November 2018
Thursday, November 29th Read inside for more information
Arthur H. Rice Brent J. Chudachek Chad P. Pugatch Riley W. Cirulnick Kenneth B. Robinson Michael Karsch Ron J. Cohen Richelle B. Levy Craig A. Pugatch George L. Zinkler III Richard B. Storfer ATTORNEYS AT LAW
101 N.E. Third Avenue, Suite 1800, Ft. Lauderdale, FL 33301 954-462-8000 ∙ 954-462-4300 www.rprslaw.com
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Abramowitz, Pomerantz, & Morehead, P.A. Haliczer, Pettis & Schwamm, P.A. Billing, Cochran, Lyles, Mauro & Ramsey, P.A. Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. Birnbaum, Lippman & Gregoire, PLLC Keller Landsberg PA Boies Schiller Flexner LLP – Hollywood Office Kelley/Uustal Brinkley Morgan Kim Vaughan Lerner LLP Buchanan Ingersoll & Rooney PC Krupnick, Campbell, Malone, Buser, Slama, Catri, Holton, Kessler & Kessler P.A. Hancock & Liberman, P.A. Chimpoulis, Hunter & Lynn, P.A. Legal Aid Service of Broward County Coast to Coast Legal Aid of South Florida MacLean & Ema Cole, Scott, and Kissane Moraitis, Cofar, Karney & Moraitis Colodny Fass Pazos Law Group, P.A. Conrad & Scherer, LLP Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A. Cooney Trybus Kwavnick Peets, PLC Rogers, Morris & Ziegler, LLP Doumar, Allsworth, Laystrom, Voigt, Wachs Adair & Dishowitz, LLP Schlesinger Law Offices, P.A. Ferencik, Libanoff, Brandt, Bustamante, & Goldstein, P.A. Seiler, Sautter, Zaden, Rimes & Wahlbrink Fowler, White, Burnett, P.A. Smith, Currie & Hancock, LLP Gladstone & Weissman, P.A. Vezina, Lawrence & Piscitelli, P.A. Gray Robinson, P.A. Walton, Lantaff, Schroeder & Carson, LLP Green, Murphy, Murphy & Kellam Wicker, Smith, O’Hara, McCoy and Ford, P.A.
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Staff Box Letter from the President 5 Edwina V. Kessler PUBLISHER 5 Broward County Bar Association 954.764.8040 Young Lawyers’ Section PUBLICATIONS & PUBLICITY Letter from the President COMMITTEE 7Brent M. Reitman Edwina V. Kessler, Co-chairperson 9 Jared Guberman, Co-chairperson/ Want vs. Need... Co-editor Art Garcia Chris Traina, Co-editor 9 Karina Rodrigues – Co-editor
EXECUTIVE EDITOR Veterans Day Braulio N. Rosa 11James W. Heaton 13 [email protected]
LAYOUT AND PRINTING Party Smart Park Row Printing 13Amber Ruocco Coordinating Editor 18 Amanda Marks Broadway On The Road [email protected] Sal Fazio 954.832.3625 15 CONTRIBUTING WRITERS 21 Nicole M. Avila Citizenship and Immigration Marsha D. Brown Services Issues Jacqueline DerOvanesian 17Nicole M. Avila Sal Fazio Art Garcia Law-LaPalooza Lindsay Haber 22 James W. Heaton 18Jacqueline DerOvanesian & Debra P. Klauber Lindsay Haber Amber Ruocco Deborah Ward Client Intakes Deborah Ward BILLING INQUIRIES 20 954.764.8040 Ext. 204 The Barrister is published monthly by the Case Law Update Broward County Bar Association. All editorial, advertising and photos may be submitted Debra P. Klauber for consideration through email to ads@ 21 November 2018 browardbar.org. We reserve the right to reject any ad for any reason. Surviving Holiday Stress We make every effort to ensure the accuracy of Marsha D. Brown the information published, but cannot be held 22 responsible for any consequences arising from omissions or errors. Opinions expressed by our writers and advertisers are not necessarily opinions shared by the BCBA or the Barrister. Calendar of Events ON THE COVER 23 Join us for our Annual BCBA Holiday Party on Thursday, November 29th at the NSU Art Mu- Thursday, November 29th seum in Fort Lauderdale. Visit Browardbar.org/ Read inside for more information calendar to register! www.browardbar.org
4 | November 2018 Broward County Bar Association Barrister letter from the president 2018 - 2019 Although it may not seem like BCBA Officers it here in South Florida, fall is upon us. Even though we do not Edwina V. Kessler • President experience the leaves changing Michael A. Fischler • President Elect as other parts of as do other parts Robert C.L. Vaughan • Treasurer of the country, November is the Jamie Finizio Bascombe • Secretary beginning of the holiday season. Thomas D. Oates • Past President Thanksgiving began as a day of Braulio N. Rosa • Executive Director giving thanks for the blessing of the harvest and of the preceding BOARD OF DIRECTORS year. It is a time to reflect what you NORTHEAST are thankful for. I personally am Jose Leonardo Gomez thankful for my family and friends Michele McCaul Ricca that they are in good health. I am NORTHWEST fortunate and thankful to have my Nancy K. Brodzki immediate family close by and see Matthew Fornaro them on a regular basis including Edwina V. Kessler working with my sister, Paula. WEST Happy thanksgiving and blessings Valerie B. Barnhart to you and your family. Alejandro Larrazabal Jessica M. Marra As I sit here contemplating what to write for my President’s message, CENTRAL hurricane Michael has just devastated Mexico Beach, Panama City and Jamie Alan Cole surrounding cities in the panhandle. The first pictures of the aftermath Stephen R. Gross of the destruction and devastation are heartbreaking. My thoughts and Aaron J. Horowitz prayers go out to those in the Panhandle. Kenneth J. Joyce Brian M. Karpf Every October is the month the BCBA volunteers Legal Aid Advice & Alison F. Smith Counsel Hotline. On Tuesdays, volunteers call to provide legal advice to Maxine K. Streeter Legal Aid clients who want to know their legal rights. If you have never SOUTHEAST volunteered, I suggest that you