THE HILLSBOROUGH COUNTY BAR ASSOCIATION Tampa, Florida | March - April 2016 | VOL

LAWYERTHE HILLSBOROUGH COUNTY BAR ASSOCIATION TAmpA, FLORIdA | mARCH - ApRIL 2016 | VOL. 26, NO. 4 The 3 R’s of a Good Referral

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THE HILLSBOROUGH COUNTY BAR ASSOCIATION LAWYER MAR - APR 2016 | VOL. 26, NO. 4

divisions features 8 and events 6 6 hcba pasT presidenTs luncheon 12 Tips for inTeracTing WiTh Jurors by Judge Samantha Ward, Judge Lisa Campbell, and Judge Steven Stephens (with contributions from Michael Boucher, Kirk S. Davis and Stacey Callaghan 14 off The record WiTh The hon. richard a. lazzara by Michael S. Hooker 23 criMinal laW and Tax laW 31 secTions Join forces 31 Trial & liTigaTion secTion luncheon 3 Working ToWard 34 MeMbership luncheon JusTice for all Editor’s Message by Ed Comey 40 bar leadership insTiTuTe 4 exTraordinary leadership: Tours MoffiTT cancer cenTer living by “a higher 43 Judicial luncheon WiTh sTandard” Judges froM The second dca HCBA President’s Message by Carter Andersen 45 Thanks To all our fox 13 ask-a-laWyer 8 The chesTer h. ferguson volunTeers! laW cenTer: a Wonderful place for hcba MeMbers 57 rppTl secTion To call hoMe luncheon Executive Director’s Message 57 florida bar hosTs by John F. Kynes virTual career fair 10 accidenT reporT privilege 63 florida bar pro in criMinal cases bono aWards 34 State Attorney’s Message by Mark A. Ober

about the Cover This March, the PGA Tour will again visit the famed Copperhead Course in Palm Harbor for the Valspar Championship. Featured on the cover is 2015 Valspar tournament champion Jordan Spieth hitting an approach shot.

Photo credit: Al Messerschmidt.

MAR - APR 2016 | HCBA LAWYER 1 SEctIoNS 61 commIttEES 58

50 prenuptiAl AGreements Marital & Family Law Section by Martin Deptula 52 mediAtion resourCes 62 for lAwyers 18 eleventH CirCuit Mediation & Arbitration Section 24 diversity strikes A CHord Amends rules; proposes by Clark Jordan-Holmes and in All of us furtHer CHAnGes Constance d’Angelis Diversity Committee by Jessica Ronay Appellate Practice Section 56 tHird-pArty purCHAser by Dineen Pashoukos Wasylik riGHts in Community 49 lAw week 2016 CelebrAtes 20 stAtutory re-ConstruCtion: AssoCiAtion lAw HistoriC mirAndA deCision litiGAtion under tHe Real Property, Probate & Law Week Committee new CHApter 558 Trust Law Section by Amy Nath Construction Law Section by Tiffany Love McElheran 53 uCmj: for yesterdAy, todAy, by Frank T. Moya 58 soCiAl mediA And And tomorrow 22 tHe CArryover of immunity mArket mAnipulAtion Military & Veterans Affairs Committee from stAte to federAl Court Securities Law Section by Harold (Hal) W. Youmans Criminal Law Section by Andrew Warren 62 nAtionAl pro bono week: by Matt Luka 60 enjoy HArd work CelebrAtinG pro bono 26 tHomAs e. peniCk, jr., Solo & Small Firm Section from top to bottom elder lAw inn of Court by Raymond A. Haas Jr. Thirteenth Judicial Circuit’s Elder Law Section 61 tAX Attorney privileGes: Pro Bono Committee by Amy Bandow by Susan G. Haubenstock and ConfidentiAlity And Debra L. Dandar Completeness 42 tHe end of meAninGful use? Tax Law Section Health Care Law Section by Nehemiah Jefferson IN EVERY ISSUE by Kevin Rudolph 64 suinG A foreiGn 27 100 Club 46 immiGrAtion reform: (internAtionAl) defendAnt: 32 benefit providers wHere Are we todAy? initiAl steps 59 new HCbA members Immigration & Nationality Section Trial & Litigation Section 65 sAve tHe dAte by Maria del Carmen Ramos by Benjamin S. Briggs 65 AdvertisinG indeX 47 supreme Court tAkes 66 liAbility eXposure for 67 Around tHe AssoCiAtion two ip CAses work injuries Intellectual Property Section Workers’ Compensation Section 68 jury triAl informAtion by Dineen Pashoukos Wasylik by Anthony V. Cortese 68 ClAssifieds

THE HILLSBOROUGH COUNTY BAR ASSOCIATION editor offiCers ed Comey president: Carter Andersen president-elect: kevin m. mclaughlin; imm. past president: benjamin H. Hill iv Assistant editor secretary: Andrew jenkins; treasurer: robert j. scanlan luis viera LAWYER eX-offiCio executive director Chief judge ronald ficarrotta; judge laura e. ward; roberta Colton Chester H. Ferguson Law Center john f. kynes direCtors: 1610 N. Tampa St., Tampa FL 33602 dara Cooley Caroline johnson levine jacqueline simms petredis Telephone (813) 221-7777 paige A. Greenlee kristin A. norse Grace H. yang www.hillsbar.com AdvertisinG rachael Greenstein Cory person Call (813) 221-7777 s. Gordon Hill john A. schifino

(ISSN 1553-4456) THE HILLSBOROUGH COUNTY BAR ASSOCIATION Lawyer is published six times per year by the Hillsborough County Bar Association. Editorial, advertising, subscription, and circulation offices: 1610 N. Tampa St., Tampa, FL 33602. Changes of address must reach the Lawyer office six weeks in advance of the next issue date. Give both old and new address. POSTMASTER: Send change of address notices to Hillsborough County Bar Association, 1610 N. Tampa St., Tampa, FL 33602. One copy of each Lawyer is sent free to members of the Hillsborough County Bar Association. Additional subscriptions to members or firm libraries are $50. Annual subscriptions to others, $100. Single copy price, $15.00. (All plus tax.) The Lawyer is published as part of the HCBA’s commitment to provide membership with information relating to issues and concerns of the legal community. Opinions and positions expressed in the articles are those of the authors and may not necessarily reflect those of the HCBA. Submissions of feature articles, reviews, and opinion pieces on topics of general interest to the readership of the Lawyer are encouraged and will be considered for publication.

2 M A R - A P R 2 0 1 6 | H C B A L A W Y E R EDITOR’S MESSAgE Ed Comey - Law Clerk to U.S. Bankruptcy Judge Michael g. Williamson

Working Toward Justice for all

less than full justice is imperfect justice.

And justice for all.” Unfortunately for many Judge McEwen’s pro bono efforts, as Chief Justice Floridians, that guarantee — enshrined in our Labarga explained during the award ceremony, date back Pledge of Allegiance and the Florida to early in her career, when she was an active participant Constitution — is an empty promise. Although in the Bay Area Volunteer Lawyers Program. As a sitting the Florida Constitution guarantees that the judge, she is permitted to engage in activities intended to “courts shall be open to every encourage attorneys to perform person for redress of any injury,” pro bono services. So since being “an October 1, 2015, interim appointed to the bench in 2007, report by the Florida Judge McEwen has served on the Commission on Access to Civil Thirteenth Judicial Circuit Pro Justice found that a “large Bono Committee; helped organize category of moderate income a judicial pro bono summit to Floridians are effectively educate state and federal judges excluded economically from on how they can encourage pro access to justice because they bono service and contribute cannot afford to hire a lawyer and themselves; and helped produce a they do not qualify for legal aid.” video on bankruptcy basics for pro Presently, Florida legal services se debtors, which is a model for attorneys are only equipped to other courts across the nation. serve, at most, 20 percent of the At the award ceremony, Judge needs of indigent civil litigants. McEwen explained the motivation As the commission rightly behind her pro bono efforts: acknowledges, the consequences Everyone knows we really only of depriving low- and moderate- have justice for some. And we income Floridians access to justice can be dire: only have some justice for the rest of us. Less than full [T]he inability to obtain legal assistance often justice is imperfect justice. threatens their health and safety, undermines their Judge McEwen implored attorneys and judges to family structure, and puts at risk their housing “resurrect, reinvigorate, and reaffirm” the Florida Supreme and employment. Court’s One Campaign. For anyone looking for suggestions Recently, Bankruptcy Judge Cathy McEwen became on how to fulfill the One Campaign’s mission, Judge the first recipient of the Chief Justice’s Distinguished McEwen said to simply “Call Cathy at (813) 301-5082.” Federal Judicial Service Award for her efforts to solve I admire Judge McEwen for many reasons: She’s an this disturbing problem. The award, presented to Judge outstanding judge; she’s a fantastic mentor to current McEwen by Florida Supreme Court Chief Justice Jorge and former law clerks and interns; and her efforts on Labarga, “recognizes an active or retired federal judge behalf of the indigent are truly inspirational. And she is for outstanding and sustained service to the public, well-deserving of the award. But rather than call her to especially as it relates to the support of pro bono legal congratulate her on her accomplishing, “call Cathy at services.” Anyone who knows Judge McEwen knows her (813) 301-5082” to find out how you can help the poor commitment to pro bono services. access justice.

MAR - APR 2016 | HCBA LAWYER 3 HCBA PRESIDEnT’S MESSAgE Carter Andersen - Bush Ross, P.A.

extraordinary leadership: living by “a higher standard”

“never walk by a mistake.” — general ann dunwoody

n June 23, 2008, President george W. is critical to a life and career of extraordinary leadership. Bush nominated Ann Dunwoody as a general Dunwoody’s gracious and generous commitment four-star general in the United States to the Tampa community led her to agree to give our Army — the keynote address without any first woman to speaking fee or other achieve the four-star rank. requirements — the general Today, general Dunwoody is gave to us and asked nothing in Opresident of First 2 Four, LLC, return. general Dunwoody also a leadership mentoring and took the time to personalize 100 strategic company, and also copies of her book, “A Higher serves on the boards of several Standard,” and connect companies. In April 2015, individually with every one of general Dunwoody released her our members who wanted to book, “A Higher Standard.” meet her. general Dunwoody’s At the HCBA’s general actions — treating every person Membership Luncheon on she touched at our membership January 19, general Dunwoody lunch with dignity and respect gave our keynote address, and — were a lesson to us all. everyone in attendance learned how living by a higher standard Continued on page 5

4 MAR - APR 2016 | HCBA LAWYER HCBA PRESIDEnT’S MESSAgE Carter Andersen - Bush Ross, P.A.

Continued from page 4 mind when she wrote: “[I]n the future, there will be no female leaders. There will just be leaders.” This rings true general Dunwoody’s words were so powerful. She with everyone who attended the HCBA Membership shared that she never intended to write a book, and Luncheon and listened to general Dunwoody — there certainly never thought “a higher standard” was was one leader in the room that day. The rest of us were applicable to herself or any other small group. general fortunate to learn from general Dunwoody. Dunwoody realized in writing her memoir that the general Dunwoody’s stories and advice made me United States Armed Forces held each and every member think about two of my law partners, Amanda Buffinton of every service to “a higher standard” every day. She and Meredith Freeman. Amanda, a board-certified credited the military and everyone who serves for holding construction lawyer, and Meredith both focus their themselves to a higher standard — a standard that made practice on construction litigation and professional her the leader she became. general Dunwoody confessed liability defense. But what I see every day behind the she had no stories of purposely smashing barriers and scenes are two lawyers living “a higher standard” in leaving wrongdoers in her wake, but rather she shared everything they do. In addition to their incredible lessons on leadership — such litigation practices, Amanda as “never walk by a mistake,” and Meredith take the time general Dunwoody’s rule to give back and to lead that when something is through their efforts with the wrong, big or small, not to let “in the military, it is said American Bar Association it go but to fix it, and to hold that you can often fool Commission on Women in people accountable. the Profession; with both general Dunwoody also your boss, you can the Hillsborough County shared her most proud sometimes fool your Bar Association’s Diversity accomplishment in the Committee and Bush Ross’s military: “In the military, it is peers, but you can never Diversity Committee; and said that you can often fool fool your soldiers.” co-authoring articles such as your boss, you can sometimes “Retention and Promotion fool your peers, but you can — general ann dunwoody of Female Attorneys – What never fool your soldiers.” Can We Do Better?” that general Dunwoody was was published in the Lawyer widely complimented as a magazine. Amanda and “soldier’s soldier” — her Meredith are both leaders in greatest accomplishment was the general Dunwoody earning the respect of her soldiers — a lesson that we mold — soldier’s soldiers — earning the respect of their lawyers can take back to our offices or firms or companies. peers and their soldiers. general Dunwoody shared stories of the generations general Dunwoody shared with us the exciting news of military officers in her family, and how her that we will be hearing a lot about “A Higher Standard” competitiveness and other skills learned as a three-sport in Florida in 2016. Her book was selected as the 2016-2017 athlete served her so well in the United States Army. Common Reading Program Selection at the University general Dunwoody recounted inspirational and moving of Florida. That means all 8,000 students entering UF in contrasts between a 1995 high-level military meeting she 2016-2017 as graduate candidates or undergraduates will attended as an Army colonel, where she was the only receive a copy of “A Higher Standard” to create a shared woman in the room, and her 2014 speech to Facebook’s experience by all UF students, and general Dunwoody north American Women’s Leadership Day. As Facebook will deliver the keynote address to the Class of 2020 at COO Sheryl Sandberg said of general Dunwoody: “I new Student Convocation in August. I hope that many watched her inspire 1,500 women, offering both practical of our members will get to share the experience of advice and encouragement. She told us to put our passion hearing from general Dunwoody and reading “A before our fear.” Sandberg admitted that she did not know Higher Standard” with our college-aged children! We general Dunwoody when she wrote her book “Lean In,” were fortunate to hear from general Ann Dunwoody, a but general Dunwoody is exactly who Sandberg had in most thoughtful and inspirational leader and speaker.

