By Matt Luka
It is common in narcotics cases for police to field test a suspicious substance found during a pat-down or search. The United States Supreme Court has held that a chemical test that merely discloses whether a particular substance is a narcotic is not a "search" subject to Fourth Amendment protections. United States v. Jacobsen, 466 U.S. 109, 123-124 (1984). And a "seizure" of a small amount of the substance for testing is constitutionally reasonable. Id. at 125-26.
Locally, the reliability of field tests has been confronted in a series of reports by Gloria Gomez of Fox 13 News. Gomez recounts the stories of three citizens arrested on drug charges based on false field tests only to have lab results clear them months later. Scientists: Experiments show "dangerous" field drug test problems. (Fox 13 News television broadcast May 14, 2015), available at http://www.myfoxtampabay.com. Although having the charges dropped may have been a relief, there are severe consequences associated with mere fact of an arrest. A person's career and reputation can be irrevocably damaged, and an individual's arrest information often lives online long after the case is closed.
Gomez observed a series of false positive field tests by Dr. Omar Bagasra, the top research scientist at Claflin University, a lab recognized by the International Association of Chiefs of Police for forensic science excellence. Id. In Dr. Bagasra's experience, he doubts the accuracy of any field drug test. Id. Dr. Fredrik Whitehurst, an FBI forensic scientist for 16 years with a doctorate in chemistry, stated he has "no confidence at all in those test kits." Id. Punk rocker Don Bolles was once arrested for possessing GHB after a field test. Id. A state lab later determined it was soap. Id. Forensic Magazine published a similar article criticizing field drug tests titled Field Drug Tests Confuse Candy for Meth, Cause Serious Concern.
Field testing is used to support arrests, in probation revocation proceedings, in support of search warrants, and as evidence of guilt. In Smith v. State, 771 So. 2d 1189 (Fla. 5th DCA 2000), the defendant's drug paraphernalia conviction was supported only by the arresting officer's testimony that an item contained a residue that field tested positive and that the item was a device typically used as drug paraphernalia. Id. at 1192; see also Townsend v. State, 781 So. 2d 541, 542 (Fla. 5th DCA 2001).
The field test takes on greater importance when the field test uses up or destroys the sample during testing. The state must introduce the substance into evidence unless excused by its destruction during testing. Peterson v. State, 841 So. 2d 661, 662 (Fla. 4th DCA 2003) (citing G.E.G. v. State, 417 So. 2d 975, 977 n.2 (Fla.1982)). However, in Peterson, the court found the state "introduced the cocaine into evidence" where the state introduced a pipe that exhibited a blue color, and the officer testified that the blue color resulted from his test of cocaine. Id. Even if the narcotic is unavailable, sufficient evidence exists for conviction on a possession charge if a chemist or expert testifies that he or she tested the substance and the test yielded positive results. Fleming v. State, 82 So. 3d 967, 970 (Fla. 4th DCA 2011). The testimony of an arresting officer and an expert to establish the reliability of a field test could potentially meet that standard.
If you would like to contact Gloria Gomez to discuss one of your cases or would like more information on this topic, she can be contacted at gloria.gomez@foxtv.com.
Wednesday, September 30, 2015
Tuesday, September 29, 2015
Corporate Counsel: Covering the Basics on Cyber Insurance
By John W. Bencivenga
It seems that a week does not pass without a story concerning some type of cyber attack grabbing the headlines. In July, the Office of Personnel Management disclosed that hackers stole sensitive information about 21.5 million people in a breach of the federal government’s background-check database. In March, Primera Blue Cross announced that up to 11 million customers could have been affected by a cyber attack in which hackers accessed members' names, dates of birth, Social Security numbers, mailing and email addresses, phone numbers, and bank account information. In February, Anthem, one of the nation’s largest health insurers, said hackers breached a database that contained as many as 80 million records of current and former customers, as well as employees. As these stories continue to multiply, more companies are purchasing insurance policies to protect confidential data. Here are some basics involving cyber insurance policies.
1. Cyber insurance is a fairly new product. The first policies did not appear until the late 1990s. The relative “newness” of these types of policies has at least two implications. First, there are significant coverage differences. A company considering a cyber insurance policy needs to look carefully at the specific coverage offered, and because of the significant differences, comparison shopping by price may be difficult. Second, the market is constantly changing. As new claims are reported, new risks are analyzed. So what seems like a decent policy one year may not even be offered the next.