do so. As a civil defense litigator, most of Anita Paoli the clients at Legal are not seeking representation in my areas of practice. Michael A. Rajtar Legal Aid provides the volunteers all the law and forms to provide to the clients. I would like to thank The BCBA Board members and section SOUTHWEST chairs that participated this year. Alan David Danz Kenneth P. Hassett November 12 is Veterans Day. The BCBA has many members who are veterans. I salute each and every one of our member veterans on this JUDICIAL REPRESENTATIVE upcoming Veterans Day and thank you and your families for your service. The Honorable Raag Singhal November is a busy month for the BCBA. On November 1st, we will be co-sponsoring a Jury Improvement Lunch with the 17th Circuit and ABOTA. November 2, is The Big Lunch: Connected to Goodness, Manifest Everything You Desire in Business and Life with author, David Meltzer. Mr. Meltzer is currently the CEO of Sports 1 Marketing one of the world’s leading sports & entertainment marketing agencies. The lunch and presentation will be from 12:00 to 1:30 with book signings after. The BCBA Annual Holiday Party is November 29th at the NSU Art Museum Broward County Bar Association from 5:30 - 8:30 p.m. To learn more about these events and other events 1051 SE 3rd Avenue at the BCBA this month, please look at the last page of the Barrister or go Fort Lauderdale, FL 33316 954.764.8040 to: browardbar.org/calendar
Broward County Bar Association Barrister November 2018 | 5 BROWARD COUNTY BAR ASSOCIATION AnnuAl SponSorS VICTOR TOBIN
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6 | November 2018 Broward County Bar Association Barrister letter from the young lawyers’ president 2018 - 2019 BCBA Just like that, the year is almost over! Young Lawyers’ Section Even though the holidays are around the corner there are still a plethora of OFFICERS amazing events between here and the Brent M. Reitman • President new year! Lindsay M. Massillon • President Elect Omar A. Giraldo • Treasurer It’s not too late to golf! If you are inter- Brooke Latta • Secretary ested in participating in the 31st Annual Sara M. Sandler • Past President Young Lawyer’s Golf Tournament that is set to tee off on November 10, 2018 BOARD OF DIRECTORS at Jacaranda Country Club - there are Jamie D. Alman still availabilities for your foursome! Anisha Atchanah Every year we have a great turnout Jacqueline DerOvanesian for this event and have partnered with Krystine Espina a wonderful charity. Our beneficiary, Maria Schiuma Fischer Experience Camps, sends children, Josiah Graham who have experienced the tragic loss Lindsay Haber of a parent or sibling, to summer camp James Heaton Brent M. Reitman to allow children to thrive and bond Joshua R. Levine amongst common experiences and pro- Alejandra Mendoza vides concurrent counseling services. The golf tournament will be preceded by our David Newman tee-off happy hour that will take place on November 8, 2018 at 5:30pm. H. Seth Rosenthal Kimberly L. Wald November 17, 2018 is National Adoption day that comes about after a fantasti- cally successful kick-off happy hour that was thrown in conjunction with the Heart JUDICIAL REPRESENTATIVES Gallery (back on October 4) at the Galleria Mall. National Adoption day will take place at the Broward County Courthouse where we are taking on the monumental The Honorable Robert Diaz task of surpassing last year’s wildly successful endeavor where Broward County The Honorable Jennifer W. Hilal set the National Record for Adoptions! The event is exceedingly meaningful and emotional for the families, judges, and lawyers involved.
Please also join us for the Broward County Bar Association Annual Holiday Party on November 28, 2018. This year, the event will take place at the Nova South- Florida Bar eastern University Art Museum at 5:30pm. It is always a very well-attended event where we can celebrate the winding down of another very successful year with the Board of Governors Broward County Bar Association and its amazing direction and staff! 17th Judicial Circuit Finally, December 7 of this year will be our first Law-LaPalooza event which is a Lorna E. Brown-Burton full day of CLE courses and seminars in various legal topics geared toward giving 954.463.8322 your lawyers, law clerks, and legal interns a head start in diving into the practice of law. The event will feature topical presentations on a wide variety of legal topics Hilary A. Creary 954.783.9737 which will be moderated by numerous judges, young and experienced practitio- ners, Florida Bar President Michelle Suskauer, and the President and Present-Elect Jay Kim of the Florida Board of Governors Young Leadership Division, as well as presenta- 954.527.1115 tions on appropriate use of technology and crisis management. In addition, there will be a happy hour for all the participants, speakers and judges that will take Adam Glenn Rabinowitz place after the event concludes at the Downtowner. It is a wonderful learning op- 954.764.7060 portunity and an event that no young lawyer should miss!
Diana Santa Maria So, please come join us for all of these wonderful events! 954.434.1077
Broward County Bar Association As always, the Young Lawyers’ Section wishes everyone an early, safe and mean- 1051 SE 3rd Avenue ingful Holiday season. We are all thankful for your support, sponsorship and Fort Lauderdale, FL33316 friendship during this wonderful year and look forward to more successes in the 954.764.8040 future!