MAR - APR 2016 | HCBA LAWYER 5 HCBA PAST PRESIDENTS LUNCHEON

The hcba was pleased to host a large gathering of our past presidents on december 14 for the annual past presidents luncheon. These leaders of the local legal community took the time to catch up and reminisce about their experiences with the hcba. Thank you to the luncheon’s sponsor:

6 MAR - APR 2016 | HCBA LAWYER Stoler • Russell

MAR - APR 2016 | HCBA LAWYER 7 ExECUTIVE DIRECTOR’S MESSAgE John F. Kynes - Hillsborough County Bar Association

The chester h. ferguson law center: a Wonderful place for hcba Members to call home

“nothing happens unless first a dream.” — carl sandburg

As an aside, I would be remiss if I didn’t point out he Chester H. Ferguson Law Center, which that there is a discount for HCBA members on officially opened for business in 2008, is building rentals. something that all HCBA members can rightfully be proud of. *** For years leading up to the official ribbon cutting, The concept of the law center goes back to the 1970s however, there were some who questioned the wisdom of when HCBA leaders began looking at other Bar buildingT a permanent home for the HCBA and Bar buildings across the country. In the mid-1990s, HCBA Foundation. Even after the decision was made to go leaders formed a blue-ribbon committee to explore the forward with formulating plans, others wondered whether possibility of a permanent facility. Later, when the the facility would ever get built, especially given all the decision was made to move forward, a building financing and construction challenges that lay ahead. Still committee was formed. others questioned just how much the facility would be In the meantime, in 1996, the Bar Foundation was used after completion. created, and it would assist with the building financing and now, going into its eighth year of operation, I believe fundraising. William Kalish served as the Foundation’s it’s safe to say the Ferguson Law Center, or the Chet, has first president. fulfilled most, if not all, of the expectations of those who Interestingly, the parcel where the Ferguson Law originally supported the concept. Center is now located is land that was formerly home to gwynne Young, with Carlton Fields, was directly the headquarters of Tampa’s police department. involved in many important aspects of the law center’s William A. gillen Jr. chaired the Bar Foundation’s planning and development. Young served as president capital campaign to help fund the 17,000-square-foot, state- of the HCBA and Bar Foundation, and later as Florida of-the-art facility, which ultimately cost $6 million to Bar president. construct. The Bar Foundation, which technically owns the Although there were some serious challenges early building, worked to secure financial commitments and on, the project helped bring members of the legal provided naming rights for the major conference rooms community and other civic leaders together for a and meeting spaces in the building. common purpose, Young told me recently. In June 2006, there was a groundbreaking ceremony. “The law center has helped create a great sense of Less than two years later, close to 1,000 people attended pride,” Young said. “Overall, I think everyone would the lavish ribbon-cutting ceremony in February 2008. agree that it has been a tremendous success.” *** On any particular day, the law center is a hub of activity. In fact, you might be surprised to learn there Since its creation, the Bar Foundation’s role in the were 712 individual meetings and events held at the law community has continued to grow and evolve. center last year alone. Working to fulfill its charitable mission, the Foundation This includes numerous HCBA section and committee has, over the years, contributed more than half a million meetings, luncheons, and CLEs; Bar Foundation dollars in grants to local legal-related nonprofits from the program meetings and legal mediations; and other events proceeds generated at its annual Law & Liberty Dinner. hosted by outside groups, such as Inns of Court and the Tampa Downtown Rotary. Continued on page 9

8 MAR - APR 2016 | HCBA LAWYER ExECUTIVE DIRECTOR’S MESSAgE John F. Kynes - Hillsborough County Bar Association

Continued from page 8 in the community, establishing a building endowment and a reserve fund, and developing necessary staff Darlene Kelly, the Foundation’s executive director, resources to support and manage the Foundation’s also continues to effectively manage the Thirteenth future growth. Circuit’s Residential Mortgage Foreclosure “Our focus is on growing the Foundation and Mediation Program, which generates funds for the making it an important part of the legal community Foundation and provides an important service to the and the community as a whole,” said Roberta Colton judiciary and Hillsborough County residents. of Trenam Law, who is the current Bar Foundation In addition, I can report that the Foundation’s president. “I’m very excited about the direction the fundraising efforts are now focused on its charitable Foundation is headed.” goals and maintaining the law center as the hub of Finally, please plan to attend the Foundation’s 11th the local legal community. Annual Law & Liberty Dinner on May 19 at the Looking to the future, the Foundation’s board Hilton Tampa Downtown. national political analysts recently approved a long-term strategic plan. The Mark Halperin and John Heilemann with Bloomberg plan focuses on a wide range of topics, including Politics will be the featured speakers. building greater awareness of the Foundation’s work See you around the Chet.

MAR - APR 2016 | HCBA LAWYER 9 STATE ATTORnEY’S MESSAgE Mark A. Ober - State Attorney for the Thirteenth Judicial Circuit

accident report privilege in criminal cases

certain evidence obtained from the driver at the crash scene is not covered by the accident report privilege.

ur streets can be dangerous. In 2014, In addition, some statements relating to a crash Florida experienced over 340,000 investigation may be admissible. Statements that are reported traffic crashes.1 While the volunteered spontaneously to the world at large may not majority of crashes are civil in nature, be protected by the privilege.10 Where the defendant is there are times when those crashes advised that a criminal investigation has begun and has become criminal. When the facts of a particular crash lead been properly advised of Miranda warnings, subsequent to a criminal investigation, law enforcement must obtain statements by that motorist may be admissible.11 Where Oadmissible evidence for use in criminal prosecution. The a defendant has left the scene of an accident and failed accident report privilege may apply to statements made to to report the accident, the privilege would not apply to a the officer during the investigation and could limit the use subsequent non-custodial interview.12 of those statements in trial. My office seeks to keep our The accident report privilege community safe. When a traffic provides that a “crash report crash involves criminal activity, made by a person involved in a we build our case on admissible crash and any statement made by evidence to secure a conviction. such person to a law enforcement officer for the purpose of 1 Florida Department of completing a crash report ... shall Highway Safety and Motor be without prejudice to the Vehicles, Traffic Crash Facts person so reporting.”2 Statements Annual Report 2014, https:// that fall within the privilege firesportal.com/Pages/Public/ cannot be used as evidence in a DHSMVPublishedDocuments/ criminal trial.3 “The purpose of Current_Year/Crash_Facts_ the accident report privilege ... is to encourage people to 2014_as_of_07-30-2015.pdf, (last visited January 11, 2016). make a true report of the accident in order to facilitate 2 § 316.066(4), Fla. Stat. (2014). the ascertainment of the cause of accidents, thus 3 Id. furthering the state’s ultimate goal of making the 4 Dep’t of High. Saf. & Motor Veh. v. Corbin, 527 So. 2d highways safer for all of society.”4 The privilege protects 868, 871 (Fla. 1st DCA 1988). a motorist’s Fifth Amendment right to be free from 5 State v. Whelan, 728 So. 2d 807, 810 (Fla. 3rd DCA 1999). testimonial compulsion when reporting an accident.5 6 State v. Edwards, 463 So. 2d 551, 554 (Fla. 5th DCA 1985). Certain evidence obtained from the driver at the crash 7 § 316.066(4), Fla. Stat. scene, however, is not covered by the accident report 8 Evans v. Hamilton, 885 So. 2d 950, 950-51, (Fla. 4th privilege. The accident report privilege applies only to DCA 2004). statements; observations made by law enforcement 9 Whelan, 728 So. 2d at 810. officers are not protected.6 The results of lawfully 10 Conner v. State, 398 So. 2d 983, 983 (Fla. 1st DCA 1981). obtained breath, urine, and blood tests are not included 11 See State v. Marshall, 695 So. 2d 686, 686 (Fla. 1997); in the privilege,7 nor is the refusal to submit to such tests.8 State v. Norstrom, 613 So. 2d 437, 440-441 (Fla. 1993). The privilege also does not cover non-testimonial field 12 See Cummings v. State, 780 So. 2d 149, 149 (Fla. 2d DCA sobriety exercises.9 2001); State v. Hepburn, 460 So. 2d 422, 425 (Fla. 5th DCA 1984).

1 0 MAR - APR 2016 | HCBA LAWYER Tampa American Inns of Court

information & Membership application deadline: June 1, 2016

The AmericAn inns of courT TAmpA chApTers inviTe you To Apply for membership.

The American Inns of Court is a national organization designed to improve the skills, professionalism, and ethics of the bench and bar. Tampa’s civil litigation Inns are The J. Clifford Cheatwood Inn, The Ferguson-White Inn, The Tampa Bay Inn, and The Wm. Reece Smith Litigation Inn. Each Inn limits membership to approximately 80 members who are assigned to pupillage groups of eight or nine members. Pupillage groups include at least one judge as well as attorneys of varying experience and areas of practice. The Inns usually meet monthly from September through May for dinner programs, except for The Wm. Reece Smith Litigation Inn which meets monthly for a weekday luncheon. Inn members usually earn one hour of CLE credit for each program attended. Each year, the Inns invite new members to join for varying membership terms. Members are selected based upon their length and area of practice. Discounted memberships are available for full-time law students who wish to apply. If you are interested, please apply promptly! (Please note: Current Inn members who wish to renew membership in their present Inn need not apply.)

Name:______Firm:______Address: ______Email address: ______Years in practice and specialty? ______Prior experience with any Inn of Court? ______Have you previously applied? ______When? ______Have you been referred to an Inn? If so, by whom? ______List any weekday evening you cannot attend meetings: ______Do you have a preference for a particular Inn? ______Please attach a current resume limited to one page in length.

forward application package to: hillsborough county bar association, attn: John kynes, chester h. ferguson law center 1610 n. Tampa st., Tampa fl 33602. fax (813) 221-7778.

MAR - APR 2016 | HCBA LAWYER 1 1 SPECIAL FEATURE Judge Samantha Ward, Judge Lisa Campbell, and Judge Steven Stephens

Tips for interacting with Jurors

The more attorneys understand what is important to jurors, the more successfully they can cultivate their relationship with them.

t the Hillsborough County Bar Association’s recent 19th Annual Bench Bar Conference “View from the Box: The Jury Speaks,” jurors were asked to provide feedback regarding their likes and dislikes concerning the lawyers who litigated before them. The moreA attorneys understand what is important to jurors, the more successfully they can cultivate their relationship with them. Judges also gleaned information from jurors’ Lawyers Should Be Succinct responses. That insight has assisted their communication One aspect of lawyering that jurors seemed to in the courtroom (and may perhaps even get the jurors uniformly dislike was the attorneys’ propensity to larger, sound-proof bathrooms, which was specifically pontificate. Jurors hate when lawyers spend excessive requested.) This article summarizes the key takeaways. amounts of time going over things that could be covered quickly. For instance, jurors’ comments included, “I would Lawyers Should Use Helpful Visual Aids try to reduce the amount of repetition of some Many jurors expressed an appreciation for visual aids. information” and “information brought forth would have They have a particular interest in attorneys using more only needed to be presented once and not 10 times.” get storyboards with pictures. They found attorneys who were to your point immediately. Especially with younger jurors, able to convey their cases in a story-like manner were your audience will not have the patience for the longer more effective in communicating with the jury. storytelling of old. Limit your opening statement to the In today’s world of constant multimedia stimulation, relevant points and avoid buildup. Jurors appreciate jurors expect to see the case and not merely hear a efficiency and will be less likely to lose interest or zone recitation of evidence. The presentation need not be high- out. While brevity is a good rule of thumb, bear in mind, tech, but it must be presented in a way that appeals to however, that it sometimes is not your best friend. In many more than one sense. Your visual aids should be simple trials, jurors take notes. given that, you want to make sure enough for the jurors to understand but interesting that you fully develop all of your points so that the jurors’ enough to captivate their attention. Consider from the notes reflect your “best” story. Make sure to fully present outset the best use of visual aids to display key documents, your evidence. But set expectations with the jurors: emails, maps, and photographs. Explain why you may become heated or get carried away Additional suggestions from the jurors included using — you are zealously representing your client. Also, the demonstrative evidence for every witness and not merely “group dynamic” is often at play in jury deliberations. some of them. Jurors appreciated these supplements to the Judges often remind jurors that partial testimony from spoken information they are presented in such a brief their notes is not the most reliable, and they try to avoid amount of time. Remember: never present your case in an reading only part of a witness’ testimony back to the jury. entirely spoken format. Also remember: Jurors notice when The judicial consensus was to read the entire testimony the visual presentation complements the spoken format. to the jury to avoid bias. Your visual aids should not merely serve as a distraction. Continued on page 13

1 2 MAR - APR 2016 | HCBA LAWYER SPECIAL FEATURE Judge Samantha Ward, Judge Lisa Campbell, and Judge Steven Stephens

Continued from page 12 opinion. And when the juror stops trusting the attorney, the juror stops trusting that attorney’s case. Take Lawyers Should Never Present Themselves as proactive steps to prevent opponents from taking Smarter Than the Jury advantage of these advertising efforts in front of a jury. Unsurprisingly, jurors do not want attorneys to make A recent concern is some advertising now contains it appear they are smarter than the jurors. Jurors statements that attorney “x” was able to recover a sum appreciate the “average Joe.” Avoid legalese. Jurors certain for a litigant. Jurors may see this as a floor or a expressed an especially high regard for attorneys who ceiling in a case. Consider how to question jurors were willing to acknowledge their own mistakes rather regarding the juror’s beliefs on damage caps and what than behaving as if they were infallible. Many jurors may be too much without stating a specific figure. expressed a great deal of confidence in their abilities to understand the proceedings and to adequately process the Judges’ Findings of Fact data to reach a fair result. Jurors do not appreciate an Judges have reflected on the jurors’ responses that attorney “talking down” to them. Some noted that it was revealed certain aspects of juror interaction. It is clear off-putting when the attorney acted as though the jurors how a judge treats jurors makes a vivid impression on the “did not understand anything.” Conversely, an attorney jury. According to the jurors interviewed, who conveys “mutual respect” with the jury was jurors should be treated like “guests in highlighted as being key and appreciated. Jurors felt as your home.” This includes having bailiffs though they were making the “right” decision. Attorneys walk jurors to their cars, if late at night; should not appear to criticize a juror for making a explaining the mechanics of the trial “wrong” decision. process and the reasoning behind it; explaining why the lawyers raise Lawyers Should Limit Objections to the objections and why breaks occur during Minimum Necessary objections; and explaining the difference Some objections are necessary to preserve appellate between legal and factual arguments rights and to create a robust record. Jurors, however, made to the court. expressed distaste for frivolous and overused objections. The participants in the Bench Bar They noted that “objections can get annoying,” Conference hope these tips will aid particularly when they “came too frequently” and were everyone in making the trial experience “redundant and without merit.” Object when necessary better for all involved. but consider controlling your use of them. Authors: Judge Samantha Ward, Judge Lawyers Should Be Wary of Advertisements Lisa Campbell, and Judge Steven Stephens Many attorneys saturate the media with (with contributions from Michael Boucher advertisements to generate business. Bad advertisements - TCS; and Kirk S. Davis and Stacey may be used against an attorney by tainting a juror’s Callaghan - Akerman, LLP)

Are you interested in sponsoring the next Bench Bar Conference or another one of the HCBA’s great events? Call (813) 221-7777 for information on sponsorship opportunities.