2. In general, there are two categories of risk and liability that cyber insurance covers. There is “first-party risk/coverage,” which protects against loss or damages that your company incurs because of a cyber attack. This would include forensic investigation coverage, physical damage or data loss/restoration coverage, business interruption coverage for your computer network, and losses based on stolen/ransomed data based on a breach. There is also “third-party risk/coverage,” which covers losses or damages that occur to a third party as a result of a data breach. This would include litigation expenses, crisis management expenses, and credit monitoring and notification costs and expenses. Typically, when analyzing risks, companies will divide risk into first- and third-party coverage and then focus on the specific risks in each category.
3. Next, a company must decide how much coverage is needed. Unfortunately, there is no consensus on how much coverage to obtain, what is an appropriate deductible, or even how to determine coverage liability. Some basic benchmarking data exists. For example, some studies indicate that over the past few years, the average organizational cost of a data breach of 100,000 records (or less) was about $6 million dollars. One simple method in determining coverage limits is to focus on the amount of sensitive records a company possesses, then multiply this count by some average cost per record figure. So, if your company estimates that an average cost to respond to a data breach is $250 per record, and your company has 100,000 confidential records, a $25 million policy limit may be appropriate.
4. Finally, do your homework before purchasing cyber insurance. A breach may go unnoticed for some time before a claim is made. Counsel should consider requesting retroactive coverage to cover unknown breaches that occurred before the policy inception date. Your company may also have limited cyber coverage under your CGL policy, crime policy, or technology errors and omission policy. Coordinating these coverages is important. Finally, read the fine print. Certain exclusions may be written too broadly for your needs, and given the fact that these policies are still evolving, it is important to learn exactly what is covered to ensure your risks are properly mitigated.
It seems that a week does not pass without a story concerning some type of cyber attack grabbing the headlines. In July, the Office of Personnel Management disclosed that hackers stole sensitive information about 21.5 million people in a breach of the federal government’s background-check database. In March, Primera Blue Cross announced that up to 11 million customers could have been affected by a cyber attack in which hackers accessed members' names, dates of birth, Social Security numbers, mailing and email addresses, phone numbers, and bank account information. In February, Anthem, one of the nation’s largest health insurers, said hackers breached a database that contained as many as 80 million records of current and former customers, as well as employees. As these stories continue to multiply, more companies are purchasing insurance policies to protect confidential data. Here are some basics involving cyber insurance policies.
1. Cyber insurance is a fairly new product. The first policies did not appear until the late 1990s. The relative “newness” of these types of policies has at least two implications. First, there are significant coverage differences. A company considering a cyber insurance policy needs to look carefully at the specific coverage offered, and because of the significant differences, comparison shopping by price may be difficult. Second, the market is constantly changing. As new claims are reported, new risks are analyzed. So what seems like a decent policy one year may not even be offered the next.
2. In general, there are two categories of risk and liability that cyber insurance covers. There is “first-party risk/coverage,” which protects against loss or damages that your company incurs because of a cyber attack. This would include forensic investigation coverage, physical damage or data loss/restoration coverage, business interruption coverage for your computer network, and losses based on stolen/ransomed data based on a breach. There is also “third-party risk/coverage,” which covers losses or damages that occur to a third party as a result of a data breach. This would include litigation expenses, crisis management expenses, and credit monitoring and notification costs and expenses. Typically, when analyzing risks, companies will divide risk into first- and third-party coverage and then focus on the specific risks in each category.
3. Next, a company must decide how much coverage is needed. Unfortunately, there is no consensus on how much coverage to obtain, what is an appropriate deductible, or even how to determine coverage liability. Some basic benchmarking data exists. For example, some studies indicate that over the past few years, the average organizational cost of a data breach of 100,000 records (or less) was about $6 million dollars. One simple method in determining coverage limits is to focus on the amount of sensitive records a company possesses, then multiply this count by some average cost per record figure. So, if your company estimates that an average cost to respond to a data breach is $250 per record, and your company has 100,000 confidential records, a $25 million policy limit may be appropriate.