Broward County Bar Association Barrister November 2018 | 7 Defending Reputations®
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8 | November 2018 Broward County Bar Association Barrister Want vs. Need... by Art Garcia Mediation is a process that requires No one had asked before. She said, an understanding of the participants’ without hesitation, “It’s fall. I am Another example is a construction needs and wants. That understand- making pumpkin pie; I can’t do that defect dispute. Of course, each attor- ing requires active listening during without the pumpkin, and it is the last ney wants the best possible monetary mediation and often communication one in the patch.” outcome for their client. Meanwhile, before the mediation process begins. the parties bog down in litigation Mediator Mike then went to Dennis which results in properties untouched I want that pumpkin, and that’s all Defendant and asked the same ques- and off the market; extending losses there is to that! tion. Like Patti Plaintiff, he said, “It’s that may not be recoverable. They fall, and I want to carve the pumpkin need to get back in business. They Patti and Dennis had a problem; they and make a jack-o’-lantern.” need to maintain relationships be- both wanted the last pumpkin in the tween the various contractors and pumpkin patch. There seemed no Mediator Mike asked each of them material providers in the dispute. way to reach an agreement. There what part of the pumpkin was need- These relationships are so joined that was one pumpkin and both wanted ed. From their answers, you’ve prob- while one may win the battle during it. Frustrated over the situation, they ably guessed Patti needed the flesh, the litigation, others will lose their each hired counsel, who without de- and Dennis, the shell. Each used the businesses, tantamount to a lose-lose lay began the litigation process. It needed part. There was, in fact, a so- for all. was no surprise that all discovery re- lution. quests resulted in objection or similar What one wants and what one needs responses: My client must have the While Patti and Dennis’ dilemma is certainly not always the same pumpkin. Neither side could under- seemingly had a simple solution, it thing. Help make the process more stand why the other wouldn’t just was only apparent once considered. successful by talking to the client. give up the pumpkin. The battle con- The same principle applies to dis- With communication comes under- tinued, and a trial date was set. Be- putes encountered in your daily prac- standing, and with understanding the fore the parties could go before a jury tices. impossible becomes possible. Only and explain why each’s want of the with proper advance preparation you pumpkin was greater than the oth- In a probate dispute between adult may get what you need. er’s, they were ordered to mediation. siblings, over entitlement to the proceeds of their deceased parent’s Keep Talking! Each attorney gave impassioned estate, each wants the greatest pro- opening remarks as to why his client portionate share. They need the pro- should get the pumpkin. On behalf of ceeds to live which are being tied up Patti Plaintiff, counsel proclaimed, in litigation and they also need to re- “She saw it first, and she is entitled to tain the family unit. Art Garcia is a South Flor- ida-based Mediator and the pumpkin.” Dennis Defendant had Arbitrator with Upchurch his payment ready before Patti Plain- In the personal injury context, the Watson White & Max Me- diation Group, Mr. Garcia tiff; therefore, his lawyer said, he had defense wants a verdict in its favor was a civil litigator for 25 years, a Registered Nurse, the right to the pumpkin. and plaintiff wants the largest possi- EMT and is a Marine ble monetary award. However, both Corps. Veteran, Honorably Discharged. He is cur- The parties separated, and Media- need to reduce uncertainty and risk. rently a full time Certified tor Mike spoke to each separately. Plaintiff needs to consider the addi- Civil Circuit, County and Appellate mediator and It seemed hopeless. Both sides were tional costs of trial and whether that Supreme Court Quali- fied arbitrator. The firm’s uncompromising. Then Mediator investment is best served ensuring a areas of practice include Mike said to Patti Plaintiff, “I know better net recovery for plaintiff. The mediation, Arbitration, General Master Services you want the pumpkin, but my ques- defendant’s offer may make settle- and e-discovery. For more information, visit uww-adr. tion is why?” She looked surprised. ment the better option over trial. com or call 305-266-1224.
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10 | November 2018 Broward County Bar Association Barrister Military servicemembers returning ever, these letters went unanswered. from overseas deployment during the Vietnam War were spit on and vili- Not knowing where to turn, Claude fied. Conversely, their modern-day contacted his Mission United case counterparts, those who served tours Something to manager and was referred to Legal in Iraq and Afghanistan are often per- Aid for placement with the Veteran’s ceived, at least by the civilian world, Pro Bono Project. From there, Claude as damaged and broken. While the ci- Consider this met with a pro bono attorney who vilian reception of these two genera- was able to establish a plan of action. tions is vastly different, both groups Working together on his case, Claude are ultimately viewed as outsiders. Veterans Day and his volunteer attorney were able to navigate the procedural maze of This stigma is damaging to these men VA regulations and begin the process and women who risked their lives by James W. Heaton of having Claude’s need for a fidu- serving our country, the majority of ciary reevaluated. The team submit- whom leverage their military experi- duciary. Reeling from the discovery ted legal briefs, medical opinions, ences into successful civilian careers. of how rapidly their son’s condition and VA forms, and within six months, I recently had the pleasure of work- had regressed, Claude’s mother re- the VA rendered a decision: “Veteran ing with a young man who is an ex- quested that the VA designate her as is competent to manage his finances.” ample of the undying will exhibited the fiduciary over Claude’s finances, Within two months Claude began to by our veterans. and moved him back into her home. directly receive his VA service-con- Unfortunately, due to the lapsing of nected disability and was sent a large Lance Corporal Claude served four procedural deadlines, the VA desig- sum of money that was being held by years active duty in the Marine Corps nated a private fiduciary to manage the fiduciary. and about a year in the Army from Claude’s VA benefit checks. 2002-2006 and 2008-2009 respec- Claude is not the exception. His tively. While in the Marines, Claude After hitting what most would call strong spirit and determination are was deployed to Iraq for eleven “rock bottom,” Claude was enrolled characteristics that were drawn out of months. in specialized treatment with the VA him and nurtured during his military and sought out assistance from the service. The continuing comradery Upon being discharged from active United Way of Broward County’s that Claude found with his fellow vet- duty in 2009, Claude lived a fairly Mission United. Channeling his mili- erans exists in communities through- normal and independent life us- tary spirit, Claude began the fight to out America. This Veterans Day, ing his GI Bill to cover the costs of regain control and, with help from his spend some time reflecting on what school and rent and living off ser- fellow veterans, started to make prog- you are grateful for, go thank a vet- vice-connected disability benefits to ress toward normality. eran for their service, and find a way cover the rest of his expenses. How- to give back to your community. ever, his combat experiences started After a few months of treatment to catch up with him and Claude Claude re-enrolled in classes at Bro- began to heavily drink alcohol and ward College. However, Claude’s in- use drugs to quiet his suffering. Sub- ability to directly access his finances James W. Heaton is the supervising attorney for the stance abuse led to Claude dropping made purchasing books and school Mission United Veterans out of school and being evicted from supplies difficult. Even with these Pro Bono Project at Legal Aid Service of Broward his apartment, making him homeless. hiccups, Claude maintained a 3.2 County. James also serves on the Board of Direc- GPA for the semester. Wanting to re- tors for the BCBA Young Subsequently, the Department of gain his independence, Claude made Lawyers Section, the Florida Bar Military and Veterans Veterans Affairs declared Claude in- phone calls and sent hand-written let- Affairs Committee, and the competent to handle his own finances ters to the VA requesting that it recon- American Bar Association Commission on Homeless- and contacted his family to seek a fi- sider his need for a fiduciary. How- ness and Poverty.