MAR - APR 2016 | HCBA LAWYER 1 3 SPECIAL FEATURE Michael S. Hooker - Phelps Dunbar, LLP

off the record with the hon. richard a. lazzara

“i always like to tell lawyers that we judges know that you talk about us. Well, we talk about you, too!”

he following is an edited excerpt of an were instructed not to stay on the phone too long interview with the Hon. Richard A. because people would call up the house and say, Lazzara, United States District Court, “I need Tony to come out and deliver some fuel oil Middle District of Florida, Tampa Division. to us.” He was a very ambitious man, a very hard- Q. Can you tell us a little about what it was like growing working man. Tup in Tampa? Q. Did you ever consider following in his footsteps? A. I had a wonderful childhood growing up in Tampa. A. Although I admired him a lot, business was not my I had two wonderful parents, who provided for all forte, but my younger brother, Mike, did go into my needs, and three wonderful brothers. Although business with him. we were competitive, we loved and supported each Q. You attended Jesuit High School, then went to college other very much. I had an extended loving family of at Loyola new Orleans, then came back to Florida to uncles, aunts, and cousins on both my mother’s and attend law school at the University of Florida. Was it father’s sides of the family. As we sit here now, I can always your intent to come back to Florida? look out my window to the north and see my old A. It was always my intent to come back to Tampa. neighborhood. I grew up three blocks north of the I was born and raised here. I had no ambition to north Boulevard Bridge — on the southwest corner practice law anywhere else. of Francis and north Boulevard. So I can gaze out Q. here every once in a while and see where I used to You had a variety of practice experiences before play and get into mischief as a kid. It was a becoming a judge. You were an assistant county wonderful life. solicitor and an assistant state attorney. You were also in private practice for several years. Which did Q. I understand your father was in the oil business. you enjoy the most? A. Yes, he was a petroleum marketing jobber. He started out selling fuel oil, and during the cold months, we Continued on page 15

1 4 MAR - APR 2016 | HCBA LAWYER SPECIAL FEATURE Michael S. Hooker - Phelps Dunbar, LLP

Continued from page 14 guilt. I remember interviewing the young man who had been A. I enjoyed all of them, convicted, and he told me, “I although a lot of people don’t know what I’m doing here. may not know what an I didn’t do this,” and he convinced assistant county solicitor is. me. In the course of investigating I remember I gave a speech my client’s case, I was able to one time and mentioned that convince the state attorney that I was an assistant county not only was my client innocent, solicitor, and everybody and I mean truly innocent, but looked at me with these also this gentleman, his name strange looks. Before Article was Brett Bachelor, was truly V passed in the Florida innocent. As a consequence, his Constitution in 1972, some conviction was vacated, and the counties in addition to having State Attorney’s Office nolle a state attorney, had a county prossed the case, and he was free. solicitor, and the county I think he spent one year in jail. solicitor was responsible for In fact, as fate would have it, the prosecuting everything from person who actually committed second-degree murder on down. the murder was indicted many years later. Q. Is there any unique or memorable case that stands Q. When did you decide you wanted to be a judge? out from your private practice days? A. When I was at the University of Florida Law A. As a matter of fact, there is a case. I was retained School, I became involved with the Honor Court. to represent a gentleman who was charged with I later became Chancellor of the Honor Court, first-degree murder. He was charged along with a and it was a very interesting experience. I presided co-defendant. The co-defendant was apprehended over several trials in which students were accused first and went to trial and was convicted of second- of violating the Honor Code by cheating, and degree murder and given a substantial sentence. I enjoyed that experience. I felt maybe that was And then my client was apprehended, and I was what I would like to do someday. retained to represent him. I investigated the case, and it didn’t make sense in terms of my client’s Continued on page 16

MAR - APR 2016 | HCBA LAWYER 1 5 SPECIAL FEATURE Michael S. Hooker - Phelps Dunbar, LLP

Continued from page 15 through it all, and I enjoyed every position that I’ve had. I think my time on the Second District Court Q. Your background as a judge is obviously varied of Appeal really helped me in my new position here insofar as you’ve served as a county court judge, a as a district judge because I can anticipate possible state circuit court judge, an appellate court judge on errors and make sure I don’t make them. the Second District Court of Appeal, and now a Q. What advice would you give to a lawyer who might federal district court judge. How do you think your be thinking about pursuing a judicial career? diverse background has shaped you as a jurist? A. Develop an unquestioned reputation from the A. Each position was different and brought different outset, for honesty, integrity, and for being prepared. challenges. As a county court judge, I was just I always like to tell lawyers that we judges know that inundated with cases. In fact, that experience really you talk about us. Well, we talk about you, too! And helped me understand and become efficient at case I always try to impress whenever I am speaking to a management. When I became a circuit court judge, group of lawyers that your reputation precedes you I was immediately thrust into the Criminal into the courtroom. So make sure that when you Division. I had about 700 pending cases at that walk into that courtroom to meet a judge for the time. And again I had to learn good case first time that whatever that judge has heard about management techniques. I really enjoyed my time you from a colleague is nothing but good things in on the appellate bench; it was just a world of terms of your work ethic, your professionalism, your difference. It was more relaxed, and I had two law ethics, and your honesty and integrity. clerks because as a county court judge and circuit court judge back then, it was just me and my Q. Speaking of reputation, you have a reputation of judicial assistant, Ms. Hartman. So when I was on being extremely well prepared on the bench. What the Second District Court of Appeal and I had two do you typically do to prepare for hearings? — we didn’t call them law clerks, we called them A. I read and research as if I was preparing to argue staff attorneys — I thought I was in heaven having a case before a judge, before a jury, or before an these two accomplished people assisting me. And appellate panel. If the lawyers are going to take the then I came here, and I don’t know if you time to brief issues, file motions, file memoranda, remember back then, but we had the “rocket I have an obligation as the judge to read those docket.” I think I had 700 pending cases, civil cases, thoroughly and to do my own independent research. plus a rather extensive criminal docket. Again I had to utilize my case management skills. But we got Continued on page 17

1 6 MAR - APR 2016 | HCBA LAWYER SPECIAL FEATURE Michael S. Hooker - Phelps Dunbar, LLP

Continued from page 16 really sophisticated, you had an easel, and you had exhibits blown up and you put them on the easel. Q. If you could offer one piece of advice to lawyers now we have all this technology to aid lawyers in about how they can better assist you in resolving presenting their case to a judge or jury. disputes they bring to court, what would that Q. I understand you’ve been seen riding a bicycle advice be? downtown sometimes on your lunch hour. Have you A. Try to resolve them before you come to me. We have always been physically active? Local Rule 3.01(g), which requires that lawyers A. I’ve always tried to stay physically active ever since confer before they file certain motions, but I find I was a child. In fact, one of my routines when I’m that most lawyers just don’t communicate anymore here at the office is I work out. The U.S. Marshals personally. Everything is by text; everything is by have a full-service gym on the third floor. I have access email. So when I receive a discovery motion — to it, and I try to go down there every day I’m here. because I do all my own discovery practice — and it Q. You reportedly like spending time with family and has a 3.01(g) certification to the effect that I sent an friends. Can you tell us a little about your family? email or a letter and I haven’t heard back, that motion is denied without prejudice with the A. My wife just retired from the University of South directive that counsel are to confer personally — and Florida a few years ago. She was an academic I italicize personally in the order — “within so many advisor in the Honors College. Before that, she days, and if you cannot resolve your discovery worked in the Admissions Office. now she’s dispute, and the motion is refiled, I’m going to have enjoying a well-deserved retirement. My son has you here on short notice.” Many times I don’t hear returned home from Toronto after six years. He’s anymore about the matter. obtained a bachelor’s, master’s, and a Ph.D., all in the area of humanities. He’s been very helpful to us Q. You moved to senior status a few years ago. Has as we grow older. your caseload and the type of cases you preside over Q. changed as a result? You obviously have been a dedicated lawyer and jurist for a long time now. What sort of things do A. One of the great things about taking senior status is you like to do away from the office to relax and get that you can pick the kind of cases that you want, away from the stress? and you can also advise the clerk not to assign you A. certain types of cases. There are certain cases that I like reading. I used to work in the yard a lot, but I don’t take anymore. But I do maintain enough of now we’ve downsized. We moved, getting ready to a caseload to continue to be able to have two law sell our other home in Lutz. I also enjoy watching clerks and my judicial assistant. Plus I offer my the History Channel and programs of that nature. services to the active district judges when their Q. Last question. If you had a chance to go back and schedules are hectic, if you will. I’ve tried several do it all over again, would you choose the same cases for them over the last two to three years. career path? Q. You’ve been a judge now for almost 30 years. What A. Absolutely. Without hesitation. I always wanted to would you say is the most significant thing that’s be a lawyer. I only hope I did a credible changed about the way lawyers practice law? job as a lawyer. After that I wanted to be A. The technology. Back in the old days, when I would a judge. I realized that dream, and I also try a case, and I wanted to demonstrate something hope I did a credible job as a judge in all to the jury, through a witness, you would have the the judicial positions that I have held. witness step down, put a blackboard in front of the jury, and you would have the witness diagram the Author: Michael S. Hooker - Phelps crime scene or the accident scene, or if you were Dunbar, LLP

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MAR - APR 2016 | HCBA LAWYER 1 7 elevenTh circuiT aMends rules; proposes furTher changes Appellate Practice Section Chairs: Jared Krukar - Butler Weihmuller Katz Craig, LLP; and Mariko Outman - Florida Second DCA

court proposed hasn’t established several more The eleventh circuit a written briefing amendments, schedule. 11th most of which now allows a Cir. R. 31.2. are designed to first request for Any request for ensure a clear an extension and accurate extension of time greater than electronic record of up to 14 days 14 days still on appeal. requires (instead of seven). The Eleventh consultation with Circuit now opposing counsel n December 1, 2015, allows a first and a written the Eleventh Circuit request for motion, and adopted several extension of time of up to 14 the first request must still be made changes to its Local days (instead of seven) — without at least seven days in advance. Rules and Internal Operating having to certify pursuant to The court also amended the OProcedures, granting the clerk 11th Circuit Rule 26-1 that the rules for filing a Certificate of wider latitude in granting requestor conferred with opposing Interested Persons and Corporate extensions to the briefing schedule counsel about the extension — Disclosure Statement (CIP) to and clarifying its corporate which can be granted by the clerk not only require the appellant or disclosure and attorney admissions on a telephonic request showing requirements. Three days later, the good cause, so long as the court Continued on page 19

1 8 MAR - APR 2016 | HCBA LAWYER elevenTh circuiT aMends rules; proposes furTher changes Appellate Practice Section

Continued from page 18 creditor’s committee members, court clerks to ensure that and any entity that may be affected documentary exhibits are included petitioner to file a CIP within by the decision in bankruptcy in the electronic record on appeal, 14 days of docketing of the appeal appeals. 11th Cir. R. 26.1-2. and they would forbid clerks and complete the Web-based Any amendments to the CIP from returning exhibits until an CIP form the same day, but to must be brought to the court’s electronic copy is made. The require all other parties to file attention, both in briefs and proposed changes would also a response to the CIP within through the Web-based CIP. ensure that photos and other 14 days that either indicates the 11th Cir. R. 26.1-4. non-documentary exhibits are part CIP is correct or adds additional Finally, the attorney admission of the record. Proposed 11th Cir. interested persons or entities. rules now impose a continuing R. 11-3. The court also proposes 11th Cir. R. 26-1(a). The rule obligation to notify the court if filing Internet material on the now clearly states that failure to an attorney’s status with any docket rather than in a separate complete the separate Web form other Bar lapses, and they make file maintained by the clerk. will delay the case and may result clear that attorneys applying for Expect the in sanctions. 11th Cir. R. 26-1(b), admission to the Bar or to appear proposed changes 26.1-5. The rule change also pro hac vice must be in good to go into effect clarifies the parties that need to standing elsewhere. 11th Cir. R. in July. be identified in various kinds of 46-1, 46-4; 46-7. Renewal fees cases, speaking specifically to may now be paid online. Author: Dineen including the identity of the victims The December 4 proposed Pashoukos Wasylik - in criminal appeals, and the debtor, changes would direct the district 3 Legal

MAR - APR 2016 | HCBA LAWYER 1 9 sTaTuTory re-consTrucTion: liTigaTion under The neW chapTer 558 Construction Law Section Chairs: Erik Raines - Hill Ward Henderson; and Edward J. Kuchinski - Sivyer, Barlow & Watson, P.A.

claim without While H.B. 87 further legal made various other process “through of the several other modifications to confidential modifications chapter 558, the settlement changes to section negotiations.” imposed by h.b. 87, 558.004(1)(b) While this change those made to could prove most rings true to the significant to section 558.004(1)(b) legislative intent of litigators, as the chapter 558, other appear most inherently vague changes imposed noteworthy. term “undue ffective October 1, 2015, by H.B. 87 may burden” may Florida House Bill 87 prove to further become a key (H.B. 87) implemented impede pre-suit point of contention significant changes to resolution of among parties to chapter 558, Florida Statutes. Both construction defect claims. the pre-suit phase. Claimants will Ethe previous and current versions Of the several other undoubtedly argue that defects of chapter 558 require a claimant modifications imposed by H.B. 87, need not be revealed pre-suit to provide written notice to those made to section 558.004(1)(b) through destructive or other testing, construction or design professionals appear most noteworthy. while respondents will assert that allegedly responsible for defects or Specifically, section 558.004(1)(b) the defect is unascertainable via deficiencies. Upon notice, the now includes the phrase “if a visual inspection. Respondents professionals must timely review known,” modifying the requirement may further argue that incurring the claims, inspect the property, that a claimant identify the damage costs for destructive testing or and respond. The respondent may or loss resulting from the defect. identification of unknown damage avoid litigation by offering repairs Further, the need for visual or loss resulting from the defect and absorbing the associated costs inspection and identification of would be unduly burdensome. or issuing a monetary settlement. defects was emphasized since H.B. It is foreseeable that disputes The respondent may also dispute 87 does not impose any requirement of this nature will become more a claim in part, or in its entirety. on claimants to “perform destructive prevalent and complex in cases In the event the claim is not or other testing for purposes of involving condominiums, multi-unit resolved, litigation may ensue. [a 558] notice.” Although this developments, and other large-scale Although a key reason for the alleviates the need for claimants projects. Once parties to a enactment of chapter 558 in 2003 to incur the often exorbitant costs construction defect claim reach was to reduce litigation, a myriad associated with destructive or this point pre-suit, the negotiations of claims still plagued the courts. other investigative testing prior to encouraged by H.B. 87 will Therefore, governor Rick Scott placing a construction or design ultimately diminish, leaving signed the latest version of chapter professional on notice of a defect litigation as the 558 into law in an effort to better claim, section 558.004(1)(b) was inevitable method facilitate pre-suit resolution. That further modified to require a of recourse. effort was highlighted in the claimant to identify “the location revisions made to section 558.001, of each alleged construction defect Author: Florida Statutes, which now states sufficiently to enable the responding Frank T. Moya - that parties to a construction defect parties to locate the alleged defect Quintairos, Preito, dispute must attempt to resolve a without undue burden.” Wood & Boyer, P.A.