4. Finally, do your homework before purchasing cyber insurance. A breach may go unnoticed for some time before a claim is made. Counsel should consider requesting retroactive coverage to cover unknown breaches that occurred before the policy inception date. Your company may also have limited cyber coverage under your CGL policy, crime policy, or technology errors and omission policy. Coordinating these coverages is important. Finally, read the fine print. Certain exclusions may be written too broadly for your needs, and given the fact that these policies are still evolving, it is important to learn exactly what is covered to ensure your risks are properly mitigated.
Sunday, September 27, 2015
Tax Law: The Never-Ending Story – Civil and Criminal Statutes of Limitations for Tax Fraud
By Matt Mueller
When is it safe? Clients with concerns about possible fraud on their tax returns from a prior year need to be aware of the pertinent statutes of limitations. This article provides a basic discussion of select civil and criminal statutes of limitations for tax fraud. On the civil side, the IRS may have three years, six years, or forever to assess a tax liability, along with corresponding penalties and interest, on a given tax return.
The general rule is that any tax “shall be assessed within 3 years after the return was filed.” I.R.C. § 6501(a). Under Section 6501(e), if the taxpayer omitted certain items from the return, such as more than 25 percent of gross income, the IRS has up to six years to assess the tax. An even more generous extension applies in cases of a “false or fraudulent return with the intent evade tax” or a willful attempt to evade tax. In both cases, the IRS can assess the tax “at any time.” I.R.C. § 6501(c)(1)-(2).
This exception to the three-year statute of limitations for assessment is intuitive where the taxpayer intentionally filed a fraudulent tax return. Having created a deceitful, and often convoluted, scheme to evade taxes, the taxpayer’s complaints about an unlimited period for assessment might ring hollow. A less intuitive and more problematic scenario arises when the tax return filed was fraudulent but the taxpayer did not personally know of the fraud. This could arise if a return preparer includes fraudulent items on a tax return without the explicit knowledge or consent of the taxpayer. It also could arise where a taxpayer, relying on advice from a tax professional, used a tax reduction strategy that was later determined by the IRS to be fraudulent.
Whether the IRS will be entitled to use the unlimited statute where the “fraud on the return” was perpetrated by a third party is currently unsettled. The government has taken the position in different forums that the unlimited statute should apply even where the fraud was committed by a third party. The government has prevailed with variations of this argument in Tax Court, Allen v. Commissioner, 128 T.C. 37 (2007), and in the Second Circuit, City Wide Transit, Inc. v. Commissioner, 709 F.3d 102 (2d Cir. 2013). Conversely, this argument has been rejected by the Court of Federal Claims. BASR Partnership v. United States, 113 Fed. Cl. 181 (Fed. Cl. 2013).*
From a criminal standpoint, the most common federal tax crimes have a six-year statute of limitations. I.R.C. § 6531. However, there are several events that could arguably extend the criminal statute well beyond six years after filing of the return. Those events include post-filing acts of evasion by the taxpayer or a conspirator, summons enforcement proceedings, government requests for foreign evidence, and, in some cases, acts of Congress declaring war or authorizing the use of military force.
* Note: The government appealed the BASR ruling to the Federal Circuit, where the parties presently await a ruling.
When is it safe? Clients with concerns about possible fraud on their tax returns from a prior year need to be aware of the pertinent statutes of limitations. This article provides a basic discussion of select civil and criminal statutes of limitations for tax fraud. On the civil side, the IRS may have three years, six years, or forever to assess a tax liability, along with corresponding penalties and interest, on a given tax return.
The general rule is that any tax “shall be assessed within 3 years after the return was filed.” I.R.C. § 6501(a). Under Section 6501(e), if the taxpayer omitted certain items from the return, such as more than 25 percent of gross income, the IRS has up to six years to assess the tax. An even more generous extension applies in cases of a “false or fraudulent return with the intent evade tax” or a willful attempt to evade tax. In both cases, the IRS can assess the tax “at any time.” I.R.C. § 6501(c)(1)-(2).