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12 | November 2018 Broward County Bar Association Barrister Party Smart
by Amber Ruocco It’s the holiday season, arguably the erally, under the Statute, recreational to a third party injured by an intoxicat- most wonderful time of the year filled and/or social activities are not includ- ed employee driving home. In the case with tree decorating, candle lighting, ed, unless same are considered to be an of Carroll Air Systems v. Greenbaum, family togetherness, and, of course, expressly required incident of employ- 629 So.2d 914 (Fla. 4th DCA 1993), holiday parties. While office holiday ment and produce a substantial and an employee was driving home from a parties are a great way to celebrate direct benefit to the employer-beyond work conference after attending a com- joy and new beginnings with your col- improvement in employee health and pany-sponsored dinner where alcohol leagues, before you grab that second morale that is common to all kinds of was served and caused a fatal acci- glass of eggnog, it is important to re- recreation and social life. Fla. Stat. § dent. The court found the employer vi- member that there is still potential for 440.09(1). cariously liable for the fatal crash and liabilities and claims to arise as a re- $85,000 in compensatory damages and sult of poor choices. If the court finds an employee is in the $800,000 in punitive damages were as- course and scope of employment when sessed for the wrongful death and for As attorneys, we know not to drink and the injury occurs, even if they appear failure to exercise control over the em- drive and advocate this to our clients, to be intoxicated at the time, the intoxi- ployee by allowing him to drive while friends, and family. However, it’s easy cation defense to compensability of the clearly under the influence of alcohol. to get caught up in the lights and won- injury may not be accepted. In Inmon der of the holiday season and forget v. Convergence Employee Leasing III, Company-sponsored events are a great to take our own advice, which, among Inc., No. 1D17-0815 (Fla. 1st DCA way to boost employee morale and other things, could put ourselves, our 2018), a recent wrongful death case, comradery, as well as acknowledge all employers, and/or employees at risk an employee who was seemingly in- of the hard work and dedication that for liability for claims under workers’ toxicated, was hit by a car when walk- goes into running a law practice and/or compensation and tort, as well as civil ing from a bar to the hotel where he business. Instead of ditching the event and criminal penalties. The risk is not was staying for an out of town job. The altogether, before you grab that last only limited to holiday parties, but also First DCA rejected the employer’s in- drink, make sure you and/or your col- could include any company sponsored toxication defense and found that even leagues, employers, and/or employees events such as retreats, happy hours, with video surveillance evidence of the have an action plan in place before you sports teams, dinners and/or meetings employee stumbling out of the bar min- get behind the wheel. with clients, etc. utes before the accident and evidence showing the damage to the vehicle, Under Florida Statute Section there was not enough to establish by 440.09(1), employers can be liable the greater weight of the evidence that to provide benefits for injured em- the work injury was as a result of the Amber L. Ruocco is an associate ployees under workers’ compensation intoxication of the employee. Inmon, of Lubell | Rosen in their work- ers’ compensation defense divi- when: (1) the injury arises out of ac- Fla. 1st DCA 2018 (citing Wright v. sion in Fort Lauderdale, Florida, headed by partner, Lorna E. tivities that are within the course and DSK Group, 821 So. 2d 455, 456 (Fla. Brown-Burton, Esquire. Ms. scope of employment; (2) the injury 1st DCA 2002)). The employer was Ruocco is also a member of the Broward County Section and the is established to a reasonable degree then held liable for funeral expenses Young Lawyers Division. Amber can be contacted at ALR@ of medical certainty, based on objec- and death benefits to the wife of the lubellrosen.com. tive relevant medical findings; and (3) deceased employee. Id. the accident is the major contributing cause of any resulting injuries. Gen- There is also potential for tort liability
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14 | November 2018 Broward County Bar Association Barrister BROADWAY ON THE ROAD: GRAND RIGHTS AND OTHER INTELLECTUAL PROPERTY
by Sal Fazio Theaters all over South Florida are prepar- scenarios that can be at play depending on would require a license to multiple copy- ing to usher in their 2019 season, but not the size of the production and the dynamic rightable aspects of the production, thus without first displaying some of Broad- of the parties involved. Because of this, requiring a more comprehensive licensing way’s most acclaimed productions to theater law distinguishes and provides scheme. close out 2018. Evergreen classics like the treatment standards that vary based upon “Phantom of the Opera” (showing at the parties’ “performance classes”. In exchange for a limited license for the Broward Center for the Performing Arts foregoing, commercial production com- Oct. 10-21), movie musical adaptations A production will be deemed a “first class panies generally dedicate a percentage of like Disney’s “Freaky Friday” (showing performance” based on the size, location their gross weekly box office revenue to at the Broward Center for the Performing and reputation of the theatre(s) where the a royalty pool made up of the script writ- Arts Oct. 18 through Nov. 4), jukebox mu- musical will be performed, the use of a ers, lyricists, composers, directors, cho- sicals like “Jersey Boys” (showing at the professional cast and an experienced pro- reographers and book writers (if musical Kravis Center in West Palm Nov. 23-24), fessional director, quality of scenography, is derived from a book) who contributed and Tony Award-racking, box-office mast- and duration of the tour and budget. All copyrightable material to the show. Com- odons like “Hamilton” (showing at the other performance types, including con- pensation derived from licensing income Broward Center for the Performing Arts densed performances and amateur perfor- is based on an agreed apportionment on Dec. 18 through Jan. 20, 2019) will mances are generally regarded as “second schedule. make a return to South Florida audiences class performances.” In addition to fees, and in turn contribute to Broadway’s bil- most Broadway producers require touring The Broadway Touring Industry lionaire industry before the new year. shows to adhere to stringent authentic- ity and quality measures. The Dramatist Broadway touring has become a valuable Stacy J. Grossman, Esq. of the Law Offic- Guild of America, an association in sup- component of the entertainment industry. es of Stacy J. Grossman in New York City, port of theatrical works creators, provides According to the Broadway League, a NY regularly works with theatrical works detailed guidelines and model contracts trade association for the Broadway indus- creators. “There are just so many ways to reflecting the latest industry standards in try, the 2017-2018 Broadway touring sea- exploit theatrical works” said Grossman, licensing theatrical works. son reached 17 million people in over 200 adding that although it is generally dif- cities across the United States and gener- ficult for Broadway shows to recoup all Copyrights ated over 1.4 billion dollars in revenue their expenditures, the value of their in- (not including non-equity tours and sit- tellectual property can be substantial in The use of copyrighted musical and lyri- down Las Vegas productions), while pro- cases in which a Broadway show becomes cal work in a dramatic-musical manner viding a stimulating