Get involved in the Construction Law Section today! Contact Chairs Erik Raines or Ed Kuchinski.

2 0 MAR - APR 2016 | HCBA LAWYER

MAR - APR 2016 | HCBA LAWYER 2 1 The carryover of iMMuniTy froM sTaTe To federal courT Criminal Law Section Chairs: Matt Luka - Trombley & Hanes; and Justin Petredi s - The Law Office of Justin Petredis, P.A.

except in the many individuals case of judicial face the dilemma immunity, of providing immunity is testimony in a typically a state proceeding creation of that could subject statute, its them to federal application varies prosecution. from state to state In Murphy v. and by the federal Waterfront government. In Commission of he constitutional Florida, section New York Harbor, protection against 914.04, Florida 378 U.S. 52, 79 self-incrimination is one Statutes, allows (1964), the of the most important a court or state Supreme Court although a state rights afforded by our state and prosecutor to barred the federalT constitutions. It can be grant immunity prosecutor has the federal asserted in any proceeding — for investigative power to confer state government civil or criminal, administrative purposes. from using state or judicial, or investigatory or Section 914.04 immunity, many testimony (or adjudicatory — in which the “previously individuals face the the fruits of witness reasonably believes that the provided for that testimony) information sought (or discoverable transactional dilemma of providing compelled by as a result of his testimony) could immunity, but testimony in a state a grant of state be used in a subsequent state or in 1982 the immunity in proceeding that federal criminal proceeding. legislature order to obtain Kastigar v. United States, 406 U.S. amended the could subject them a federal 441, 444-45 (1972). But this right statute to provide to federal prosecution. conviction. can also impede the investigation for only use and “After Murphy, of crimes. The law of immunity is derivative use the immunity the means by which “the prosecutor immunity.” Zile v. option open to can loosen lips the Constitution State, 710 So. 2d the Executive would otherwise permit to remain 729, 733 (Fla. 4th DCA 1998). Branch could be exercised only on sealed.” Tsavaris v. Scruggs, 360 So. Although a state prosecutor has 2d 745, 749 (Fla. 1978). Because, the power to confer state immunity, Continued on page 23

2 2 MAR - APR 2016 | HCBA LAWYER Continued from page 22 the understanding that the state and federal jurisdictions were as one, with a federally mandated exclusionary rule filling the space between the limits of state immunity statutes and the scope of the privilege.” United States v. Balsys, 524 U.S. 666, 683 (1998). Since fear of prosecution in the one jurisdiction implicated the very privilege binding upon the other, the Murphy opinion recognized that if a witness could not assert the privilege in such circumstances, the witness could be “whipsawed into incriminating CRIMINAL LAW AND TAX LAW himself under both state and federal law SECTIONS JOIN FORCES even though the constitutional privilege against self-incrimination is applicable to The criminal law and Tax law sections joined forces on december 8 to host each.” Id. at 682 (quoting Murphy, 378 U.S. a special cle luncheon. guest speakers kimberly lappin and rachelle desvaux at 55). bedke covered current topics in criminal tax enforcement, and Matthew Mueller While Murphy provides some comfort to those compelled to testify by state authorities, moderated. The sections appreciate those who came out, and they give a special it can only work if the underlying state grant thanks to findlaw for sponsoring the event. of immunity is sound. The mere issuance of a subpoena is immaterial because “compulsory attendance is one thing and compulsory testimony is another.” Tsavaris, 360 So. 2d at 750. Florida’s statutory immunity only arises if the defendant asserts his or her Fifth Amendment privilege and testimony or record production is compelled. Id. at 751. Also, immunity is only conferred to the judicial and investigative proceedings listed in the statute. Id. at 752. A pretrial discovery deposition where the assistant state attorney may be present and may even ask questions does not confer immunity. See State ex rel. D’Amato v. Morphonios, 358 So. 2d 1119, 1121 (Fla. 3d DCA 1978) approved sub nom. D’Amato v. Morphonios, 381 So. 2d 1355 (Fla. 1980). “Such depositions cannot be converted into ex parte state attorney investigative proceedings.” Id. If you have a concern about whether immunity would apply in your particular situation, the best practice may be to have the state move to compel the testimony because a court order will confer immunity.

Author: Matt Luka - Trombley & Hanes, P.A.

MAR - APR 2016 | HCBA LAWYER 2 3 diversiTy sTrikes a chord in all of us Diversity Committee Chairs: Jessica Costello - Office of the Attorney General; and Victoria Cruz-Garcia - Givens Givens Sparks

of bar regulars other hand, is commiserating a hard-working over lackluster real estate jobs, hidden broker with beneath this dreams of barroom sing- writing the along is a story great American about self- novel. Between reflection and his job and his diversity. novel-writing, Let’s start Paul never had our personal diversity with John. John time for love. ohn, the bartender. is a bartender sets us apart from Finally, the Paul, the real estate broker. who is at his everyone else and waitress, whose The unidentified waitress. wits’ end with name we do J his job. His motivates us to achieve not know, has What do all these people have in true ambition our personal goals. her sights set common? Well, besides all being is to become on politics. featured in Billy Joel’s “Piano a movie star, Although we Man,” they each aspire to fulfill a but he’s stuck don’t know personal dream. While some may bartending and view the song as a depressing tale can’t see a way out. Paul, on the Continued on page 25

2 4 MAR - APR 2016 | HCBA LAWYER diversiTy sTrikes a chord in all of us Diversity Committee

Continued from page 24 the HCBA Diversity Membership perhaps relishing the paycheck of Luncheon on January 19, “The his Big Law job, before realizing much about her, it’s safe to say she power of diversity is diversity of that several years had passed and put her political aspirations on thought.” In ignoring this, our he’s still dissatisfied? hold for a steady paycheck, settling personal goals are often blurred While there is no easy answer for the present without fighting for by those around us. We start to achieving personal success and her future. comparing ourselves to our friends happiness, we can all learn a Like John, Paul, and the rest and colleagues and seeking to lesson from “Piano Man” and of the “Piano Man” cast, we each achieve their versions of success, redefine success in terms of our have a unique story to tell. Our forgetting where we started and, personal goals. This requires us as personal diversity is not only what in turn, where we want to go. an industry to have a meaningful sets us apart from everyone else, For example, how many of us discussion about diversity‚ not but also what motivates us to know a colleague who resents her merely resorting to the default achieve our personal goals. career path because she followed and slapping on a label, but But because diversity is usually someone else’s plans instead of instead embracing invoked in the context of race, her own? Or how about the the diversity within gender, or sexual orientation, we colleagues we all know who us all. are quick to forget that diversity struggle to maintain a healthy exists in each of us through our work-life balance? Finally, what Author: differing ideas, personal about the colleague who spun Jessica Ronay - experiences, and objectives. As his wheels as a young associate United States general Ann Dunwoody said at waiting for his big break, or District Court

MAR - APR 2016 | HCBA LAWYER 2 5 ThoMas e. penick, Jr., elder laW inn of courT Elder Law Section Chairs: Debra Dandar - Tampa Bay Elder Law Center; and Susan Haubenstock - Law Office of Susan Haubenstock

Judge Herbert illustrating the Baumann of pros and cons the Thirteenth The penick inn provides of using Lady Circuit is the opportunity to Bird deeds. president of In addition socialize with judges, the Penick Inn to providing this year, and magistrates, and other the opportunity Judge Erika attorneys, and it also to socialize Quartermaine and earn CLE of the Twelfth offers the opportunity credits, the Circuit will to obtain cle. Penick Inn n 2014, a unique Inn of be next year’s provides Court was established. The president. opportunities Thomas E. Penick, Jr., Elder Like other to mentor or Law Inn of Court is the only Inns of Court, be mentored elder law Inn of Court in the the Penick Inn provides the by more senior attorneys. The IUnited States — and possibly the opportunity to socialize with judges, Penick Inn also engages in world. The Penick Inn welcomes magistrates, and other attorneys, community outreach projects attorneys and students practicing in and it also offers the opportunity and periodically meets with other areas that touch upon elder law to obtain CLE credit through Inns of Court, providing the issues, including Medicaid fun and educational programs opportunity for further networking planning; probate; guardianship; developed by each pupilage group. with attorneys and judges in other estate planning; veterans’ benefits; Pupilage groups are composed of areas of practice. and real property, probate, judges or magistrates, attorneys In Tampa, the Penick Inn of guardianship, and trust litigation. with various years of practice Court meets at the Chester Ferguson The Penick Inn is unique not (Masters, Barristers, and Law Center. If you would like only in its members’ practice areas, Associates), and pupils (students). further information about the but also in the fact that it is a multi- Examples of recent topics and Thomas E. Penick, Jr., Elder Law circuit Inn, composed of the Sixth, programs in the various circuit Inn of Court, feel free to contact Twelfth, and Thirteenth Circuits. meetings include a panel of judges Cady Huss, membership director Throughout the year, three multi- and magistrates sharing “horror for the Thirteenth Circuit, at circuit meetings are held, one in stories” from the bench; a game [email protected]. each circuit, and the remainder of show competition between the the meetings are held within each various circuits; and a male Authors: Susan G. Haubenstock - circuit’s own respective counties. appellate court judge dressed up Law Office of Susan G. Haubenstock; Currently, there are nearly 100 as a female client (including wig and Debra L. Dandar - Tampa Bay members between the three circuits. and high heels) for purposes of Elder Law Center

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Gallagher Keenan, P.A. Michael P. Maddux, P.A. William A. Knight, P.A. Galloway, Johnson, Tompkins, Burr and Smith Mike Murburg, P.A. Willis Law Firm, P.A. Gardner Brewer Martinez-Monfort, P.A. Morgenstern & Herd, P.A. Yanchuck, Berman, Wadley and Zervos, P.A. Gaylord Merlin Ludovici & Diaz Morris Law Firm Yanger Law Group, P.A. Genders-Alvarez-Diecidue, P.A. Nader Mediation Services Young Scanlan, LLC

TO BE ADDED TO THIS LIST, PLEASE EMAIL A LIST OF ATTORNEYS IN YOUR FIRM TO [email protected].

MAR - APR 2016 | HCBA LAWYER 2 7

2 8 MAR - APR 2016 | HCBA LAWYER MAR - APR 2016 | HCBA LAWYER 2 9 3 0 MAR - APR 2016 | HCBA LAWYER TRIAL & LITIgATION SECTION LUNCHEON

The Trial & litigation section hosted a special luncheon on december 7 featuring guest speaker lanny davis, who was president bill clinton’s chief spokesman and is currently a regular commentator and political and legal analyst for multiple Tv news programs. davis shared his stories about working on some of the biggest issues and crises of our time. he also discussed what individuals and companies should do to survive the inevitable crossfire after a crisis. The Trial & litigation section appreciates the support of the luncheon’s sponsor:

MAR - APR 2016 | HCBA LAWYER 3 1 3 2 MAR - APR 2016 | HCBA LAWYER MEDIATION

Helping You Get to Yes Insurance Coverage Disputes Errors & Omissions Claims Reach out to Woody Isom when you Property Claims need a mediator, arbitrator or special Business Interruption magistrate/master. Certified Circuit Civil Extra Expense and Federal Mediator since 1993, Board Health Disability Certified Civil Trial Lawyer with both Personal Injury insurance defense and plaintiff experience. Wrongful Death Auto/Motorcycle [email protected] Premises Liability www.IsomMediation.com Commercial Litigation Nursing Home (813) 629-6388 Medical Malpractice P.O. Box 320461, Product Liability Tampa, FL 33679-2461 Aviation

MAR - APR 2016 | HCBA LAWYER 3 3 Membership Luncheon Celebrates Diversity gen. ann dunwoody, the first female four-star general in the u.s. army, spoke to a group of about 400 attorneys, judges, and members of the military during the hcba’s diversity Membership luncheon on January 19. gen. dunwoody, who is now retired from the army, inspired the crowd with her message of setting high standards and developing leadership skills. also at the luncheon, the hillsborough county bar association recognized Michael hooker with the outstanding lawyer award for his devotion to the legal profession and the community. The young lawyers division recognized Melissa Mora with the outstanding young lawyer award, and the yld showed appreciation for Judge samantha Ward by giving her the robert patton outstanding Jurist award. The hcba would like to thank all the representatives of the various local bar associations who came out to support this event, and we’d like to extend a special thanks to those servicemen and women who honored us with their presence. Thank you to our luncheon sponsor:

Members of the bar leadership institute were treated to a tour of Moffitt cancer center on december 8 as part of the career enrichment program. The hcba would like to thank this year’s bli sponsor:

4 0 MAR - APR 2016 | HCBA LAWYER MAR - APR 2016 | HCBA LAWYER 4 1 The end of Meaningful use? Health Care Law Section Chairs: T.J. Ferrante - Foley & Lardner LLP; and Sara Younger Seifried - BayCare Health Systems

years since the required providers introduction seven years since of MU, and to attest to approximately the introduction of meeting $30 billion in Meaningful use, additional EHR incentive elements that, payments to and approximately on a shortened providers later,2 $30 billion in ehr timeline, CMS has proved to be announced that incentive payments challenging. the program will to providers later, This attestation 3 process carried n 2009, the Health end in 2016. cMs has announced Information Technology Although the with it a for Economic and Clinical seemingly abrupt that the program cognizable risk: Health (HITECH) Act, termination of will end in 2016. Those failing housed within the broader the Meaningful to meet the IAmerican Recovery and Use program has requirements Reinvestment Act (ARRA), raised numerous for Meaningful introduced the concept of questions, many of Use in 2015 Meaningful Use (MU), or “the the core elements of the program would see their Medicare Physician use of certified Electronic Health will be captured in other CMS Fee Schedule payments reduced by Record (EHR) technology in a programs, with even longer 1 percent in 2017. As complaints meaningful manner,”1 an effort acronyms, such as MIPS (Merit- grew, Congress, in a rare moment led by the Department of Health Based Incentive Program) under of bipartisan consensus, passed a and Human Services (HHS) MACRA (Medicare Access and law as part of the 2016 budget Centers for Medicare and CHIP Reauthorization Act). agreement that permitted CMS to Medicaid Services (CMS) and (That’s a four-acronym sentence, grant a hardship exemption from Office of the national not that you are counting.) the EHR requirement for certain Coordinator for Health IT (OnC). Critiques of the complex and entities that applied for such an (note: That is an introductory cumbersome metrics that providers exemption before March 15, 2016.4 sentence with, count them, seven were required to attest to under the CMS took further action acronyms.) Putting aside the EHR Incentive Program became though, albeit in a manner that few federal government’s love of more widespread as Meaningful expected. Instead of again delaying acronyms, the number “seven” Use moved beyond Stage 1 into carries significance here: Seven Stage 2 and Stage 3. Each stage Continued on page 43

4 2 MAR - APR 2016 | HCBA LAWYER The end of Meaningful use? Health Care Law Section

Continued from page 42 old) Medicare and Medicaid Medicare and Medicaid Payments programs. At the very least, CMS, by State: January 2011 to november certain requirements or modifying through the Meaningful Use 2015,” available at https:// specific elements of the program, program, created the framework www.cms.gov/Regulations-and- CMS elected to terminate the for the increased adoption of EHR guidance/Legislation/EHRIncentive program in its current format. systems by providers on a nationwide Programs/Downloads/november2015_ While critics of the program may scale. now, the agency says it will PaymentsbyStatebyProgram.pdf. tout this as a victory, it certainly transition to allowing physicians, 3 See Andy Slavitt, Acting does not represent a wholesale rather than the federal government, Administrator, Center for Medicare and abandonment of the goal of to take the lead in adopting Medicaid Services, Keynote Address at incentivizing the adoption of and implementing new EHR the J.P. Morgan Healthcare Conference EHR systems because MIPS is technologies as “MU” becomes (Jan. 13, 2016). intended to integrate many of “MIPS” and the focus is turned 4 See Patient Access and Medicare the same aims as MU. to a new program (and acronym!). Protection Act of 2015 The Meaningful Use program § 4, 42 U.S.C. certainly suffered through its fair 1 American Recovery and § 1395w-4(a)(7)(B) share of issues, but the program’s Reinvestment Act of 2009 (ARRA) (2015). adoption signaled that CMS is § 4101(a), 42 U.S.C. § 1395w-4(o)(2) seeking to invest substantial (A)(i) (2015). Author: Kevin resources in integrating technology 2 See Center for Medicare and Rudolph - Shriners into the (now more than 50-year- Medicaid Services, “Combined Hospitals for Children

JUDICIAL LUNCHEON WITH JUDgES FROM THE SECOND DCA

Judges from the second dca came over to the chester h. ferguson law center for a Judicial luncheon on January 13. guest speakers included chief Judge craig c. villanti, Judge John l. badalamenti, Judge edward c. larose, and Judge chris altenbernd. each shared his own pointers on how to win an appeal (or at least not lose it). Thanks to everyone who attended!

MAR - APR 2016 | HCBA LAWYER 4 3

4 4 MAR - APR 2016 | HCBA LAWYER THANKS TO ALL OUR FOX 13 ASK-A-LAWYER VOLUNTEERS!

attorneys from the lawyer referral & information service once again got up before dawn to start answering phones as part of fox 13’s ask-a-lawyer program. We appreciate all those who volunteered to take calls in december and January! n dale appell n stan Musial n Michael broadus n kemi oguntebi n Marc edelman n rinky parwani n brian esposito n susan renne n Jaclyn evilisor n larry samaha n James giardina n William p. schwarz n lynn hanshaw n Jim Thorpe n dane heptner n shaina Thorpe n Thomas newcomb hyde n guilene Theodore n klodiana hysenlika n chip Waller n brett Metcalf n robert Walton n denny Morgenstern n Martha irene Weed

MAR - APR 2016 | HCBA LAWYER 4 5 iMMigraTion reforM: Where are We Today? Immigration & Nationality Section Chair: Maria del Carmen Ramos - Shumaker, Loop & Kendrick, LLP

unconstitutional the decision to because it accept review will violated the have an impact Take Care on more than Clause of our immigration Article II, policy. section 3 of When the the U.S. government Constitution. petitioned the They also The supreme court’s Supreme Court, argued DAPA decision to hear the it presented three he Supreme Court is on was arbitrary questions for the verge of deciding an and capricious case is significant review: (1) immigration case that under the because it will have whether the states could not only have a Administrative had standing a major impact on our profound effect on our immigration Procedures Act to challenge the policyT but on the limits of a (APA) and not immigration policy. executive action; president’s powers, as well. As properly (2) whether DAPA background, last november, promulgated was arbitrary and President Obama issued a series of under the APA’s capricious under executive actions on immigration, notice-and- the APA; and which, among other things, comment procedures. The district (3) whether DAPA was subject expanded eligibility for “deferred court entered a nationwide to the APA’s notice-and-comments action.” “Deferred action” is a preliminary injunction enjoining procedures. The court granted regular practice in which the DHS from implementing the review on all three questions but, Secretary of Homeland Security DAPA program on the notice-and- in an unusual move, added a fourth exercises his or her discretion to comment procedures grounds. question: Whether DAPA violates refrain from removing particular On november 9, 2015, the Fifth the Take Care Clause of Article II, aliens from the United States Circuit Court of Appeals affirmed section 3 of the Constitution. for humanitarian reasons or the district court.1 The government The Take Care Clause obligates convenience. Aliens who have been had sought a stay of the injunction the president to “take Care that accorded deferred action status are pending appeal, which, had it been the Laws be faithfully executed.” eligible to receive work authorization granted, would have meant DHS It is likely, according to court and federal benefits. As part of his could have implemented DAPA observers, that the Supreme Court executive actions, President Obama while the appeal was pending. But will hear oral argument in the case directed that the Department of the Fifth Circuit declined to stay sometime in April and rule before Homeland Security (DHS) grant the injunction.2 given that, the the current term concludes in June. deferred action status to — i.e., government sought expedited Keep an eye out for what could be not deport — the parents of U.S. review by the Supreme Court, a bombshell decision. citizens and lawful permanent and on January 19, the Supreme residents. That executive action Court agreed to hear the case.3 1 Texas v. United States, 809 F.3d program is known as Deferred The Supreme Court’s decision to 134, 187 (5th Cir. nov. 9, 2015). Action for Parents (DAPA). hear the case is significant because 2 Texas v. United States, 787 F.3d Two weeks after President it will have a major impact on 733, 768-69 (5th Cir. 2015). Obama announced his executive our immigration policy. With the 3 United States of America v. Texas, actions, 26 states sued the federal injunction in place, an estimated Case no. 15-674. government in federal court in 4 million parents of U.S. citizens Texas to enjoin DHS from or permanent legal residents are implementing the DAPA program. subject to deportation and ineligible Author: Maria del Carmen Ramos – Those states alleged that DAPA was to work in the United States. But Shumaker, Loop & Kendrick LLP

4 6 MAR - APR 2016 | HCBA LAWYER supreMe courT Takes TWo ip cases Intellectual Property Section Chairs: Jeff Fabian - Shumaker, Loop & Kendrick, LLP; and Kathy Wade - Fee Jeffries

even review the Inc. v. Kirtsaeng, creation of the 2013 WL IPR procedure. 6722887, at *2 (S.D.n.Y. Copyright Fees: Dec. 20, 2013). Kirtsaeng v. The Second John Wiley & Circuit, while Sons, Inc., disagreeing No. 15-374 with some of (cert. granted the district Jan. 15, 2016). court’s analysis, he United States If the name PHOTO COURTESY OF MICHAEL ALEx WASYLIK affirmed, finding Supreme Court in of this case no abuse of January granted sounds familiar, The petition describes discretion. certiorari review of that’s because the ipr process as “both John Wiley & two important intellectual property it is Kirtsaeng’s Sons, Inc. v. cases:T One to determine the second trip to the unexpectedly popular Kirtsaeng, 605 F. appealability of the decision to Supreme Court. and surprisingly lethal,” App’x 48, 49-50 create the Inter Partes Review (IPR) Kirstaeng, an (2d Cir. 2015). with 85 percent of the procedure and the proper standard enterprising Kirtsaeng’s for patent claim construction in foreign student, patents challenged in petition noted IPR proceedings, and another to purchased an ipr being cancelled. a split in the way re-examine the proper standard for textbooks abroad the circuits apply awarding attorney’s fees in and re-sold them the section 505 copyright cases. to classmates in prevailing party the United States, standard, with Patent IPR Procedures: Cuozzo and a textbook publisher sued him the ninth and Eleventh Circuits Speed Technologies, LLC v. Lee, for copyright infringement. In granting fees when a defense Case No. 15-446 (cert. granted 2013, the Supreme Court held that advanced the purposes of the Jan. 15, 2016). the first sale doctrine applied to Copyright Act; the Fifth and Seventh In Cuozzo, a divided panel of the copies of works lawfully made Circuits employing a presumption Federal Circuit affirmed the Patent outside of the United States and of fees; and the remaining circuits Trial and Appeal Board’s procedure later brought here for re-sale. The placing substantial weight on of applying a “broadest reasonable court therefore reversed the jury’s whether the other party is interpretation” standard to claim finding that Kirtsaeng was liable for “objectively unreasonable.” The construction in IPR proceedings, willful infringement. Kirtsaeng v. Supreme Court granted certiorari rather than the “plain and ordinary John Wiley & Sons, Inc., 133 S. Ct. on the question: “What is the meaning” standard applied in district 1351 (2013). appropriate standard for awarding courts. The petition describes the On remand, Kirtsaeng, as the attorney’s fees to a prevailing party IPR process as “both unexpectedly now-prevailing party, sought under § 505 of the Copyright Act?” popular and surprisingly lethal,” attorney’s fees pursuant to 17 U.S.C. Both cases are scheduled to have with 85 percent of the patents § 505. (“The court may also award briefing concluded in late April, challenged in an IPR being a reasonable attorney’s fee to the so we’ll have the cancelled. Stakeholders from every prevailing party as part of the court’s decisions side participated in the petition costs.”) The district court refused to by summer. process, with the pharmaceutical award attorney’s fees, stating that industry, the biotech industry, 3M, the plaintiff ’s litigation position, Author: and several IP industry groups while ultimately rejected by the Dineen Pashoukos appearing as amici. The court is also Supreme Court, was not “objectively Wasylik – asked to determine whether it can unreasonable.” John Wiley & Sons, DPW Legal

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4 8 MAR - APR 2016 | HCBA LAWYER laW Week 2016 celebraTes hisToric Miranda decision Law Week Committee Chairs: Amy Nath - Shriners Hospitals for Children; Alexandra Haddad Palermo – Burr & Forman; and Maja Lacevic – Trenam Law

t was 50 years ago this procedural June that the United States safeguard, Supreme Court decided these words as a procedural safeguard, the words a case that has arguably help secure permeated popular culture more the privilege of the Miranda Warning help secure Ithan any that came before it or against self- the privilege against self-incrimination. that have come since. Miranda v. incrimination. Arizona engendered the famous The 2016 Miranda Warning, which has been Law Week recited countless times in films Theme, and television. The power and “Miranda: More Than Words,” questions. Finally, volunteers who importance of the Miranda celebrates the historic Miranda participate in mock trials team Warning goes far beyond plot decision by exploring the up and travel to a local school to development, though. procedural protections afforded work with students in presenting an Miranda addressed four by the United States Constitution, elementary student-friendly case. separate cases involving custodial how these rights are safeguarded Participating schools are located interrogations. In each of the cases, by the courts, and why the throughout the county, and the defendant was questioned by preservation of these principles volunteer attorneys and judges authorities in a room in which he is essential to our liberty. are welcome to participate in any was cut off from the outside world. Here in Hillsborough County, (or all!) of the three activities. none of the defendants were given Law Week will take place May Please mark your calendars to a full and effective warning of 23-27. Once again, this event participate in Law Week 2016. their rights at the outset of the will provide attorneys and judges Join your colleagues, and address interrogation process. In all the across the Tampa Bay area the basic legal principles with cases, the questioning elicited oral opportunity to reach out to Hillsborough County students in a admissions and, in three of them, Hillsborough County students fun and accessible way! If you are signed statements that were through three different activities: interested in learning more about admitted at trial. courthouse tours, classroom Law Week 2016 or volunteering as The words of the Miranda discussions, and mock trials. a courthouse tour guide, classroom Warning themselves advise a The courthouse tour activity speaker, or mock trial participant, defendant prior to questioning that involves leading groups of please contact HCBA Young he has the right to remain silent; students through the george E. Lawyers Division Law Week that anything he says can be used Edgecomb Courthouse to give Committee Co-Chairs Dane against him in a court of law; that them a glimpse of our judicial Heptner ([email protected]) he has the right to the presence of system in action. Classroom or Clinton Morrell (cmorrell an attorney; and that if he cannot discussions involve traveling to @slk-law.com). afford an attorney, one will be a local school to lead a class or appointed for him prior to any group of students in a discussion Author: Amy Nath - Shriners questioning, if he so desires. As a on the law and answer student Hospitals for Children

MAR - APR 2016 | HCBA LAWYER 4 9 prenupTial agreeMenTs Marital & Family Law Section Chair: Seth Nelson - Seth Nelson, P.A.

