[PDF] L aw yer THE HILLSBOROUGH COUNT Y BAR ASSOCIATION TAMPA, FLORIDA MAY 2011 VOL. 21, NO. 6 - Free Download PDF (2024)

Download L aw yer THE HILLSBOROUGH COUNT Y BAR ASSOCIATION TAMPA, FLORIDA MAY 2011 VOL. 21, NO. 6...

y aw er L

THE HILLSBOROUGH COUNT Y BAR ASSOCIATION TAMPA, FLORIDA | MAY 2011 VOL. 21, NO. 6

may

IN THIS ISSUE

divisions

features 22

LEADERS: LANSE SCRIVEN by Raymond T. (Tom) Elligett

4 3

26

2011 JUDICIAL PIG ROAST & 5K RUN

28

JOHN ADAMS: A TRIAL LAWYER AT HISTORY’S CROSSROADS

22

by Michael Foster

34

BEING HELPFUL TO EACH OTHER IN OUR COMMUNITIES

THIRTEENTH JUDICIAL CIRCUIT PRESENTS PRO BONO SERVICE AWARDS by Susan Steinberg Sandler

Editor’s Message by Grace H. Yang

4

THE IMPORTANCE OF PRESERVING MEMORIES HCBA President’s Message by Amy S. Farrior

6

28

YLD LAUNCHES NEW PROJECT DURING LAW WEEK— “GRAPHIC NOVELS FOR GRADS” YLD President’s Message by Jaime R. Girgenti

8

SPONTANEOUS STATEMENT & EXCITED UTTERANCE State Attorney’s Message by Mark A. Ober

10

THIRTEENTH CIRCUIT WELCOMES NEW JUDGES

26

From the Courthouse by The Hon. Manuel Menendez, Jr.

a HILLSBOROUGH b o u t COUNTY u s BAR ASSOCIATION

Lawyer

Chester H. Ferguson Law Center 1610 N. Tampa Street, Tampa, FL 33602 Telephone (813) 221-7777, FAX (813) 221-7778

Editor Grace H. Yang Executive Director Connie R. Pruitt Advertising PR/Communications Coordinator Dawn McConnell, CAE [emailprotected], (813) 221-7779

OFFICERS & DIRECTORS President Amy S. Farrior President-Elect Pedro F. Bajo, Jr. Immediate Past President Kenneth G. Turkel Secretary Robert J. Scanlan Treasurer R. Tom Elligett, Jr. Ex-Officio Russell M. Blain J. Carter Andersen Robert J. Nader Benjamin H. Hill IV Colette K. Black Kristin A. Norse S. Gordon Hill Jaime R. Girgenti Susan E. Johnson-Velez Alysa J. Ward Kevin M. McLaughlin

(ISSN 1553-4456) THE HILLSBOROUGH COUNTY BAR ASSOCIATION LAWYER is published monthly, except in July, August, October, January and April, by the Hillsborough County Bar Association. Editorial, advertising, subscription, and circulation offices: 1610 N. Tampa Street, 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 Street, 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 $25. Annual subscriptions to others, $100. Single copy price, $15.00. (All plus tax.) Write to HCBA, 1610 N. Tampa Street, Tampa, FL 33602. 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.

MAY 2011 / HCBA L AWYER

1

may IN THIS ISSUE

sections

46

HEALTH CARE REFORM — LOVE IT OR NOT, IT’S HERE! PART TWO Health Care Law Section by Barbara L. Sanchez-Salazar

12

48

MISAPPROPRIATION OF “IDEA”: ANOTHER HURDLE FOR PLAINTIFFS

committees

14

Intellectual Property Section by Thomas T. Steele and Zachary G. Oseland

50

12

THE DAIRY QUEEN CLOSED DOWN - APPELLATE TRADITIONS

Marital and Family Law Section by Nancy Hutcheson Harris & Katherine C. Scott

52

Appellate Practice Section by Raymond T. (Tom) Elligett, Jr. and Amy S. Farrior

16

IS YOUR SCHEDULE EXPERT STILL AN EXPERT?

SKIPPING THE FIRM: BEGINNING A LEGAL CAREER IN-HOUSE

54

MICHAEL P. MADDUX: 2010 MARCELINO “BUBBA” HUERTA AWARD Criminal Law Section by Rachel May Zysk

44

WHEN TO FILE A FORM DR-430

14

56

HOW TO INCREASE YOUR WEB SITE’S ROI Solo/Small Firm Practitioner Section by Tom Young

58

ISSUE-SPOTTING FOR NON-PROFITS, PART 2 Tax Law Section by Katie Everlove-Stone

60

WILL RECENT CASE IMPEDE BROWNFIELD DEVELOPMENTS?