economic impact in a household name. (telling a story with words and music, or the cities where productions were shown. incorporated with choreography, stage As the old saying goes, “there is no busi- Taking a Broadway show on the road, action or as part of a play), necessitates ness like show business.” however, can be an intricate feat. Not all a “grand rights” license. Grand rights dif- Broadway productions are created equal fer from the rights sought to publicly per- and the legal framework behind clearing form works in a non-dramatic manner also intellectual property rights for travel pro- known as “small rights” in that they usual- ductions is based heavily on the type of ly encompass other copyrightable aspects show for which a license is sought. of a Broadway show such as choreogra- Sal Fazio is an attorney with Santucci Priore P.L. phy, stage directions, scenery, and certain in Fort Lauderdale, focus- Approved Production Contracts costume designs. By way of example, per- ing on intellectual prop- forming a standalone selection from the erty, civil and commercial litigation, entertainment Approved production contracts generally musical “Cats” without any dialogue or law and startup develop- spell out the terms under which a commer- stage action would only require a license ment. He can be contacted cial touring production company, an ama- from a performance rights organization at [email protected] or teur community theater, or a high-school like ASCAP, BMI or SESAC (another way www.500law.com theater program is able to perform Broad- of defining “small rights”) whereas a full way shows. However, there is a myriad of production of the feline-themed musical
Broward County Bar Association Barrister November 2018 | 15 Annual BCBA Holiday Party Thursday, November 29th 5:30 p.m. - 8:00 p.m. NSU Art Museum Fort Lauderdale (1 E Las Olas Blvd., Ft. Lauderdale 33301) No Charge BCBA Member | $25 BCBA Member Guest Register Today at browardbar.org/calendar Questions? Contact Lauren Riegler at [email protected]
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16 | November 2018 Broward County Bar Association Barrister United States Citizenship and Immigration Services Issues New Policy Memoranda Affecting all Applicants by Nicole M. Avila The U.S. Citizenship and Immigration on its website, that it would not be imple- cause many prospective, legally eligible Services (USCIS), the agency tradition- menting the NTA memorandum with re- applicants to forego applying, and remain ally tasked with the adjudication of immi- spect to employment-based petitions or in the shadows. gration benefits under the Department of humanitarian forms of relief at this time Homeland Security (DHS), has recently (applications and petitions for victims and updated long-standing guidance, pursuant survivors of crimes, domestic violence, hu- i Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, to the President’s Executive Order 13768 man trafficking, etc.).vii It is unclear if and 2017). ii Enhancing Public Safety in the Interior when the NTA memorandum will be im- DEPT. OF HOMELAND SEC., U.S. CITIZEN- i SHIP & IMM. SERVS., Issuance of Certain RFEs of the United States. USCIS has changed plemented for these types of applications. and NOIDs; Revisions to Adjudicator’s Field Manual its policy with regard to Requests for Evi- However, they are not exempted from the (AFM) Chapter 10.5(a), Chapter 10.5(b), PM-602-0163 (Jul. 13, 2018). dence (RFE) and Notices of Intent to Deny NTA memorandum and are expressly men- iii ii DEPT. OF HOMELAND SEC., U.S. CITIZENSHIP (NOID) , as well as the issuance of No- tioned therein with respect to how the NTA & IMM. SERVS., Updated Guidance for the Referral tices to Appear (NTA, the charging docu- is to be served on those applicants.viii of Cases and Issuance of Notices to Appear (NTAs) in ment whereby removable aliens are placed Cases Involving Inadmissible and Deportable Aliens, PM-602-0050.1 (Jun. 28, 2018). in Removal Proceedings).iii In addition to the NTA memorandum, US- iv Id. At 2. CIS has updated its policy on the issuance v DEPT. OF HOMELAND SEC., U.S. CITIZENSHIP On June 28, 2018, USCIS issued Policy of RFEs and NOIDs. Since 2013, officers & IMM. SERVS., Revised Guidance for the Referral Memorandum PM-602-0050.1 (herein- were directed to issue RFEs and NOIDs of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, after NTA Memorandum) updating its unless there was “no possibility” that the PM-602-0050 (Nov. 7, 2011). In this memorandum, policy on the issuance of NTAs and refer- deficiency could be cured by additional USCIS’s policy was to refer enforcement cases to ral of cases of inadmissible and deport- evidence. The new Policy Memorandum, DHS’s enforcement agency: Immigration and Customs Enforcement (ICE). The new memorandum gives US- able aliens. This Policy Memorandum PM-602-0163 (hereinafter RFE Memo- CIS greater enforcement power by tasking them with directs USCIS to issue a NTA to anyone randum), issued July 13, 2018, reversed the issuance of NTAs in some cases without necessarily who is inadmissible or deportable from the this policy and directs USCIS to deny any referring to ICE for enforcement determinations. vi United States.iv A stark departure from the case in which insufficient initial evidence PM-602-0050.1 at 2. vii traditional role of USCIS, as its mission has been submitted, rather than request- U.S. CITIZENSHIP AND IMMIGRATION SERVS., Notice to Appear Policy Memorandum (Sep. 26, 2018), is not enforcement, but adjudication of ing additional evidence, with very limited https://www.uscis.gov/legal-resources/notice-appear- benefits.v This policy went into effect on exceptions.x The RFE memorandum went policy-memorandum. October 1, 2018. into effect on September 11, 2018. viii PM-602-0050.1 at 9. ix DEPT. OF HOMELAND SEC., U.S. CITIZENSHIP & IMM. SERVS., Requests for Evidence and Notices of The NTA Memorandum directs USCIS to Ultimately, these memoranda must be read Intent to Deny PM-602-0085, at 2 (Jun. 3, 2013). issue a NTA in any case that has been de- together. The denial of an application for x PM-602-0163 at 3. nied if the person is removable from the insufficient initial evidence will likely re- xi Transactional Records Access Clearinghouse, SYRA- United States (e.g., someone who falls out sult in the issuance of a NTA. While the CUSE UNIVERSITY (Aug. 2018) http://trac.syr.edu/ of status, whether through their own fault, true effects of these policy changes re- phptools/immigration/court_backlog/. or the fault of the DHS due to processing main to be seen, the increase in removal times). cases filed with the Executive Office of Immigration Review (EOIR, the immigra- Nicole M. Avila is the Notably, the NTA memorandum also di- tion courts) will further hinder the already founder of Avila Law rects the USCIS to issue NTAs to people overburdened EOIR. Presently, the Trans- PLLC, and a loving wife who have been charged with any criminal actional Records Access Clearinghouse and mother of a wonder- ful child. Her practice offense, that has not been resolved, and (TRAC) shows that there are 764,561 focuses on immigra- persons who have “committed acts that cases pending at EOIR nationwide.xi These tion relief for victims vi of crimes, survivors of constitute a chargeable criminal offense.” new policies will likely add thousands of human trafficking and of This policy change will carry severe con- additional cases. domestic violence. Nicole sequences to arrestees who are later found is the Vice Chair of the Immigration Law Section not guilty, or whose cases are nolle prose- These new policies will also have a chill- of BCBA, and a Director qui by a State Attorney’s Office. ing effect on persons who are legally en- on the board of BCHBA. She can be reached at titled to ask for immigration benefits. Fear 954-866-5296 or nicole@ As of September 26, 2018, USCIS stated of removal from the United States will avilaimmigrationlaw.com.
