

Transferring juveniles into the adult system is both detrimental to the public and devastating to the children transferred. It is harmful to the public because “transferring youth to the adult criminal system is more likely to aggravate recidivism than to stop it.” Children remaining in the juvenile system are less likely to commit crimes upon release. Juveniles in adult facilities are at increased risk of being victimized. Children in adult prisons are more likely to be physically and sexually assaulted than those in juvenile facilities.

Juveniles also lose the ability to receive much needed services when incarcerated in adult facilities. For example, children in the juvenile system receive educational and vocational services, behavioral and mental health treatment services, and substance abuse and sex offender treatment services, when needed. Circuit Judge Ralph Stoddard, Direct File Transfer to Adult Court: Juvenile Sanctions for Youth Prosecuted as Adults, Powerpoint presentation at Conference on Continuing Judicial Education for Circuit Court Judges in August 2013. Denying these vital educational and rehabilitative services to children transferred into the adult system makes them less productive members of society upon re-entry from the penal system.

The impact of being sentenced as an adult has lifelong ramifications. Children who have been transferred to the adult system face impediments to voting; obtaining gainful employment, public assistance, and driver’s licenses; and preventing access to their criminal records. It is encouraging that direct file numbers are on the decline and that the Thirteenth Circuit is no longer ranked first in the state for direct files, but it is deeply troubling that the percentage of minorities direct filed is increasing. If, as they say, the children are our future, then shouldn’t we be encouraging their rehabilitation through the juvenile system, rather than dooming them to victimization and a lifetime of lost potential in the adult system?

Executive Director's Message: ABA President-Elect Paulette Brown Encourages Inclusion at Diversity Luncheon

By John F. Kynes

A product of segregated schools in Baltimore, American Bar Association President-Elect Paulette Brown says the only lawyer she knew growing up was TV’s Perry Mason. So she says it will be a little “surreal” when she makes history and is installed this summer as the first African-American woman to become president of the ABA. Brown also will be only the sixth female president in the ABA’s 137-year history.

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

In her remarks, Brown talked about the need for greater diversity and inclusion in the legal community, the values instilled in her as a child that have helped her along in her career, and her priorities as incoming president of the ABA. Over the years, Brown has held a variety of leadership positions within the ABA, and she has been recognized by the National Law Journal as one of “The 50 Most Influential Minority Lawyers in America.”

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

Law firms are viewed as more progressive by young lawyers and students when they make people from diverse backgrounds feel accepted and included, she said. And firms have a responsibility to provide real opportunities ― economic and otherwise ― that will make diverse employees want to remain. It’s up to firm managers to help bring about greater diversity because “those in power are those who can effectuate change,” Brown said.

She also referenced recent events in the news dealing with race, such as the police shooting case in Ferguson, Mo. “Even with all the tensions going on … more people are coalescing together for the same goals, and there is beginning to be a dialogue in this country about race relations,” Brown said. “It’s a difficult subject to talk about.”

Brown encouraged those in attendance to participate in the national discussion about race because “talking aids us in being diverse, and not just in the legal community, but society as a whole.”

The only one of four siblings to attend college, Brown said the values ingrained in her at an early age ― such as working hard to succeed, treating others with respect, and giving back ― have remained with her throughout her career.

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

One of her main initiatives will be what she calls “Main Street ABA.” In her travels around the U.S. during her term, Brown says she intends to go to places that ABA presidents traditionally don’t visit, such as Boys & Girls Clubs, so she can encourage young people and serve as a role model.

***

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

Meanwhile, Anthony Martino, president of the Young Lawyers Division, announced two YLD awards. The 2014 YLD Outstanding Jurist Award went to Thirteenth Circuit Court Judge Emily Peacock, and the 2014 YLD Outstanding Young Lawyer Award went to Jacqueline Simms-Petredis of Burr & Forman.

Congratulations to all these outstanding award winners.

See you around the Chet.

Tax Law: Help Low-Income Clients Resolve Problems with the IRS

By Nancey G. Penner

Bay Area Legal Services has operated a Low Income Taxpayer Clinic (LITC) since 2002 with funding provided by the Taxpayer Advocate Service of the Internal Revenue Service. The LITC provides legal services to all eligible residents of Hillsborough and Pasco counties.  Individuals who are at or below 250 percent of the poverty level are eligible, and in compelling circumstances, services can be provided to clients above that level. If you encounter clients who are having problems with the IRS, please have them contact us directly at (813) 232-1343.  

When the IRS finds a problem with a return, its first notice gives the taxpayer an opportunity to send more documentation to explain why the taxpayer believes the tax return as prepared is correct. If the taxpayer ignores this notice or fails to provide sufficient documentation, the IRS issues a Notice of Deficiency. This second notice gives the taxpayer 90 days to file a petition in Tax Court. An appeals officer and/or IRS counsel will contact the taxpayer prior to the court hearing to try to come to agreement on some or even all of the issues in the case. Instead of Tax Court, the taxpayer can elect to go through an appeals process, which is designed to be fair and impartial to both the IRS and to the taxpayer. If the appeals process does not resolve the issues, the taxpayer can request mediation as long as the case is not filed in Tax Court.  

