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.
Saturday, May 30, 2015
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 FishA@flcourts.org.
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 FishA@flcourts.org.
Thank you for your service to the profession.
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 FishA@flcourts.org.
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 FishA@flcourts.org.
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.”
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)).
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 ― eallen@gibblaw.com or (813) 877-9222 ― or Debra L. Dandar ― Debra.Dandar@TampaBayElderLawCenter.com or (813) 282-3390.
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 ― eallen@gibblaw.com or (813) 877-9222 ― or Debra L. Dandar ― Debra.Dandar@TampaBayElderLawCenter.com 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 savager@cooley.edu or (813) 419-5100, Ext. 5153.
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 savager@cooley.edu 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!
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!
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