Broward County Bar Association Barrister November 2018 | 17 by Jacqueline DerOvanesian & Lindsay Haber
The Broward county Bar Associa- Florida Bar YLD President Chris- judiciary than possible at a tradi- tion & Young Lawyers Section of the tian George & YLD President-Elect tional networking cocktail reception. Broward County Bar Association is Santo DiGangi will start off the The Young Lawyers Section looks excited to introduce “Law-LaPaloo- day getting to know attendees and forward to wrapping up the day and za,” an unprecedented event de- addressing the group over break- kicking off the weekend with happy signed for the entire membership of fast. The practical sessions of Law- hour, then sending its attendees off the Young Lawyers Section to spend LaPalooza will be led by some of feeling fully acquainted with the a productive day together attending the most powerful names in the lo- Broward County Bar Association focused customizable tracks targeted cal legal industry, including judges, and ready to bring some new skills to all practice areas from real estate partners of large law firms, and up back to the office. to criminal law, for both litigators and coming attorneys. Each session and transactional attorneys. This will also feature a young lawyer in event on Friday, December 7, 2018 the field, to offer relatable perspec- Registration and the full schedule of will teach attendees new, practical tive and lead conversation. Law- events for Law-LaPalooza is avail- skills for their practice area, cultivate LaPalooza endeavors to redefine the able at http://bit.ly/LawLaPalooza. new connections to the BCBA com- classic CLE model, keeping attend- For Sponsorship or Event informa- munity, and instill a refreshed sense ees actively engaged and rotating tion please contact Amanda Marks at of confidence in their practice areas, through focused innovative topics [email protected]. all while knocking out 5.5 CLE cred- that are critical to their practice areas its in a single day. and moving away from a mundane lecture structure. This event is not just for brand new Jacqueline DerOvane- attorneys. Each track option is de- We look forward to this rare oppor- sian is an associate in the Business Litigation signed to include advanced topics, tunity Law-LaPalooza will offer, as and Dispute Resolution tips and tricks useful for first year an attendee you will meet and spend practice groups at Gun- ster, Yoakley and Stewart, attorneys and seasoned young law- quality time with Broward Coun- P.A. and a board member yers alike that go far beyond the bar ty’s entire diverse population of of the Broward County Bar Association Young exam basics. Inspired by the “boot young lawyers. By offering different Lawyers Section. camp” series that the Young Lawyers “tracks” to accommodate all practice Section traditionally hosts, Law- areas, this event will draw attorneys
LaPalooza will give young lawyers a who may not typically attend the Lindsay Haber is an unique opportunity to ask questions same CLE seminars or encounter attorney with Kluger Kaplan and is a part of to the best in the business for each one another in practice. Addition- their Family Law Group, specific practice area. Law-LaPaloo- ally, with an all-day agenda inte- focusing her practice divorce, paternity, child za will provide even more hands-on, grating education, networking, and custody issues, domestic practical continued education and hands-on activities, Law-LaPalooza violence, and preparation of prenuptial and post- networking opportunities than the will provide the opportunity to make nuptial agreements. boot camp series, all by 4:00 p.m. in more meaningful connections with a single, action-packed day. other attorneys and members of the
18 | November 2018 Broward County Bar Association Barrister The Broward County Bar Association & Young Lawyers Section Present Law-La&_(______P(alooza Friday, December 7, 2018 Seminar: 8:30 a.m. - 4:30 p.m. | Happy Hour: 4:45 p.m. - 6:30 p.m. Broward County Courthouse | The Downtowner $75 BCBA Member | $100 Non-Member Sponsorships Available | Register at browardbar.org/calendar Questions? Contact Amanda Marks at [email protected]
Where in the World is the Barrister?!? New & ReNewal MeMbeRship DRawiNg Congratulations Martin Zevin with Martin Zevin, P.a. Martin has been practicing law for 45 years and is a proud member of the BCBA!