Unfortunately, some taxpayers do not respond to these initial contacts from the IRS, nor do they seek assistance until after the IRS places a lien or levy on their income and/or assets. Some will qualify for “Currently Not Collectible” status due to low income and lack of resources. Once the IRS agrees that the taxpayer cannot pay the debt at this time, the IRS suspends collection activities, but the interest and the debt continue to grow. Another option is to submit an Offer in Compromise documenting all assets and resources and asking the IRS to agree to allow the taxpayer to pay less than the total amount of the debt in installments within two years. If the IRS accepts the offer and the taxpayer makes all of the payments, then the debt is considered paid. If the IRS rejects the offer, the taxpayer still has the option of requesting mediation. Taxpayers can also ask the IRS to put them on an installment agreement allowing them up to six years to pay back the tax debt and interest.     

Most clients we see at the LITC feel overwhelmed by their tax problems and appreciate the assistance we provide. The LITC welcomes members of the Bar who would like to assist low-income residents on a pro bono basis. For attorneys who do not practice tax law, we plan to offer a training session with members of the HCBA Tax Law Section as instructors. For more information about volunteering, go to www.bals.org and click on the “Give Help” tab to register to become a volunteer. 

YLD’s Outstanding Young Lawyer and Jurist Awards

By Anthony "Nino" Martino

In the September issue of this magazine, I wrote about the opportunities available through the Young Lawyers Division and encouraged all young lawyers to get more involved professionally to help us make a difference in Hillsborough County. In this issue, I would like to recognize two amazing local Bar members whose activities and service have furthered the interests of the legal profession, especially relating to young lawyers. The YLD wishes to again recognize this year’s winners of the Outstanding Young Lawyer Award and the Robert W. Patton Outstanding Jurist Award. 

This year’s YLD Outstanding Young Lawyer Award recipient is Jacqueline Simms-Petredis, who is being recognized as exemplary in the area of professionalism and in the practice of law in her field of practice. Jacqueline performed service to the community on a personal level and has been actively involved in the HCBA’s YLD, currently serving as the immediate past-president. Jacqueline was selected as the award winner in recognition of the difference she has made in the practice of law and the community through her ethics and conduct.

This year’s Outstanding Jurist Award recipient is Judge Emily Peacock, who is being recognized as an outstanding jurist with an excellent reputation for sound judicial decisions and an unblemished record for integrity as a lawyer and judge. Judge Peacock is recognized by the YLD members as highly qualified, active in Bar-related activities, and showing a concern for and willingness to assist young lawyers while demonstrating a respect for their abilities. Judge Peacock actively serves as a mentor for young lawyers through a number of organizations and is a previous recipient of the Distinguished Judicial Service Award, which recognizes a specific commitment to support pro bono legal services. 

The YLD would like to thank Jacqueline Simms-Petredis and Judge Emily Peacock for their substantial contributions to the legal profession, the HCBA YLD, and the Hillsborough County community. The excellence demonstrated by both recipients provides an example that we should all aspire to in our own professional development.

Recent & Upcoming YLD Events: 

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

Editor's Message: Setting the Bar High

By Ed Comey

My first contested hearing as a lawyer was before Judge James Arnold. It was a summary judgment hearing, although not a particularly complicated one. Not having argued a summary judgment motion before, I launched into what I thought was a brilliant — and, as it turns out, wholly unnecessary — exposition on the summary judgment standard shortly after making my appearance. I don’t recall precisely what he said, but Judge Arnold’s puzzled look had “this guy can’t be serious” written all over it. Before I could finish, Judge Arnold interrupted me and patiently explained how it would be more effective to focus on my substantive arguments than a legal standard the court was more than familiar with.

Although not quite the reception I was aiming for, it was one I greatly appreciated then and have come to appreciate even more over the years. Looking back, I suppose Judge Arnold could have let me ramble on and then ruled in my favor (which he eventually did) in spite of my argument. I would have felt better about the hearing, of course, but that wouldn’t have helped my professional development. Instead, the now-retired judge used the hearing as a teaching opportunity for an obviously young and inexperienced attorney, which in the long run, made me a more effective lawyer. 

In many ways, it reminded me of my high school algebra teacher who once held me after class to tell me my B+ grade was not going to cut it because he had higher expectations for me. I didn’t appear in Judge Arnold’s courtroom that often after that first hearing, but when I did, that was how I always viewed him. He was always in control of the courtroom and had high standards for the lawyers who appeared before him. Because of that, lawyers knew they would have a fair opportunity to present their case or argument. At the same time, Judge Arnold was always very gracious to others.

I understand it was not unusual for a police officer to show up at Judge Arnold’s house in the early morning hours to have a search warrant signed, only to be invited in for a cup of coffee. Court reporters often talked about how Judge Arnold made sure to take breaks during trial — not an easy thing for a busy trial judge to do — so they would be more comfortable. And he always made sure to thank jurors for their service. 