Second and marriage due Third District to the parties’ Courts of marital efforts Appeal or appreciated previously held in value during that a spouse the marriage did not waive due to the the right to parties’ marital receive the efforts? enhanced value Shortly of nonmarital thereafter, in prenuptial agreement property that broadly drafted waivers Felice v. Felice, is the last thing a resulted can effectively prevent 2015 WL couple want to from active 9487576, at *3 discuss before their appreciation a spouse from receiving (Fla. 2d DCA impending marriage. nothing saps when the any future interest in Dec. 30, 2015), theA excitement from an engagement prenuptial the Second nonmarital property. more than discussing how assets agreement DCA and liabilities will be treated if the was silent on recognized that upcoming marriage ends in divorce. the issue of Irwin was no However, this conversation should enhancement longer good take place if a client expresses an or appreciation. See Valdes v. Valdes, law and interpreted a broadly interest in protecting nonmarital 894 So. 2d 264, 267 (Fla. 3d DCA drafted prenuptial waiver to restrict assets or earnings in a future 2004); Irwin v. Irwin, 857 So. 2d a spouse’s claim to the enhanced dissolution action. 247, 248 (Fla. 2d DCA 2003). value of a marital home purchased One of the most important and However, in Hahamovitch v. before the marriage. In both sensitive issues in any prenuptial Hahamovitch, 174 So. 3d 983 (Fla. Hahamovitch and Felice, the discussion is the treatment of assets 2015), the Florida Supreme Court nonmarital properties increased upon dissolution. Typically, the rejected Valdez and Irwin when in value due to the expenditure future spouse with the greater it decided the following certified of marital funds. financial position will request a question in the affirmative: Accordingly, when drafting or provision that limits or eliminates Where a prenuptial agreement interpreting prenuptial agreements, the creation of marital property. provides that neither spouse will it is important to be aware of this This type of provision may allow ever claim any interest in the shift in the law in order to properly the spouse who purchased the other’s property, states that each advise clients that broadly drafted property to retain it, as a spouse shall be the sole owner of waivers can effectively prevent a nonmarital asset, after a divorce. property purchased or acquired spouse from receiving any future Historically, this “what’s mine is in his or her name, and contains interest in nonmarital property mine and what’s ours is mine” language purporting to waive even when marital funds or labor strategy was effective but not and release all rights and claims were used to foolproof because some courts that a spouse may be entitled to increase the value interpreted broadly drafted as a result of the marriage, do of that property. prenuptial waivers to exclude the such provisions serve to waive enhanced value of nonmarital a spouse’s right to any share property caused by the expenditure of assets titled in the other’s Author: Martin of marital funds or labor (active spouse’s name, even if those Deptula - Harris appreciation). Specifically, the assets were acquired during the & Hunt, P.A.

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MAR - APR 2016 | HCBA LAWYER 5 1 MediaTion resources for laWyers Mediation & Arbitration Section Chairs: Benjamin S. Jilek - Bush Ross, P.A.; and Amy Mahan Tamargo - Tamargo Mediation, PLLC

Supreme Court’s The local foundational rule generally This article is rules regulating incorporates the mediators. They designed to identify Florida rules, the are the source the most important MEAC Opinions, of mediator and Chapter 44, certification parameters Florida Statutes. and renewal of mediation. But there are requirements. some differences. The rules also set For example, a forth the Standards party may waive ediation is a of Professional a mediator’s process every Conduct for mediators. They actual or potential conflict of Florida lawyer provide the mechanism for interest. Also, the Bankruptcy Court encounters and discipline and define the mission imposes a “good faith” requirement, one some lawyers participate in on of the Mediator Ethics Advisory which is not part of the Florida Ma regular basis. It is an event that Committee (MEAC) to interpret Rules or Chapter 44, Florida. requires each participating litigator these rules. The Mortgage Modification to know their client(s), the law, the MEAC Opinions are the most Mediation procedures are set forth courts, the facts, and their mediator. directly applicable standards. The on the court’s website including These elements are absolutely MEAC was formed by Florida’s administrative orders, sample necessary to get the best results. Supreme Court in 1994. Its formal motions, orders, and forms. It is also very helpful to know the ethics opinions primarily answer Mediators must be a Florida defining sources of the process. questions from mediators and Supreme Court Circuit Mediator This article is designed to identify involve interpretations of Florida’s and have completed eight hours the most important parameters mediator rules. However, the of training focused on modifying of mediation. The authors would opinions address the roles and residential mortgages in bankruptcy. encourage you to save this article violations of all participants. and to pass it on physically or They can be found at: http:// U.S. District Courts - electronically to your team www.flcourts.org/resources-and- Middle District: members for future reference. services/alternative-dispute- The mediation process is Another resource worth saving resolution/meac-opinions.stml. governed by Chapter nine, is Myths and Urban Legends, The Court Annexed Mediation of Florida Bar Journal, May 2008, U.S. Bankruptcy Courts - the Rules of the District Court. at 52. Middle District: See www.flmd.uscourts.gov. Chapter 44, Florida Statutes, Bankruptcy courts have two The federal district courts differ is the ‘constitution’ for Florida separate forms of mediation: in their approach Mediation. It is the source for Mortgage Modification Mediation to mediation. mediation standards and procedures, and Alternative Dispute Resolution Review the confidentiality, and privileges. It is (ADR) Mediation. generally, particular court’s one of the standards interpreted administrative orders and local requirements by the Florida Supreme Court’s rules govern mediation. not all before embarking Mediator Ethics Advisory bankruptcy courts have the same on the mediation Committee (MEAC) Opinions. rules, and it is imperative that one process. http://www.flcourts.org/core/ review the information specifically fileparse.php/550/urlt/Rule related to the court the mediation Authors: Clark BookletJanuary2015.pdf. is to take place in. Jordan-Holmes and Florida’s Rules for Certified See www.flmb.uscourts.gov. Constance d’Angelis and Court-Appointed The Local Rule is 9019-2 (M.D. - Mediation Mediators are the Florida Fla. L.B.R. 9019-2). for Florida

5 2 MAR - APR 2016 | HCBA LAWYER ucMJ: for yesTerday, Today, and ToMorroW Military & Veterans Affairs Committee Chairs: Matthew F. Hall - Hill Ward Henderson; and Colleen O’Brien, Thirteenth Judicial Circuit

proper ire of many. constitutional Specifically, what role. Pick up a are “disorders modern Manual and neglects to of Courts Martial the prejudice of and you will find good order and the UCMJ itself, discipline in the the Rules of armed forces”? Court Martial What is “conduct (the armed Watching old “war of a nature to services’ “Federal bring discredit he Uniform Code Rules of Criminal movies” is not a very upon the armed of Military Justice Procedure”), and good instructional tool. forces”? To steal (UCMJ), don’t ya the Military Rules a phrase we all know, has become of Evidence. “be careful out there!” know, “I may not a punching bag for the far left Political and know what it is, andT the far right in this country philosophical but I know it for all of the wrong reasons. differences when I see it.” To most of the members of this abound over UCMJ statutory and That may be the most rational association, it is a strange and personal jurisdiction, non-judicial answer to the clamor, at least for difficult procedural quagmire punishment, pre- and post-trial today and tomorrow. that thankfully needs little procedure, the punitive articles, On a personal note, having been attention. To a few, it is law that and the ever-challenged Article 134 subject to the 1951 articles and we touched and were touched by (the “general article”). In many having been the presiding officer during and after military service. ways, however, the UCMJ has been at numerous Summary Courts- To very, very few, it is an active ahead of civilian criminal justice Martial under that legislation, and demanding practice area. system developments in other I am reminded continuously of the The roots of the UCMJ, federal courts. The rights warnings advice given by a law professor who originally called the Articles of in military cases preceded Miranda was a law officer under the 1920 War, rest in the need expressed v. Arizona by nearly a decade and legislation: “Be careful out there!” by general george Washington in a half. Additionally, the right to As this issue of the Lawyer goes 1776. The Continental Congress counsel was afforded to all military to press, our profession and the responded, and the first Articles defendants years before Gideon v. nation as a whole will see the UCMJ of War guided the management Wainwright provided representation discussed on the evening newscasts of the Army and navy through only to indigent litigants. and on radio talk shows, as well as the American Revolution. Under Further, watching older “war printed on or near front pages of the Constitution, the Congress movies” featuring court martial the nation’s newspapers. Sergeant asserted its influence over the scenes is not a very informative Bowe Bergdahl will face a court armed forces with revisions instruction tool. The older “law martial under this statute. We will thought necessary as war and member” is now the military judge; be initially fascinated, then bored, the threat of war arose over the the board of officers are the jury. and finally, depending on our last 240 years. Proceedings under the current philosophical inclinations, either The development of today’s Manual for Courts-Martial are a delighted or UCMJ is, again to the very few, formidable amalgam of executive, outraged. “Be instructive and fascinating. Major legislative, and judicial handiwork. careful out there!” legislative changes were enacted Even the clamor over Article 134 in 1806, 1863, 1920, 1951, 1969, seems stale and dated. Article 134, Author: and 2006. Throughout the UCMJ’s authorizing the prosecution of Harold (Hal) W. history, both the executive and offenses not specifically detailed by Youmans - Colonel, the judicial branches asserted their any other article, seems to raise the USA, Retired

MAR - APR 2016 | HCBA LAWYER 5 3 5 4 MAR - APR 2016 | HCBA LAWYER Want to advertise your business to thousands ofattorneys in the Tampa Bay area?

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MAR - APR 2016 | HCBA LAWYER 5 5 Third-parTy purchaser righTs in coMMuniTy associaTion laW Real Property, Probate & Trust Law Section Chairs: Mike Kangas - Philip A. Baumann, P.A.; Kristin Morris - Shutts & Bowen

more rights (and 627, 628 (3d less assessment application of pudlit DCA 1977). liability) to is contingent on Since the subsequent holding in Pudlit, purchasers or particular facts lawyers for mortgagees than and dependent on community current statutes, associations, those restrictions, the specific language lenders, and based on the of an association’s property owners governing have argued over governing documents. documents, will the nuances and n May 2015, the Fourth control over expansion of District Court of Appeals current statutory its application, issued an opinion in Pudlit 2 obligations. While especially in Joint Venture, LLP v. Pudlit may affect considering when Westwood Gardens Homeowners an association’s ability to hold and if governing documents provide IAssociation, Inc., 169 So. 3d 145 third-party purchasers jointly and for incorporation of changes in law (Fla. 4th DCA 2015), that has severally liable with former owners or identify the controlling authority become a prevalent topic of for all past-due assessments, as when a conflict arises between discussion among community provided in sections 720.3085 Florida law and the governing association lawyers and has and 718.116, Florida Statutes, documents. During these significantly impacted the collection careful review of the association’s discussions, it has become evident practices for homeowners and governing documents is required that the application of Pudlit is condominium associations. Pudlit to determine the applicability of contingent on particular facts and expanded the holding in Coral Pudlit in a given case. dependent on the specific language Lakes Community Association v. Based upon Pudlit, associations of an association’s governing Busey Bank, N.A., 30 So. 3d 579 may be limited to collecting past- documents. While Pudlit expanded (2d DCA 2010) to third-party due assessments depending on the the holding in Coral Lakes, the purchasers based upon constitutional existing language found in their decision has caused varying prohibitions against the impairment governing documents, as opposed positions to be advanced by of contracts. In Coral Lakes, the to the statutory liability found in community associations, lenders, court held that statutes cannot section 720.3085 or section 718.116. and property owners who all impair or supersede a preexisting Associations may, however, avoid continue to battle over the rights of declaration provision. “To hold contractual limitations in their third-party purchasers who take title otherwise would implicate governing documents by including to real property constitutional concerns about certain provisions that incorporate that is part of impairment of vested contractual changes in law. Specifically, text a community rights.” Id. at 584. The declaration may be added to governing association. for a community association is a documents to provide for the contractual right, as a matter of incorporation of statutory changes Author: Tiffany law. As a result, if the language in in pre-existing governing documents. Love McElheran – an association’s declaration provides See Kaufman v. Shere, 347 So. 2d Bush Ross, P.A.

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5 6 MAR - APR 2016 | HCBA LAWYER RPPTL SECTION LUNCHEON

The Real Property, Probate & Trust Law Section hosted a luncheon on January 14 to learn about all the new applications for 3D printing. The section would like to thank Todd Jones for presenting and The Bank of Tampa for sponsoring.

FLORIDA BAR HOSTS VIRTUAL CAREER FAIR

The Florida Bar Practice Resource Institute, in partnership with YourMembership, will host a virtual career fair on March 31 from noon to 3 p.m. The event will allow legal professionals to network with multiple employers from the comfort of their homes or offices, all within one afternoon. Professionals looking for career opportunities will be able to chat online with top employers looking to hire lawyers in different specialties. “The Florida Bar Virtual Career Fair is a very dynamic and proactive way to introduce candidates with strong skill sets directly to potential employers who are looking to fill open positions,” said Jonathon Israel, director of The Florida Bar Practice Resource Institute. “By using an online platform, The Florida Bar Virtual Career Fair makes it very easy for hiring companies and job seekers to connect from anywhere.” The virtual platform makes it easy to register, upload a resume, and learn about participating employers before the event. On the day of the event, participants can log in from anywhere and interact one-on-one with employers through online interviews. After the event, participants can log in to facilitate follow-ups. To register, go to: http://l.fl.bar.associationcareernetwork.com.