This exception to the three-year statute of limitations for assessment is intuitive where the taxpayer intentionally filed a fraudulent tax return. Having created a deceitful, and often convoluted, scheme to evade taxes, the taxpayer’s complaints about an unlimited period for assessment might ring hollow. A less intuitive and more problematic scenario arises when the tax return filed was fraudulent but the taxpayer did not personally know of the fraud. This could arise if a return preparer includes fraudulent items on a tax return without the explicit knowledge or consent of the taxpayer. It also could arise where a taxpayer, relying on advice from a tax professional, used a tax reduction strategy that was later determined by the IRS to be fraudulent.
Whether the IRS will be entitled to use the unlimited statute where the “fraud on the return” was perpetrated by a third party is currently unsettled. The government has taken the position in different forums that the unlimited statute should apply even where the fraud was committed by a third party. The government has prevailed with variations of this argument in Tax Court, Allen v. Commissioner, 128 T.C. 37 (2007), and in the Second Circuit, City Wide Transit, Inc. v. Commissioner, 709 F.3d 102 (2d Cir. 2013). Conversely, this argument has been rejected by the Court of Federal Claims. BASR Partnership v. United States, 113 Fed. Cl. 181 (Fed. Cl. 2013).*
From a criminal standpoint, the most common federal tax crimes have a six-year statute of limitations. I.R.C. § 6531. However, there are several events that could arguably extend the criminal statute well beyond six years after filing of the return. Those events include post-filing acts of evasion by the taxpayer or a conspirator, summons enforcement proceedings, government requests for foreign evidence, and, in some cases, acts of Congress declaring war or authorizing the use of military force.
* Note: The government appealed the BASR ruling to the Federal Circuit, where the parties presently await a ruling.
Thursday, September 24, 2015
Construction Law: A Defect without A Defense - Chapter 558 and CGL Policies
By Michael G. Rothfeldt
A contractor receives a letter in the mail, and his heart drops. Titled as a Notice of Claim for Construction Defect Pursuant to chapter 558, Florida Statutes, the letter alleges that the contractor’s work on a particular project is defective. The notice explains the contractor’s statutorily prescribed options for responding. No suit has been filed, though the nature of the letter suggests suit is imminent. Remembering the commercial general liability (CGL) policy he purchased, the contractor tenders the chapter 558 notice to his insurer and demands defense and indemnity. The insurer declines, stating that the case was “not in suit.” In response, the contractor sues the insurer for breach of contract and a declaration that insurer has a duty to defend the contractor. The Southern District of Florida recently considered this matter of first impression in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., 2015 WL 3539755 (S.D. Fla. June 4, 2015). The insurer in Altman argued that the chapter 558 notice did not trigger the duty to defend under the pertinent CGL policy because the case was “not in suit.” On the contractor’s motion for partial summary judgment on the duty to defend, the court examined whether chapter 558 barred the insured’s claim and whether the policy provided coverage.
The insurer compared chapter 558 to similar statutes nationwide to support its argument that a chapter 558 notice cannot constitute an insurance claim. Rejecting the insurer’s argument, the court pointed to the statute’s language and concluded that chapter 558 did not bar the insured’s claim because section 558.004(13), Florida Statutes, provides that provision of the notice is not a claim ― it does not say that the notice itself is not a claim. This language differed from that contained in other states’ construction-defect notice statutes that expressly precluded such a notice from triggering coverage.
The court turned next to the parties’ insurance policy to determine whether the chapter 558 notice was a “suit” that would trigger the insurer’s duty to defend. Because the policy defined “suit” as the undefined term “civil proceeding,” the parties and the court looked to dictionary definitions. Relying on definitions from the edition of Black’s Law Dictionary in publication when the policies were in effect, the court concluded that a “civil proceeding” requires a forum and a decision maker. Because chapter 558 provides neither, its alternative dispute resolution mechanism did not constitute a “civil proceeding” and thus was not a “suit” under the policy. The chapter 558 notice therefore did not trigger the insurer’s duty to defend, and the court accordingly granted summary judgment in favor of the insurer.
In sum, Altman teaches that while a notice pursuant to chapter 558 can constitute a claim for insurance, the alternative dispute resolution mechanism in chapter 558 is not a “civil proceeding” and thus does not trigger an insurer’s duty to defend under a typical CGL policy. Furthermore, when defining a policy’s terms, the dictionary edition in publication during the policy’s effective date should be used.