Over the years, Judge Arnold has had a number of high-profile cases in Tampa. In the late 1980s, he presided over a trial involving abortion protesters that was so large it had to be held in the Tampa Performing Arts Center. More recently, he presided over the Bubba the Love Sponge trial, known more for what happened outside the courthouse than what happened in it. There is a tendency, it seems to me, to remember judges for the big, high-profile cases they presided over. As for me, I’ll remember Judge Arnold for the high standards he set for lawyers who appeared before him, which will have a positive impact on this community for years to come. 

HCBA President's Message: Magna Carta Madness

By Benjamin H. Hill IV

As a college sports fan, one of my favorite traditions is the annual NCAA college basketball tournament. Known as “March Madness,” this short yet exciting season is once again upon us.  As such, it is hard for anyone to avoid discussions involving brackets, chalk, top seeds, Cinderella teams, buzzer beaters, and other roundball nomenclature. Inevitably, one will hear hoops aficionados ― often coaches or sportscasters ― use the phrase “survive and advance” in reference to how teams approach each round and plan for tournament success.

While the tourney has been played for nearly 80 years, a far more significant milestone is also upon us. This year marks the 800th anniversary of Magna Carta. Perhaps not as fun to discuss as a bracket-buster game, Magna Carta’s significance should not be overlooked ― especially by us lawyers. Indeed, Magna Carta is still widely considered to be one of the greatest political and legal sources of support for any modern-day, free society. Put differently, the legal thoughts and principles in Magna Carta have arguably “survived and advanced” over the years as well as any set forth in a single document.

As there is not enough space here for a deep dive into Magna Carta’s history, one will generally recall that Magna Carta was the “Great Charter” (did not need six years of Latin for that), which King John was compelled to sign at Runnymede in 1215 to assure local barons certain temporary property rights and protections. Although Magna Carta was modified and reaffirmed a few times over the next couple of centuries, it remained largely between the king and the barons. However, in the 17th century, Sir Edward Coke, an English barrister and judge, reinterpreted Magna Carta and used it to defend against certain oppressive tactics by the monarchy. This interpretation led to a more widespread application of Magna Carta such that it extended rights and freedoms to all English people.

When these English citizens and their children relocated and established colonies in America, the principles of Magna Carta survived and advanced to this land. Amid this country’s development and growth over the ensuing decades, Magna Carta’s influence not only survived but eventually advanced to all Americans. These and other principles traceable to Magna Carta are now embedded in the United States Constitution, the Bill of Rights, and, obviously, much of our case law.

Bar associations, historical societies, and countless other organizations around the globe are celebrating the 800th anniversary of Magna Carta. In fact, the American Bar Association is sponsoring a host of commemorative activities. If you are interested in learning more about them, please visit the ABA’s website at www.americanbar.org, entering “Magna Carta” as a search term. If the history buff in you wants to learn more about the origins, development, and impact of Magna Carta, I recommend that you visit www.magnacarta800th.com.

The HCBA is joining in the celebration of Magna Carta’s 800th anniversary as our theme for this year’s Law Week (March 16-20) is “Magana Carta: Symbol of Freedom Under Law.”  I thank our Law Week Committee ― led by Co-Chairs Amy Nath, Maja Lacevic, and Alex Haddad ― which has worked so hard to assure another fabulous week this year.

Finally, as “respect for the law” is one of the principles behind our HCBA mission themed “Operation Respect and Service,” let us all recognize and be thankful for the enduring effects that Magna Carta continues to have on our freedoms, society, and ways of life. Surviving and advancing for 800 years now, perhaps the least we could do is to indulge in a little “Magna Carta Madness.

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

By Alexandra Haddad

Lord Neuberger, president of the Supreme Court of the United Kingdom, once said, "Where justice is concerned, the principles of Magna Carta are a reference to which we should always return to ensure that we are proceeding in the right direction."  

On June 15, 1215, King John of England was forced to affix his seal to Magna Carta by a group of barons who wanted to ensure their rights and property against a tyrannical king. Although the interests of the common man were not at the forefront of the drafters' minds, there are two principles expressed in Magna Carta that resonate to this day:

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

"To no one will we sell, to no one will we deny or delay, right or justice."

During the American Revolution, Magna Carta served as an inspiration to act in liberty's defense. One of those rights is that no person, no matter how powerful, is above the law. Those rights guaranteed by Magna Carta were embedded into the laws of the colonists' states and later into the Constitution and Bill of Rights. Today, Magna Carta has taken root as an international symbol of the rule of law and as an inspiration for basic rights Americans hold dear, including due process, habeas corpus, trial by jury, and the right to travel.

This year's Law Week theme is "Magna Carta: Symbol of Freedom Under Law." As we approach the 800th anniversary of Magna Carta, Law Week's aim is to reflect on the importance of a citizen's most basic rights, the rule of law, and the challenges we still face in ensuring that all Americans have access to justice.  

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

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

To learn more about Law Week 2015 or volunteering, please contact Young Lawyers Division Law Week Committee Co-Chairs Amy Nath (anath@shrinenet.org), Maja Lacevic (Maja.Lacevic@csklegal.com), or Alex Haddad (ahaddad@burr.com).