MAR - APR 2016 | HCBA LAWYER 5 7 social Media and MarkeT ManipulaTion Securities Law Section Chairs: Dominique Heller - Wiand Guerra King; and Daniel P. Dietrich - Burr & Forman

promote penny the stocks stocks he owned through his and then selling girlfriend’s them. The digital account, and pump-and-dump created Twitter had arrived. Fast handles and forward to 2011, logos that falsely when Jackson suggested an tweeted about affiliation with a penny stock market research that he owned, companies. The et rich or die trying. causing the price critical fact of That’s the motto to skyrocket from any securities (and album title) of one cent to — you fraud is hip-hop star 50 Cent, cannot make this The intersection deception: the aka Curtis Jackson. Jackson’s words up — nearly fifty of celebrity and misrepresentation gmay seem out of place in discussing cents — in two or omission of securities law, but welcome to the days. Rumors securities is no longer a material fact. 21st century. The intersection of of an SEC and limited to Martha The allegations, celebrity and securities is no longer even criminal if true, support limited to Martha Stewart or investigation stewart or infamous that Craig infamous financiers like Michael surfaced, but financiers like Michael knowingly Milken, Bernie Madoff, or Allen apparently Jackson manipulated Stanford. Over the past several never sold the Milken, bernie Madoff, the stock value, years, retired nBA star Shaquille stock, which likely or allen stanford. which would be O’neal, actress/model Carmen kept him out of sufficient to Electra, and Jackson have all spent trouble. (Whether establish civil time promoting stocks. And while one can tout a liability under admired celebrities have been security while § 10b-5 as well hawking products since there have complying with the disclosure as a criminal violation. In other been celebrities to admire and requirements of § 17(b) of the 1934 circumstances, however, the facts products to hawk, public figures SEC Act in fewer than 140 characters may not be so supportive. For promoting stocks through social is a question for another day.) example, even a C-list celebrity media is a relatively recent Authorities have charged like Carmen Electra has enough phenomenon. Coupled with the individuals for market manipulation of a social media following that Jim Kramer, StockTwits, everybody- cases through digital media. This she does not need to disguise can-be-a-savvy-investor culture in past november, the SEC and DOJ, herself as a market analyst like which we live — voila! — we find respectively, brought a complaint Craig allegedly did in order to ourselves entering the everybody- and indictment against James affect a stock price. Furthermore, can-be-a-financial-victim era. Craig, a Scotland-based promoter, celebrities’ endorsement deals with Last november, the SEC issued for tweeting about equities using and ownership of a company are a bulletin warning investors about Twitter accounts that he often in the public domain. Thus, fraudsters who may attempt to deceptively created to look like a celebrity accused of manipulating manipulate stock prices through established market research a stock may have a built-in defense social media. This story begins, company accounts. In one day that there was no deception because however, earlier. Way back in the following Craig’s tweets, the stocks all relevant information was dial-up AOL days of 1999, 15-year- dropped 28 and 16 percent. publicly available. Consequently, old Jonathan Lebed made headlines Craig’s case appears there is a vast gray area of market (and tens of thousands of dollars) straightforward: He allegedly by using Internet chat rooms to exploited the price drops by trading Continued on page 59

5 8 MAR - APR 2016 | HCBA LAWYER Continued from page 58 manipulation through social media in which it is difficult to determine — much less prove — fraudulent conduct. That is why the SEC’s november bulletin warns investors to exercise extreme caution in using information gleaned from social media about a security where the investor does not personally know the information source. Although the SEC and DOJ will continue to prosecute the more egregious violations of social medial market manipulation, investors need to be more discerning in following investment advice from professional athletes, models, or hip-hop artists.

Author: Andrew Warren

HCBA WELCOMES NEW MEMBERS

DECEMBER AND JANUARY

Bryce Holloway Alley Melissa Giasi Zachary W. Lombardo Chelsea Simms Alper Jeffrey Gionet Laura R. Mauldin Linda Anderson Paul Ryan Godfrey Michael Andrew McCulloch Howard Anderson Evelyn Golden Tatiana Melnik Chance Arias Alma Gonzalez Marsha Moses Martha E. Aristizabal Sarah Gottlieb Richard Mulholland Sam Badawi Kelly Green Nancy Neaves Debbie Baker Elizabeth Chantal Greene Laurie Ohall Leland Toman Baldwin Mary Greenwood-McDermott Lauren Osa Cordel Batchelor Nathaniel Griffin Lauren Pulido Chelsea Bellew Jeffrey Groover Abbey Ray Elizabeth Blanco Henry Gyden Eric Reuter David Bolen Mercedes Gonzalez Hale Christopher Michael Reynolds Alan D. Borden Jonathan Hart Jennifer A. Roberts Andrew Brown Lawrence Hodz Eric Rogers Daniel Buchholz Ryan Thomas Hopper Brooks A. Saible Wendolyn Busch Lauren Virginia Humphries Aloyma M. Sanchez Valerie Cisco Amber Leigh Inman Sean Saval Arielle Claude Dennis Jones Todd P. Scholl Francisca Diaz Chante’ Jones Andre Sesler Sunai Joy Edwards Adrienne C. Kendall James G. Souza Howard H. Ellzey Robert Andrew Kent Kymberly Starr Nicole Engebretsen David Knox Andy Steingold Christine N. Failey Jennifer M. Komarek Angela Tormey David C. Fall Amber Kourofsky Hardam Tripathi Cary Garcia Jennifer Lada Jason Watson John Paul Getting Domenick Giovanni Lazzara Warren Zimmerman

MAR - APR 2016 | HCBA LAWYER 5 9 enJoy hard Work Solo & Small Firm Section Chair: Amanda M. Uliano - Law Office of Amanda M. Uliano, P.A.

area of the brain fight off disease. that is associated A study at with happiness — Harvard the mesolimbic University pathway. This showed an in turn releases increase in dopamine, a the production neurotransmitter of protective that regulates the antibodies, brain’s centers compared with for reward and a control group aving now passed pleasure. of individuals the season of annual Actual face- who merely limited generosity, to-face helping watched a we have a year of also triggers film about the what many consider to be hard areas in the brain work of Mother Hwork ahead of us. The most associated with Teresa in India. recent period that passed excited happiness. A Ralph Waldo everyone with the concept of study of adults in Emerson wrote: philanthropy and donating money the United States “it is one of the beautiful “It is one of or time to individuals, institutions, who volunteered the beautiful and other societal positive their time to help compensations of life compensations purposes. The emphasis of that others reports that no man can of life that season focuses on how we can increased no man can help others and, for a very brief happiness in sincerely help another sincerely period of time, change the general 96 percent of without helping himself.” help another attitude of most of the world. these volunteers — ralph Waldo emerson without helping What is overlooked is the compared with himself.” A significant non-economic benefit their non-helping growing body to the giver as well. counterparts. of scientific According to a Stanford The study also evidence University study, frequent found: indicates that the giving of one’s volunteering is associated with • An improved sense of time makes the world a better delayed mortality. A different study well-being (89 percent) place for both giver and recipient. measured the mental health of • Lower stress levels (73 percent) We can all enjoy the hard older individuals in assisted-living • Better physical health work ahead in the new Year and facilities who were engaged in (68 percent) contribute to our enjoying good helping activities. These individuals • Enhanced emotional health health and happiness to the fullest enjoyed better mental health, (77 percent) in the new Year through our pro including positive attitudes toward • Enriched sense of purpose bono efforts. aging, improvements and feelings (92 percent) of control and life satisfaction, In addition, the act of giving *Note: Statistical information decreased depression, and a sense helps people fight depression, from Bruce Debosky, of connectedness. They also according to a study conducted Tribune News Service enjoyed a lower rate of mortality. in great Britain. “giving to Brain scans show that people are neighbors and communities” was made happier by simply thinking cited as one of the top five factors Author: about making a donation or helping associated with lower rates of Raymond A. others. This happens because depression. Even mere thoughts Haas Jr. - HD thoughts of helping activate the of philanthropy help people Law Partners

6 0 MAR - APR 2016 | HCBA LAWYER Tax aTTorney privileges: confidenTialiTy and coMpleTeness Tax Law Section Chairs: Justin Klatsky - Owens Law Group, P.A.; and Brian Harris - Akerman

and an 501 grants attorney common law shall also privileges apply to a unless the communication Constitution, between a federal statute, taxpayer and or Supreme any federally Court Rule authorized tax provides practitioner to otherwise. the extent the State law ection 10.3 of Treasury communication privileges Department Circular would be only apply no. 230 outlines who may considered a only a tax attorney when state practice before for the privileged can communicate all law supplies Internal Revenue Service. Those communication the rule of of the options legally Swho may practice include attorneys, if it were decision, but certified public accountants (CPA), between a available to a client. federal tax and enrolled agents (EA). naturally, taxpayer and cases are this creates competition among an attorney.” generally these professionals for clients. In layman governed by For those unfamiliar with the terms, the federal law EA credential, the IRS website common law attorney-client and not state law, thereby limiting states: “An enrolled agent is a privilege has been extended to the application of the state person who has earned the those “authorized under Federal accountant-client privilege. privilege of representing taxpayers law to practice before the Internal before the Internal Revenue Revenue Service.” I.R.C. Complete Counsel Service. … Enrolled agents, like § 7525(a)(3)(A). note, however, In addition to having stronger attorneys and certified public the privilege only applies to protection for privileged accountants, have unlimited “noncriminal tax matters” before communications, the tax attorney practice rights. This means they the IRS and in federal court. is able to provide “complete are unrestricted as to which I.R.C. §§ 7525(a)(2)(A), (a)(2)(B). counsel” to a client. Only a tax taxpayers they can represent, Suppose your client tells you that attorney can communicate all of what types of tax matters they he regularly structures deposits to the options legally available to a can handle, and which IRS offices avoid currency transaction reports. client. For example, in the area of they can represent clients before.” Or suppose you are informed of tax controversy, this may include There are, however, significant questionable intercompany transfer advising a client on whether the differences in the privileges that pricing practices. In any criminal facts support bankruptcy. neither apply to communications with matter, the client’s communications a CPA nor EA may give true legal an attorney as compared to an with an enrolled agent or CPA advice. A tax attorney is able to enrolled agent or a CPA. about these issues would not be represent a client in an audit and protected from disclosure. The appeals, as well as litigation in Client Confidentiality same communications with an the Tax Court, I.R.C. § 7525 addresses attorney would be protected. if necessary. “confidentiality privileges relating Florida law also provides to taxpayer communications.” It an accountant-client privilege. states: “With respect to tax advice, § 90.5055, Fla. Stat. The Author: the same common law protections application of this privilege to Nehemiah Jefferson of confidentiality which apply to a federal tax matters is likewise – The Jefferson communication between a taxpayer limited. Federal Rule of Evidence Firm, LLC

MAR - APR 2016 | HCBA LAWYER 6 1 naTional pro bono Week: celebraTing pro bono froM Top To boTToM Thirteenth Judicial Circuit’s Pro Bono Committee Chair Rosemary Armstrong, Crossroads for Florida Kids, Inc.

Practitioners Bar associations in the Thirteenth and sections of Judicial Circuit the Bar hosted and Hillsborough events to help County joined members of the national the community. celebration Service with activities providers, such spearheaded as Bay Area by virtually all Legal Services, segments of Crossroads for nce each year, the the local legal Florida Kids American Bar community. Inc., and Are Association (ABA) Activities ranged You Safe Inc., designates a week to from judges With the multitude hosted activities celebrate pro bono legal service. participating in a to help the of events comes OIt is a week when legal communities pro bono summit community, across the nation strive to not only to a law school much opportunity — train pro bono help those who cannot afford and young lawyers opportunity to get attorneys, and much-needed legal assistance, but hosting pro bono raise money also to bring awareness to the need fairs to bring involved, opportunity to support pro for such services and to recognize together service to help those who bono efforts. the great efforts of its members. providers with In fact, so many The most recent national Pro those interested in desperately need help. Bono Celebration took place donating their time Continued on during October 25-31, 2015. and talents. Local page 63

6 2 MAR - APR 2016 | HCBA LAWYER Continued from page 62 activities occurred that they were spread out The Honorable over a much greater time period than the official Catherine national celebratory week. Peek McEwen Even those not directly involved in providing pro bono service joined in the celebration. For example, the James J. Lunsford Law Library co-hosted a “Coffee at the Courthouse” event with Bay Area Legal Services. The event recognized volunteer attorneys for their pro bono service and provided them with free coffee and breakfast pastries as a “thank you” for their efforts. The Hillsborough County Isabel “Cissy” Board of County Commissioners also joined Boza Sevelin in the celebration by issuing a proclamation at its October 21 public meeting, in which Commissioner Kevin Beckner presented representatives of the Thirteenth Judicial Circuit’s Pro Bono Committee with a proclamation declaring the week of October 25, 2015, to be Pro Bono Week in Hillsborough FLORIDA BAR County. The Honorable Ronald Ficarrotta, PRO BONO AWARDS chief judge of the Thirteenth Judicial Circuit, in a special ceremony on January 28 at the florida also spoke about the importance of pro bono service at the public meeting. supreme court, two local legal professionals were recognized With so many important pro bono events for their commitment to pro bono service. taking place, it is difficult to discuss each one The honorable catherine peek Mcewen of the u.s. in detail or to select one to showcase. However, bankruptcy court, Middle district of florida, Tampa, was the with the multitude of events comes much first recipient of the chief Justice’s distinguished federal opportunity — opportunity to get involved, opportunity to help those who desperately need Judicial service award. The new award, which recognizes an help, opportunity to make a difference in the active or retired federal judge for outstanding and sustained community, opportunity to improve access to service to the public, especially as it relates to the support justice, opportunity to gain experience in a new of pro bono legal services, was presented by chief Justice area of law, opportunity to develop or enhance Jorge labarga. legal skills, and the opportunity to change someone’s life. also at the ceremony, isabel “cissy” boza sevelin was If you are interested in participating in recognized with a florida bar president’s pro bono service the Thirteenth Judicial Circuit’s Pro Bono award for her continued work on behalf of poor and indigent Committee, or learning about pro bono clients. in 2014, sevelin donated 863 hours to various opportunities available through the committee’s member organizations, please contact organizations, and in 2015 that total was even higher. Committee Chair Rosemary The hcba is honored to have such upstanding role models Armstrong at rosemary@ to serve as leaders in our legal community. crossroadsfloridakids.org.