A contractor receives a letter in the mail, and his heart drops. Titled as a Notice of Claim for Construction Defect Pursuant to chapter 558, Florida Statutes, the letter alleges that the contractor’s work on a particular project is defective. The notice explains the contractor’s statutorily prescribed options for responding. No suit has been filed, though the nature of the letter suggests suit is imminent. Remembering the commercial general liability (CGL) policy he purchased, the contractor tenders the chapter 558 notice to his insurer and demands defense and indemnity. The insurer declines, stating that the case was “not in suit.” In response, the contractor sues the insurer for breach of contract and a declaration that insurer has a duty to defend the contractor. The Southern District of Florida recently considered this matter of first impression in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., 2015 WL 3539755 (S.D. Fla. June 4, 2015). The insurer in Altman argued that the chapter 558 notice did not trigger the duty to defend under the pertinent CGL policy because the case was “not in suit.” On the contractor’s motion for partial summary judgment on the duty to defend, the court examined whether chapter 558 barred the insured’s claim and whether the policy provided coverage.
The insurer compared chapter 558 to similar statutes nationwide to support its argument that a chapter 558 notice cannot constitute an insurance claim. Rejecting the insurer’s argument, the court pointed to the statute’s language and concluded that chapter 558 did not bar the insured’s claim because section 558.004(13), Florida Statutes, provides that provision of the notice is not a claim ― it does not say that the notice itself is not a claim. This language differed from that contained in other states’ construction-defect notice statutes that expressly precluded such a notice from triggering coverage.
The court turned next to the parties’ insurance policy to determine whether the chapter 558 notice was a “suit” that would trigger the insurer’s duty to defend. Because the policy defined “suit” as the undefined term “civil proceeding,” the parties and the court looked to dictionary definitions. Relying on definitions from the edition of Black’s Law Dictionary in publication when the policies were in effect, the court concluded that a “civil proceeding” requires a forum and a decision maker. Because chapter 558 provides neither, its alternative dispute resolution mechanism did not constitute a “civil proceeding” and thus was not a “suit” under the policy. The chapter 558 notice therefore did not trigger the insurer’s duty to defend, and the court accordingly granted summary judgment in favor of the insurer.
In sum, Altman teaches that while a notice pursuant to chapter 558 can constitute a claim for insurance, the alternative dispute resolution mechanism in chapter 558 is not a “civil proceeding” and thus does not trigger an insurer’s duty to defend under a typical CGL policy. Furthermore, when defining a policy’s terms, the dictionary edition in publication during the policy’s effective date should be used.
Wednesday, September 23, 2015
Solo Practioners & Small Firms: Living Shingle
By Amanda M. Uliano
Welcome to the start of a new year for the Solo & Small Firm Section of the Hillsborough County Bar Association. I am excited to be taking the helm this year, and I thank my predecessors, especially James Schmidt, for their dedication to our section and the HCBA as a whole.
Unlike other sections and committees of the HCBA, the Solo & Small Firm Section encompasses a truly diverse membership, with practitioners in a variety of substantive law areas and practice settings. Although this can sometimes present a challenge when defining ourselves, our diversity affords us a unique opportunity to grow our businesses in new and unexpected ways through collaboration and education. As solo and small firm practitioners, we are sometimes expected to be a jack of all trades ― even if it takes us out of our preferred comfort zones. With that in mind, the overarching theme for this year’s Solo & Small Firm Section will be focused on those practice management and substantive issues that every solo and small firm lawyer should have working knowledge of.
We will have five lunch meetings this year, each with an informative CLE presentation. As technology changes, so does the practice of law, and we will explore practice management issues in this new age, including the ins and outs of a virtual law practice. With changing times, however, come evolving issues in ethics and professional responsibility, and we will discuss those most pressing concerns facing our practice today. We will also look at substantive issues affecting our clients, and perhaps ourselves, including bankruptcy and judgment collection, intellectual property, and estate planning.
Beyond education, our meetings will provide us the opportunity to get to know each other and build that imperative network of competent and trustworthy colleagues that every lawyer needs ― a social setting to learn from and with each other so we are not really traveling this road “solo.” We will also explore ways to work as a section to support our community and the Thirteenth Judicial Circuit’s pro bono initiatives. I welcome your thoughts and suggestions as to how our section can work best to accomplish our group and individual goals.