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Broward County Bar Association Barrister November 2018 | 19 Client Intakes: Importance of Making the ‘Right Diagnosis’ to Maximize Your Success with Case Selection & Development
by Deborah Ward When client intakes are not conducted when attorneys and their teams maximize additional damages. effectively, legal teams may find them- the opportunity to also gather important selves navigating through costly and information surrounding the injury or Maximizing the tool of client intakes in- time-consuming medical record requests event. cludes attorneys adopting the concept of and expert witness evaluations only to conducting intakes similar to a thorough find out later that significant barriers -ex Comparable to a review of systems, or medical history. This may require addi- ist in the case. Client intakes, similar to patient questionnaire completed by pa- tional training of staff who conduct in- patient medical history taking, is an es- tient or client prior to being evaluated by takes or developing a strong team to as- sential skill to master and when used ef- healthcare provider, this initial screen- sist with initial screening or subsequent fectively, can assist attorneys in deciding ing does not provide enough information consultations with potential clients. quickly if a potential case is worth their alone. It is important to either conduct a time and money. Making the right case thorough intake from the beginning or The complexity of tasks and time con- diagnosis timely and efficiently allows perform a more detailed evaluation and straints associated with the daily work- attorneys to maximize their results by history taking after the initial screening load of attorneys may lead to underutiliz- saving time, money, and avoiding cases is performed. Either way, competence in ing and overlooking the value of client that can turn into bad investments. a detailed intake and history taking is key intakes. Optimizing the client intake pro- to optimizing efficiency of case devel- cess becomes an advantage for attorneys For healthcare providers, accurate and opment and expenditure of legal teams. and their teams, resulting in timelier and thorough medical history taking is an Additionally, it is imperative to readdress more effective decision-making regard- essential skill, tool, and foundation nec- and persistently evaluate client status and ing case selection. Take the time to eval- essary for good decision making. Infor- medical history throughout case develop- uate how you conduct client intakes and mation obtained from a medical history ment to maximize case results. if this task is delegated, make sure you is crucial and assists medical providers have the right team in place to escalate determine a treatment plan that leads to Optimizing client intakes includes using your success. Plato once said, “A good making an accurate and timely medical a systematic and constructive question- decision is based on knowledge and not diagnosis for their patients. This not only ing process, similar to how clinicians on numbers.” So, the next time you con- ensures appropriate treatment to start conduct a medical history. Using this duct a client intake, remember the impact early, but also helps decrease medical technique allows attorneys and their team and importance of being a ‘good diag- expenditure by minimizing unnecessary to evaluate and extract information based nostician’ and having the right people on testing or medical treatments. Similarly, on responses to arrive at the right diag- your team to help. Keep in mind, avoid- it is imperative for attorneys to use the nosis. This includes gathering not only ing the wrong cases is as important as client intake process effectively. detailed information about the injury pursing the right ones. or event, but also prior history, current Client intakes usually focus on the injury status, and future plan of care. This effi- Deborah Ward, ARNP, LNC is a board-certified or event details for which a client first ciency allows attorneys to gather focused nurse practitioner work- seeks legal professional services. How- information and sources early on as to ing as a legal nurse consultant. Her nursing ever, it is important to note that, like a where additional data or discovery may expertise and legal nurse consultant services assist medical physical exam unaccompanied exist to optimize their decision making attorneys with full case by a medical history, examining the in- and decide if the potential case is worth development of a wide range of medical related jury alone does not allow for efficient pursuing. Obtaining the right information cases. Deborah can be and effective decision making. Intakes early allows litigators to identify poten- contacted at deborah@ drwardconsulting.com or for legal professionals are most effective tial barriers to the case or even outline (954) 290-7311.
20 | November 2018 Broward County Bar Association Barrister Case Law Update Attorney’s Fees, Attorney’s Fees, Attorney’s Fees: Recent Florida Decisions by Debra P. Klauber
Award of attorneys’ fees under section Counsel’s failure to sign certificate of ser- can be determined. 57.105(1) requires the trial court to make vice in proposal for settlement did not in- When an insured is seeking recovery under explicit findings that the case is frivolous validate the offer. a UM policy and also claims bad faith, the or devoid of merit. After analyzing the rules applicable to pro- Florida courts have held that the proper pro- Historically, a court could award fees under posals for settlement, and the filing of docu- tocol is a bifurcated procedure. First the in- section 57.105 only when there was a “com- ments in court cases, the appellate court re- sured is entitled to a jury verdict for the full plete absence of justiciable law or fact.” versed the trial court’s order finding that a amount of the insured’s damages. Second, However, in an effort to reduce frivolous proposal was invalid because counsel failed the insured may pursue the bad faith claim. litigation, the statute was amended in 1999 to sign the certificate of service. The court’s Here, the court found that the insured’s en- to broaden the entitlement to fees, and now dicta, however, noted that it does not “con- titlement to attorneys’ fees pursuant to a pro- allows the recovery of fees for claims or de- done nor encourage” a practice of failing to posal for settlement cannot be determined fenses that are unsupported. However, the sign certificates of service. Valle v. Flory, until the final judgment in the case, after the statute must be carefully applied to ensure 2D16-2848, 43 Fla. L. Weekly D1852 (Fla. bad faith claim is decided. that it is used to deter frivolous pleadings. 2d DCA Aug. 15, 2018). 21st Century Centennial Ins. Co. v. Walker, As such, the courts strictly construe both the 4D17-2937, 43 Fla. L. Weekly D2000 (Fla. notice requirement, and the requirement that Trial court properly allowed a contingen- 4th DCA Aug. 29, 2018). the trial court make the requisite findings cy fee multiplier in claim against property set forth in the statute. MC Liberty Express, insurance company. Statute related to prevailing party attor- Inc. v. All-Points Servs., Inc., 3D17-0961, 43 Because the contingency fee multiplier is neys’ fees based on a contractual provi- Fla. L. Weekly D1808 (Fla. 3d DCA Aug. 8, “no longer limited to rare and exceptional sion applies to claim seeking to recover 2018). circumstances,” the appellate court upheld credit card debt. the trial court’s decision to apply it in this A Florida appellate court held that a credit Media parties were not entitled to attor- property claim where the insurance com- card company’s suit for “account stated” neys’ fees under the Public Records Act pany refused to participate in the appraisal constituted an “action to enforce the con- where the government agency did not act process. Given the Florida Supreme Court’s tract.” As such, the court also agreed that the unlawfully. determination that the statutory fees in this defendant was entitled to recover prevailing- The appellate court refused to award fees to context are designed to discourage insurance party attorneys’ fees pursuant to section various media parties who requested public companies from contesting valid claims, and 57.105(7) after the claim against her was records from a state agency. The statute gov- reimburse insureds when they must enforce voluntarily dismissed. erning public records allows for the recov- their insurance contracts by way of formal Bushnell v. Portfolio Recovery Assoc., LLC, ery of fees where an agency “unlawfully” litigation, the court found that it was proper 2D17-429, 43 Fla. L. Weekly D2144 (Fla. 2d refuses to permit the record to be inspected for the trial court to apply a multiplier to the DCA Sept. 14, 2018). or copied. Even though the appellate court fee award when the competent, substantial Debra P. Klauber, Esq., found that the media parties were entitled to evidence supported it. Citizens Property a partner with Haliczer the requested records, it found that the agen- Ins. Corp. v. Laguerre, 3D15-2411, 43 Fla. Pettis & Schwamm, cy’s actions were not “unlawful” because it L. Weekly D1934 (Fla. 3d DCA Aug. 22. oversees the firm’s trial pursued, albeit unsuccessfully, an unsettled 2018). support and appellate area of the law. Accordingly, the request for practice and provides attorneys’ fees was denied. State Attorney’s Plaintiff’s proposal for settlement in UM/ guidance to litigators Office of the 17th Judicial Circuit v. Cable first-party bad faith litigation requires throughout Florida. Debbie can be reached News Network, Inc., 4D18-1336, 43 Fla. L. success on both UM claim and bad faith at 954-523-9922 or Weekly D1799 (Fla. 4th DCA Aug. 8, 2018). claim before entitlement to attorneys’ fees [email protected].