Author: Amy Bandow - Western Michigan University/Thomas M. Cooley Law School

MAR - APR 2016 | HCBA LAWYER 6 3 suing a foreign (inTernaTional) defendanT: iniTial sTeps Trial & Litigation Section Chair: John Schifino - Burr & Forman

1286, 1292-94 service of (M.D. Fla. 2003). in most cases, process, or if In sum, an action the defendant against a foreign service abroad must has a U.S. defendant belongs comply with the subsidiary that in state court only will be deemed if it arises under rules promulgated the defendant’s state law and there by the hague agent for service is a properly joined of process service convention. co-defendant from purposes, service the same state of process on the s with any case, a as at least one agent within the plaintiff suing a foreign plaintiff. U.S. is valid defendant must decide After commencing the action, service notwithstanding the HSC. whether to sue in state the plaintiff must arrange for See Volkswagenwerk AG, 486 U.S. at court or federal court. Federal courts service of process on the foreign 706-708. Moreover, if the foreign generallyA have original jurisdiction defendant. Serving a defendant in defendant has a U.S. lawyer who over cases arising under federal law the U.S. requires compliance with has entered an appearance on its (federal question jurisdiction) or the applicable state or federal rules behalf in the litigation, courts may between diverse parties (diversity of service. But these rules do not approve motions for leave to serve jurisdiction). 28 U.S.C. §§ 1331, typically apply to service abroad. process on the lawyer in lieu of 1332. Federal question jurisdiction In most cases, service abroad must HSC service. See, e.g., Calista requires that the action be based comply with the rules promulgated Enters. Ltd. v. Tenza Trading Ltd., on federal law, not merely based by the Hague Service Convention 40 F. Supp. 3d 1371 (D. Or. 2014). on state law that is likely to provoke (HSC). The HSC enumerates Additionally, the foreign defendant a federal law defense. Louisville several potential methods of valid may agree to waive formal service & Nashville R. Co. v. Mottley, 211 service, including transmission to of process. Fed. R. Civ. P. 4(d). U.S. 149, 152-53 (1908). Diversity the foreign defendant’s “designated While the HSC applies to most jurisdiction, on the other hand, central authority” or through the foreign defendants, a number of requires complete diversity. Ferry v. postal channels. More than 70 Central and South American Bekum Am. Corp., 185 F. Supp. 2d countries have ratified the HSC, nations have not ratified the HSC. 1285, 1287-88 (M.D. Fla. 2002). including most Western European Of these non-ratifying countries, Complete diversity does not exist countries, China, and Russia. If a most have signed the Inter- where any one defendant is from foreign defendant is a citizen of one American Service Convention the same U.S. state as any one of the HSC’s member states, service (IASC). The IASC and its service plaintiff. Id. However, when a on that defendant must comply with protocol is accessible through the plaintiff wishing to sue a foreign the HSC, and any inconsistent state U.S. State Department’s (international) defendant in state or federal service law is preempted. International Judicial Assistance – court fraudulently joins an in-state Volkswagenwerk AG v. Schlunk, 486 Service of Process defendant simply to defeat complete U.S. 694, 699 (1988); Grupo Radio webpage. diversity, the court will disregard Centro v. Am. Merch. Banking Grp., the improperly joined defendant Inc., 71 So. 3d 151, 151 (Fla. 3d Author: for the purposes of determining DCA 2011). Benjamin S. Briggs - diversity jurisdiction. See Tran v. However, if the foreign defendant Law Offices of Waste Mgmt., Inc., 290 F. Supp. 2d has appointed a U.S. agent for Cynthia N. Sass, P.A.

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6 4 MAR - APR 2016 | HCBA LAWYER v May 19 Law & Liberty Dinner at the Hilton Tampa Downtown

v May 24 HCBa Law Day Membership Luncheon at the Hilton Tampa Downtown

Learn more about HCBA events at www.hillsbar.com. Stay Connected

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MAR - APR 2016 | HCBA LAWYER 6 5 liabiliTy exposure for Work inJuries Workers’ Compensation Section Chairs: Anthony V. Cortese - Anthony V. Cortese, Attorney at Law; and Irene M. Rodriguez - Irene M. Rodriguez, PA

Each DCA employer/ confirmed its carrier filed a ruling that denial. So the where there claimant then was a denial voluntarily of benefits, dismissed each followed by of the claims a voluntary and filed civil dismissal and actions in a civil action, circuit court the Judge of n any serious injury case, against each Compensation should an employer/carrier employer. The employer/carrier Claims was ever file an initial denial The case divested of of benefits? There is was filed in cannot unilaterally change jurisdiction. authority now for the proposition Miami, but its mind after Vazquez v. Ithat an employer/carrier should perhaps Romero, 2015 not until it has thoroughly cognizant an initial denial … and WL 6876664, evaluated exposure: Vazquez v. of the kind avoid an estoppel. at *1 (Fla. 1st Romero & Associated Industries, of liability DCA nov. 9, OJCC Case no. 14-006910. established 2015). In The Vazquez decision has major in Matthews doing so, the implications for workers’ v. Mosaic (a First DCA compensation attorneys and $64.5 million jury verdict for distinguished decisions permitting liability attorneys on both sides of a construction worker reported here discovery in the absence of a the equation, as well as corporate previously), one of the employers pending petition for benefits where and insurance attorneys. (Romero) later attempted to begin workers’ compensation benefits The Florida Workers’ voluntarily providing benefits to were being provided. Compensation Act provides strong the claimant. The claimant refused The effect of the Vazquez immunity provisions for employers Romero’s offer of indemnity and decision is that the employer/ when an employee is injured by the medical benefits and continued carrier cannot unilaterally change employer’s negligence. However, to pursue the civil action. Romero its mind after an initial denial of if the employer/carrier denies an then tried to pursue discovery from workers’ compensa tion benefits employment relationship, workers’ the claimant in the workers’ and avoid an estoppel response compensation coverage, or that the compensation action and also filed to an effort to raise workers’ occurred injury in the course of a request for contribution from compensation immunity in a employment, the employer/carrier the other two employers. An order subsequent civil action. The efforts may be estopped from raising the regarding discovery was appealed, of Romero to reinstate the workers’ workers’ compensation immunity as and the First District Court of compensation claim show that a defense. Byerley v. Citrus Publ’g, Appeals held that the Judge of someone realized that the workers’ Inc., 725 So. 2d 1230 (Fla. 5th Compensation Claims did not compensation exposure was much DCA 1999). have jurisdiction to enter an order more limited than the liability In Vazquez, the claimant alleged regarding discovery in the case exposure, something that should he suffered a severe head injury because all of the Petitions for have been considered before the when he fell about 30 feet at a Benefits had been voluntarily initial denials were filed. construction site. The claimant dismissed. filed workers’ compensation claims In response to a request for Author: Anthony V. Cortese - Anthony against three possible employers. rehearing or clarification, the First V. Cortese, Attorney at Law join A SECTion oR CommiTTEE AT HiLLSBAR.Com.

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Jessica Kirkwood Alley, a Givens Sparks, Cruz-garcia the Hillsborough County partner in Phelps Dunbar’s was chosen to receive the Metropolitan Planning Tampa office, has been selected as THBA’s highest award because Organization’s Citizens Advisory a fellow of the Litigation Counsel of her commitment to law, Committee for Transportation. of America based on her excellence professionalism, and the community LeVine also spoke at the annual in litigation among all segments of through the organization. meeting of the national the Bar. Association of Retail Collection Kevin J. Healey has been Attorneys in Washington, D.C., Lee Bell, CPA, has been named a partner at Smolker, and presented “Practical Insights promoted to president of Bartlett, Loeb, Hinds & on the Most Common Bankruptcy Saltmarsh, Cleaveland & Sheppard, P.A. Healey joined Hurdles Faced by the Collection Gund. the firm in August 2014 and has Practitioner.” devoted his practice to complex Steve Bernstein, managing commercial litigation. Jonathan Lewerenz has partner in Fisher & Phillips’ joined Phelps Dunbar as a Tampa office, has been appointed Dominique E. Heller has been new associate in its Tampa office. treasurer of the greater Tampa named a shareholder with Wiand He will practice in the area of Chamber of Commerce. Guerra King. She concentrates insurance and reinsurance. her practice in the areas of general Robert Blank, of the Tampa commercial litigation and appeals Anne-Leigh Gaylord Moe, office of Rumberger, Kirk & with a focus on the securities and a shareholder at Bush Ross, was Caldwell, was recently re-certified financial services industries. recently sworn in as president of as a Board-Certified Specialist in the Tampa Bay Chapter of the Civil Trial Law by The Florida Bar. Vivian Cortes Hodz, of Federal Bar Association. Moe is Cortes Hodz Family Law & an experienced trial lawyer who Robert “Bob” W. Boos, a Mediation, P.A., was sworn in as has received an AV Preeminent partner at Adams and Reese, has president of the Tampa Hispanic Peer Review Rating by Martindale- been elected to the firm’s Executive Bar Association and will lead the Hubbell for her commercial Committee. The six-partner Adams organization into its 10th year. litigation practice involving and Reese Executive Committee contract and employment disputes, oversees strategic operations of Michael Hooker, Phelps professional liability, and the multidisciplinary firm and its Dunbar Tampa litigation partner, construction law. attorneys and staff. was elected to a fourth consecutive two-year term on The Florida Bar James Marshall Moorhead Stephanie A. Caldwell has Board of governors beginning in has been promoted to partner at joined Smolker, Bartlett, Loeb, 2016. The 52-member Board of Adams and Reese. He is a Hinds & Sheppard, P.A. governors develops and adopts the member of the firm’s Transactions Caldwell focuses her practice policy of the Bar for the state’s and Corporate Advisory Services on the acquisition, disposition, admitted attorneys. Practice group. development, financing, and leasing of commercial real property. William E. Kirilloff has joined Michael Ruel has been Roig Lawyers’ Tampa office. promoted to director at Galloway, Victoria Cruz-Garcia was the Kirilloff concentrates his practice Johnson, Tompkins, Burr & recipient of the 2015 Luis Cabassa on personal injury protection/no- Smith’s Tampa office. Award from the Tampa Hispanic fault and commercial litigation. Bar Association at the annual Marshall Schaap has been gala dinner and ceremony on Dennis J. LeVine, a partner named a partner at Weekley | november 12 at The Palma Ceia in the Tampa office of Kelley Schulte | Valdes, a civil trial law golf and Country Club. A Kronenberg, has been appointed principal attorney at Givens to serve a two-year term on Continued on page 68

MAR - APR 2016 | HCBA LAWYER 6 7 around The associaTion Jury Trial inforMaTion

Continued from page 67 Litigation Advisory Committee For the month of november 2016 focuses on state law issues. Judge: Hon. Richard A. nielsen firm with offices in Tampa and Parties: Dominga garcia v. Ocala. Schaap practices in the Akerman LLP, maintained its Hillsborough Area Regional areas of personal injury and leadership in workplace diversity Transit Authority construction-related matters. He and inclusion by once again Attorneys: For plaintiff: gil manages the firm’s downtown earning a perfect 100 percent Sanchez Valencia; for defendant: Ocala office. score in the 2016 Corporate Michael H. Rosen Equality Index, a benchmarking Nature of case: Personal injury; Jacqueline Simms-Petredis survey administered by the plaintiff sought $491,148 for has been elected into partnership Human Rights Campaign injuries to back and neck at the Tampa office of Burr & Foundation that measures the Verdict: net verdict $6,900 based Forman LLP. equality of corporate policies and upon finding that plaintiff was practices for LgBT employees. 90 percent negligent Jason P. Stearns, an associate in Phelps Dunbar’s Tampa Carlton Fields, for the seventh office, has been elected a fellow consecutive year, received a perfect classified of the American Bar Foundation. score of 100 percent on the 2016 adverTising The American Bar Foundation Corporate Equality Index, earning Fellows is an honorary the distinction of one of the best organization of attorneys, judges, places to work for LgBT equality. OFFICE SPACE located on law faculty, and legal scholars who 2136 W. Dr. M.L.K. Jr Blvd, have been elected by their peers The Florida Medical Clinic Tampa, FL 33607 available for to become a member. Foundation of Caring recently lease or sale. Includes four offices, announced that Bay Area Legal receptionist area, and parking. John V. Tucker of Tucker & Services, a nonprofit legal aid Contact Andrew J. Mirabole, Esq. at Ludin, P.A., presented a lecture on organization, has been selected 813-872-5591 for more information. VA disability compensation at the as a recipient of a $1,450 grant. national Organization of Veterans The grant is part of the Bonezzi Switzer Polito & Hupp Advocates conference in Chicago. foundation’s bi-annual initiative Co. L.P.A., an established Ohio to fund programs and services for defense firm with over 20 attorneys, Luis Viera of Ogden & deserving children, families, and is seeking an attorney with self- Sullivan was elected chairman individuals in Hillsborough and supporting and established client of the City of Tampa Civil Pasco counties. base for affiliation or integration for Service Board. the Florida office. Preferred practice The James Hoyer Law areas: Product Liability Defense, David B. Weinstein, Firm was named Whistleblower general Liability Defense, Workers managing shareholder of the Lawyers of the Year by Taxpayers Compensation Defense, Employment Tampa office of international law Against Fraud at TAF’s 15th annual Defense, Healthcare Law Defense, firm Greenberg Traurig, P.A., awards dinner in Washington, D.C. Asbestos/Environmental Defense, has been named to the State James Hoyer client Peggy Ryan, Medical negligence and nursing Litigation Advisory Committee whistleblower in the off-label Home Defense. Interested attorneys of the U.S. Chamber Litigation marketing case against Endo may forward CV’s to William D. Center, the litigation arm of the Pharmaceuticals, was also named Bonezzi, Bonezzi Switzer Polito & U.S. Chamber. The Litigation Whistleblower of the Year. The Hupp Co. L.P.A., City Center, 100 Center is a nonprofit affiliate of Endo case resulted in a $192.7 2nd Avenue South, Suite 502-S, St. the U.S. Chamber of Commerce million settlement for both criminal Petersburg, FL 33701-4313, email that advocates for the fair and civil charges that the company to [email protected] or fax to treatment of business before courts illegally marketed a pain treatment 727-826-0914. The firm is an equal and regulatory agencies. The State patch called Lidoderm. opportunity employer.

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THE HILLSBOROUGH COUNTY BAR ASSOCIATION pRSRT STd U.S. pOSTAGE pAId LAWYER TAmpA FL CHESTER H. FERGUSON LAw CENTER pERmIT 590 1610 N. TAmpA STREET TAmpA, FL 33602