Whether you are a current solo or small firm practitioner or are contemplating making that step, I hope you will join us this year. I look forward to working with all of you to grow and strengthen our businesses and our Solo & Small Firm Section of the HCBA.
Welcome to the start of a new year for the Solo & Small Firm Section of the Hillsborough County Bar Association. I am excited to be taking the helm this year, and I thank my predecessors, especially James Schmidt, for their dedication to our section and the HCBA as a whole.
Unlike other sections and committees of the HCBA, the Solo & Small Firm Section encompasses a truly diverse membership, with practitioners in a variety of substantive law areas and practice settings. Although this can sometimes present a challenge when defining ourselves, our diversity affords us a unique opportunity to grow our businesses in new and unexpected ways through collaboration and education. As solo and small firm practitioners, we are sometimes expected to be a jack of all trades ― even if it takes us out of our preferred comfort zones. With that in mind, the overarching theme for this year’s Solo & Small Firm Section will be focused on those practice management and substantive issues that every solo and small firm lawyer should have working knowledge of.
We will have five lunch meetings this year, each with an informative CLE presentation. As technology changes, so does the practice of law, and we will explore practice management issues in this new age, including the ins and outs of a virtual law practice. With changing times, however, come evolving issues in ethics and professional responsibility, and we will discuss those most pressing concerns facing our practice today. We will also look at substantive issues affecting our clients, and perhaps ourselves, including bankruptcy and judgment collection, intellectual property, and estate planning.
Beyond education, our meetings will provide us the opportunity to get to know each other and build that imperative network of competent and trustworthy colleagues that every lawyer needs ― a social setting to learn from and with each other so we are not really traveling this road “solo.” We will also explore ways to work as a section to support our community and the Thirteenth Judicial Circuit’s pro bono initiatives. I welcome your thoughts and suggestions as to how our section can work best to accomplish our group and individual goals.
Whether you are a current solo or small firm practitioner or are contemplating making that step, I hope you will join us this year. I look forward to working with all of you to grow and strengthen our businesses and our Solo & Small Firm Section of the HCBA.
Tuesday, September 22, 2015
This Year for the Collaborative Law Section
By Jeremy E. Gluckman and Christine A. Hearn
The Collaborative Law Section begins this year with an invitation to all of our fellow Bar members to join the section and to start learning how to resolve legal disputes through the collaborative process. Our two local family law collaborative groups, the Tampa Bay Collaborative Divorce Group and Next Generation Divorce, have continued to thrive throughout the past year, and a third collaborative practice group, the Florida Civil Collaborative Practice Group, has been formed for civil practitioners in the Tampa Bay area. We encourage all of you to consider joining one of these groups and to come to our section’s luncheons to enhance your knowledge of this rapidly evolving alternative to the adversarial legal process. The section is dedicated to promoting the awareness and use of the collaborative process in family law cases. Now we hope to help you add clients to your civil practice so they can find collaborative solutions to their legal problems as opposed to litigating.
We are proud that our section has had a Pro Bono Committee from its inception. We will be encouraging all of you to volunteer some of your time to develop the work of that committee and to give yourself practice opportunities to strengthen your professional skills in collaboration. We hope to expand this work to family law clinics at our local law schools this year. Volunteers will also be sought for those clinics.
This year, we also plan to gather resources and professionals to work with the very large percentage of middle-income people who file pro se actions in the family law division of our circuit court. Specifically, we hope to implement a new project for clients of “modest means” in an effort to produce more affordable collaborative services to a broader range of clients in our community.
On a statewide basis, many members of our section have been actively participating in efforts to pass the Uniform Collaborative Law Act in the Florida Legislature, as well as standards for Supreme Court certification in the area of collaborative law. Our section will continue to support that effort during the 2016 legislative session. With success, we will see collaboration become a common and everyday means of solving legal conflicts, and Florida will continue to be one of the leading states in the national and international collaborative movement.
You may already know something about how the collaborative process uses a full team of professionals ― two lawyers, a mental health facilitator, and an experienced forensic financial expert ― to prevent married partners from becoming adversaries. But did you also know that this same process can be used to resolve trust and estate issues, employment cases, or other litigation disputes? Join our section (without a fee), come to our luncheons, and become a member of one (or more) of our practice groups to find out more about collaboration as an alternative to battling as adversaries. It will be the first step toward helping clients move forward in a positive, less destructive direction.