Broward County Bar Association Barrister November 2018 | 21 by Marsha D. Brownr Once again, holiday season is upon do not have to prepare or create a ting someone else to take a few us. With constant reminders of up- “perfect” holiday experience for tasks off your plate. If you don’t coming holidays and celebrations others. Holiday planning and cel- have time for the above, quick- through television commercials, ebrating often come with unan- fixes such as a 30-minute chair various advertisements, and retail ticipated obstacles and changes. massage, 10-minute power nap, or displays, we are constantly remind- Know that even if things do not go even a quick walk around the of- ed that the countdown to a chaotic exactly as you envisioned them, fice or building can work wonders time of year has begun. Many people you will still be able to create pos- to decrease stress. view this season as an exciting time itive and lasting memories with 5. Reach out to others for comfort and filled with love, care, and the holi- those you love. support. It is important to refrain day spirit. Many others find this time from isolating yourself during this of year to be a source of significant 3.Set aside time for yourself. Dur- time. If you have a trusted friend stress, anxiety, loneliness, isolation, ing this whirlwind season, we often or family member, reaching out to and depression. Attorneys are often get so caught up in trying to make them and talking about your feel- expected to manage not only their sure others are taken care of that ings, emotions, and frustrations own emotions surrounding this time we neglect to make time for our can be helpful during this time of of year, but those of their clients as own mental health and well-being. year. If you do not have a trusted well. Between stress at work and re- Schedule some time each week to go-to individual, there are a num- sponsibilities at home, this can seem take a break from the craziness of ber of excellent professionals who daunting and, at times, outright over- planning, shopping, preparing, etc. can provide support through diffi- whelming. Here are five tips to help While taking daily breaks is ideal cult times. manage stress during this season: (e.g., even 10 minutes per day will help you to regroup), you can start Note: If your feelings about the 1. Accept your feelings surrounding with taking 20 minutes per week holidays are ever accompanied by the holidays. Know that wheth- and then adding more time to each thoughts of hurting or killing your- er you love or dread this time of session as the holidays draw near. self, please get help immediately. year, it is ok. You may not feel as Call 911 or the National Suicide Pre- cheerful about this season as some 4. Create a new holiday experience, vention Lifeline at 1-800-273-TALK. around you may seem, or as you just for yourself. As holidays are You are never alone. believe you “should” feel. There is often a time of giving, give your- nothing wrong with that. For some self permission to create a new people, this time of year evokes holiday routine, designed to help memories of bad experiences and relieve your stress. For example, Dr. Marsha Brown significant losses, including lost schedule a weekly 60-minute mas- is a Florida licensed psychologist specializing family or loved ones. sage, set aside an hour each day to in forensic practice. She read a book or watch your favorite is currently working in 2. Set realistic boundaries and expec- show, or hire a personal trainer. To private practice where she conducts evaluations tations, both for yourself and those help lighten your load, outsource for criminal and family around you. You do not have to ac- some of your regular responsibili- court. You can contact Dr. Browan at mdbrown@ cept every task and/or responsibil- ties by hiring a meal delivery or forensic-experts.net or ity that is given to you. You also housecleaning service or by get- www.forensic-experts.net
22 | November 2018 Broward County Bar Association Barrister November calendar of events
1 Jury Improvement Luncheon 10 YLS 31st Annual Charity Golf 16 Judicial Jaunt #1 Time: 12:00 p.m. – 1:30 p.m. Tournament Time: 12:00 p.m. – 1:30 p.m. Venue: Tower Club Benefiting Experience Camps Venue: BCBA Conference Center Cost: $25 General Admission Time: 8:00 a.m. Cost: $20 BCBA Member; $30 Venue: Jacaranda Golf Club Non-member 2 BIG Lunch: Connected to Cost: $150 Single Player ; $500 Goodness Foursome 20 Trial Section CLE: IT in the Time: 12:00 p.m. – 1:30 p.m. Courtroom Venue: BCBA Conference Center 10 Guardianship Class-4 hr Minor Time: 12:00 p.m. – 1:30 p.m. No Cost Time: 9:00 a.m. – 1:00 p.m. Venue: BCBA Conference Center Venue: BCBA Conference Center Cost: $20 BCBA Member; $30 3 Guardianship Class - 8 Hour Cost: $100 Non-member Adult Time: 9:00 a.m. – 5:00 p.m. 14 West Broward CLE Luncheon 29 2018 BCBA Annual Holiday Venue: BCBA Conference Center Time: 12:00 p.m. – 1:30 p.m. Party Cost: $180 Venue: Cole Scott & Kissane, P.A. Time: 5:30 p.m. – 8:00 p.m. Cost: $20 BCBA Members; $30 Venue: NSU Art Museum Fort 8 CLE: Probate Bench, Clerk and Non-members Lauderdale Bar Roundtable Cost: No Charge BCBA Member; Time: 2:00 p.m. – 4:00 p.m. 14 Solo/Small Networking Dinner $25 Member Guest Venue: Jury Assembly Room Time: 6:00 p.m. - 8:00 p.m. (Room number 03320) Venue: Dave & Buster’s Cost: $15 BCBA Member; $25 Hollywood Non-Member Cost: $40 BCBA Member; $55 Non-member *$5 additional 8 YLS Golf Happy Hour after 11/07/2018 Save the Date! Visit our online Calendar for more Time: 5:30 p.m. – 7:30 p.m. information. Venue: Township Fort 15 After 5 - Eat. Drink. Connect. Lauderdale Sponsored by Williams Hilal Young Lawyers’ Wigand Grande, PLLC Law-LaPalooza 9 Investiture of The Honorable Time: 5:30 p.m. - 7:30 p.m. Sponsorships Available! N. Hunter Davis Venue: American Social Time: 8:30 a.m. – 6:30 p.m. Time: 1:30 p.m. No Cost Venue: Broward County Venue: Broward County Courthouse Courthouse Cost: $75 BCBA Member; $100 Room: #03320 Jury Assembly Non-Member Room
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