The Collaborative Law Section begins this year with an invitation to all of our fellow Bar members to join the section and to start learning how to resolve legal disputes through the collaborative process. Our two local family law collaborative groups, the Tampa Bay Collaborative Divorce Group and Next Generation Divorce, have continued to thrive throughout the past year, and a third collaborative practice group, the Florida Civil Collaborative Practice Group, has been formed for civil practitioners in the Tampa Bay area. We encourage all of you to consider joining one of these groups and to come to our section’s luncheons to enhance your knowledge of this rapidly evolving alternative to the adversarial legal process. The section is dedicated to promoting the awareness and use of the collaborative process in family law cases. Now we hope to help you add clients to your civil practice so they can find collaborative solutions to their legal problems as opposed to litigating.
We are proud that our section has had a Pro Bono Committee from its inception. We will be encouraging all of you to volunteer some of your time to develop the work of that committee and to give yourself practice opportunities to strengthen your professional skills in collaboration. We hope to expand this work to family law clinics at our local law schools this year. Volunteers will also be sought for those clinics.
This year, we also plan to gather resources and professionals to work with the very large percentage of middle-income people who file pro se actions in the family law division of our circuit court. Specifically, we hope to implement a new project for clients of “modest means” in an effort to produce more affordable collaborative services to a broader range of clients in our community.
On a statewide basis, many members of our section have been actively participating in efforts to pass the Uniform Collaborative Law Act in the Florida Legislature, as well as standards for Supreme Court certification in the area of collaborative law. Our section will continue to support that effort during the 2016 legislative session. With success, we will see collaboration become a common and everyday means of solving legal conflicts, and Florida will continue to be one of the leading states in the national and international collaborative movement.
You may already know something about how the collaborative process uses a full team of professionals ― two lawyers, a mental health facilitator, and an experienced forensic financial expert ― to prevent married partners from becoming adversaries. But did you also know that this same process can be used to resolve trust and estate issues, employment cases, or other litigation disputes? Join our section (without a fee), come to our luncheons, and become a member of one (or more) of our practice groups to find out more about collaboration as an alternative to battling as adversaries. It will be the first step toward helping clients move forward in a positive, less destructive direction.
Monday, September 21, 2015
Appellate Law: Judge John Badalamenti Joins the Second District
By Anthony J. Russo
In April, John L. Badalamenti was appointed to the Second District Court of Appeal by Governor Rick Scott, filling the seat vacated by retiring Judge Charles A. Davis Jr. Judge Badalamenti, 41, of Tampa, comes to the post from the Appellate Division of the Office of the Federal Public Defender, Middle District of Florida, where he had served since 2006. The appointment to the court is the culmination of a calling that he first heard long ago.
As a boy, Judge Badalamenti occasionally took the train from his home in Brooklyn to lunch with his mother, a bookkeeper working in the Southern District of New York courthouse. Afterward, he would sit in the courtrooms and watch criminal trials. That early fascination with the law eventually led him to the University of Florida law school.
After graduation, the U.S. Attorney General Honors Program called and awarded him a one-year counsel position with the Federal Bureau of Prisons at the Southeast Region Headquarters in Atlanta. There, he was an advocate and advisor to the bureau, handling a variety of constitutional and civil matters and post-conviction proceedings.
The Eleventh Circuit Court of Appeals was the next to call, offering a clerkship with the Hon. Frank Mays Hull. Working with Judge Hull in the grand Atlanta courthouse, Judge Badalamenti learned the intricacies of appellate practice. Judge Hull herself had been a law clerk to the Honorable Elbert P. Tuttle, for whom the historic courthouse is named. To this young lawyer, Judge Hull passed on a tradition of mentorship that she herself had received from Judge Tuttle.
Following that clerkship, Judge Badalamenti returned to Florida and entered private practice. He found his professional home at the St. Petersburg office of Carlton Fields. There, his practice included a mix of securities and class-action trial work and civil appeals. The firm’s offices were just a few floors away from the private office of the Hon. Paul H. Roney, judge at the Eleventh Circuit Court of Appeals. Judge Roney, needing an experienced law clerk temporarily to assist with a backlog of cases, reached out to his colleagues on the court. Judge Hull responded that such a candidate was working just a few floors away from him.
Judge Roney was the next to call on Judge Badalamenti. Judge Badalamenti’s firm was amenable to what was originally intended to be a six-month stint but turned into a three-year senior law clerk experience. Judge Badalamenti was struck by Judge Roney’s deep love of the judicial process, the respect he showed the parties, and the exquisite care he used in his legal writing.
His enthusiasm for appellate practice, now thoroughly whetted, led Judge Badalamenti to take a post with the Appellate Division of the Federal Public Defender’s Office in Tampa. His practice was not limited to appellate work, and he tried several cases in the federal courts of the Middle District. He observed that this firsthand experience taught him the challenges that trial lawyers face. And he saw that trial judges are called upon to make instant decisions and that they need discretion to act. He recognized that this discretion must be respected, and that only unreasonable decisions should be reversed by an appellate court.
Judge Badalamenti has now answered the governor’s call to serve on the Second District Court of Appeal. Judge Badalamenti’s varied professional background, and his long love and deep respect for the law, will serve the citizens of the state well for years to come. The Hillsborough County Bar Association heartily welcomes Judge Badalamenti to the court.
In April, John L. Badalamenti was appointed to the Second District Court of Appeal by Governor Rick Scott, filling the seat vacated by retiring Judge Charles A. Davis Jr. Judge Badalamenti, 41, of Tampa, comes to the post from the Appellate Division of the Office of the Federal Public Defender, Middle District of Florida, where he had served since 2006. The appointment to the court is the culmination of a calling that he first heard long ago.
As a boy, Judge Badalamenti occasionally took the train from his home in Brooklyn to lunch with his mother, a bookkeeper working in the Southern District of New York courthouse. Afterward, he would sit in the courtrooms and watch criminal trials. That early fascination with the law eventually led him to the University of Florida law school.
After graduation, the U.S. Attorney General Honors Program called and awarded him a one-year counsel position with the Federal Bureau of Prisons at the Southeast Region Headquarters in Atlanta. There, he was an advocate and advisor to the bureau, handling a variety of constitutional and civil matters and post-conviction proceedings.
The Eleventh Circuit Court of Appeals was the next to call, offering a clerkship with the Hon. Frank Mays Hull. Working with Judge Hull in the grand Atlanta courthouse, Judge Badalamenti learned the intricacies of appellate practice. Judge Hull herself had been a law clerk to the Honorable Elbert P. Tuttle, for whom the historic courthouse is named. To this young lawyer, Judge Hull passed on a tradition of mentorship that she herself had received from Judge Tuttle.
Following that clerkship, Judge Badalamenti returned to Florida and entered private practice. He found his professional home at the St. Petersburg office of Carlton Fields. There, his practice included a mix of securities and class-action trial work and civil appeals. The firm’s offices were just a few floors away from the private office of the Hon. Paul H. Roney, judge at the Eleventh Circuit Court of Appeals. Judge Roney, needing an experienced law clerk temporarily to assist with a backlog of cases, reached out to his colleagues on the court. Judge Hull responded that such a candidate was working just a few floors away from him.
Judge Roney was the next to call on Judge Badalamenti. Judge Badalamenti’s firm was amenable to what was originally intended to be a six-month stint but turned into a three-year senior law clerk experience. Judge Badalamenti was struck by Judge Roney’s deep love of the judicial process, the respect he showed the parties, and the exquisite care he used in his legal writing.
His enthusiasm for appellate practice, now thoroughly whetted, led Judge Badalamenti to take a post with the Appellate Division of the Federal Public Defender’s Office in Tampa. His practice was not limited to appellate work, and he tried several cases in the federal courts of the Middle District. He observed that this firsthand experience taught him the challenges that trial lawyers face. And he saw that trial judges are called upon to make instant decisions and that they need discretion to act. He recognized that this discretion must be respected, and that only unreasonable decisions should be reversed by an appellate court.
Judge Badalamenti has now answered the governor’s call to serve on the Second District Court of Appeal. Judge Badalamenti’s varied professional background, and his long love and deep respect for the law, will serve the citizens of the state well for years to come. The Hillsborough County Bar Association heartily welcomes Judge Badalamenti to the court.
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