NEW CIVIL JURY INSTRUCTIONS IMPROVE ORGANIZATION AND CLARITY

Environmental and Land Use Section by Gayle B. Carlson

Trial & Litigation Section by Brad Kimbro and Paul McDermott

HCBA HELPS WOMEN OF TAMPA TO DRESS FOR SUCCESS Community Services Committee Stacy E. Yates Mandelbaum with the help of Dress for Success Tampa Bay

41

Real Property Probate & Trust Section by Lauren Goldberg Raines

Corporate Counsel Section by Cal D. Everett

20

COURT CERTIFIES QUESTION ON ARBITRATION WAIVER PROVISION Mediation and Arbitration Section by Mike Peaco*ck

Construction Law Section by Jonathan D. Perry

18

KAAA-BOOM!: KAAA CASE RESOLVES CONFLICT BUT CREATES QUESTIONS

AGE DIVERSITY AND THE PRACTICE OF LAW Diversity Committee by Jason Goitia

in every issue 53 55 57 61 62 63 63

100 CLUB BENEFIT PROVIDERS JUNE CALENDAR OF EVENTS JURY TRIAL INFORMATION AROUND THE ASSOCIATION CLASSIFIED ADVERTISING ADVERTISING INDEX

about the cover The American Flag accompanied by the POW/MIA Flag waves in the early morning breeze over MacDill Air Force Base. Members of Team MacDill placed a wreath at the bottom of the flag to commemorate POW/MIA day during the first part of a two part ceremony. Base members will meet again during a formal retreat ceremony at the end of the duty day.

2

MAY 2011 / HCBA L AWYER

I

e d i t o r ’ s m e s s a g e G r a c e H . Ya n g , G r a y R o b i n s o n , P. A .

I

Being Helpful to Each Other

in our Communit ies

I remember seeing a bumper Our legal community becomes sticker that had the word even stronger and more united “Community” on it. The word if we help lift each other. “unity” was emphasized in a different color on the bumper sticker. The sticker made me think about how people are fundraisers, and leaders united by geography, profession, in various communities. It is schools, religion, sports teams, great to see our judges and hobbies, charitable causes, and lawyers working together to anything else that supplies a improve our profession. Whether common link with other people. we are helping paying clients I loved the sticker’s message. or pro bono clients, the ultimate People united with a goal is to help people with their common purpose form a closer legal problems. community. We are fortunate I hope some of you will have that our Hillsborough County chances to help those members Bar Association is a strong and in our profession facing active community, for example. challenges, too. I have heard Our members help each from lawyers who have lost other learn more about legal jobs. I have heard from lawyers developments and how to be struggling to keep their practices better lawyers. Our members viable. I have heard from law have opportunities to provide students facing a bleak job and to receive mentoring market as graduation looms. through our interactions with As times continue to be tough each other. Social events like for some, let us try to help lunches and happy hours allow identify opportunities and lend members more time to meet moral support to each other. and feel like a part of the bar I recently attended a community. The number of HCBA conference where there was events each month amazes me. much talk urging attorneys Helping others is a very to lift as they climb. If you satisfying feeling. I am proud benefitted from others lifting to see our members helping out you up as you climbed in your in so many ways as volunteers,

MAY 2011 / HCBA L AWYER

profession, please take some time to thank them. Also, think about how you might now be in a position to lift others as they climb in the profession. Our legal community becomes even stronger and more united if we help lift each other. There is not enough space in this column for me to thank everyone who has helped me become a better lawyer, but I am thankful for each of you who has generously invested some time in me. I have no lawyers in my family by blood, so it is wonderful to have a family in the bar association. Finally, I hope you also took the time this year to mark Administrative Professionals Week (April 24th through April 30th) and showed your gratitude to the professionals who provide critical support in our work lives. Work can be busy and stressful, but helpful and effective administrative professionals make it easier to practice law.

3

h c b a p r e s i d e n t ’ s m e s s a g e A m y S . Fa r r i o r, B u e l l & E l l i g e t t , P. A .

I

The

Importance of Preserving Memories

I just returned AMY FARRIOR AND FAMILY from a family WEST VIRGINIA TRIP odyssey to the wilds of West Virginia, where But what’s more important, they heard family stories they we returned my mother-in-law’s had never heard before. For example, they heard from an ashes to the place of her elderly cousin about their great-great-great grandmother birth. My grown who, as a young girl, was scalped by a raiding party and children met relatives on this left for dead. trip they never knew they had. But what’s more important, they heard family Of course, not all of the recollections they heard stories they had never heard before. For example, were so dramatic. Some were as simple as learning they heard from an elderly cousin about their greatabout the small mountain their grandmother had to great-great grandmother who, as a young girl, was climb every day to attend a one-room schoolhouse scalped by a raiding party and left for dead. Her on the other side, or how mad she was after her mother was killed, but her baby brother survived little brother broke her china doll because that because he was hidden under a cast iron kettle. one doll was all she had. But even these relatively Great-great-great-grandmother lived, but she wore a wig for the rest of her life. Tough woman. Continued on page 5

4

MAY 2011 / HCBA L AWYER

h c b a

p r e s i d e n t ’ s m e s s a g e A m y S . Fa r r i o r, B u e l l & E l l i g e t t , P. A .

Continued from page 4 mundane memories served to enhance my children’s appreciation of their grandmother and her family and may even have given them a deeper understanding of themselves. What disturbs me is the fragility of these memories. While my mother-in-law knew these stories, she did not relate them to her grandchildren. Until our trip to West Virginia, these stories were housed in the memory banks of a blind, eighty year-old woman who undoubtedly had many more stories she did not have time to share with us. My father-in-law is a similar treasure trove of memories. Although he is in excellent health, he is eighty-six years old. We have grown accustomed to hearing him wax on about family or Tampa history, but I fear we have not been paying close enough attention. I worry that when we lose him, we will lose his memories as well unless we take steps to record them for posterity. Like a family, our bar association has a history. The significance of this history was brought home to me at our January membership meeting, when we were treated to the combined recollections of Wm. Reece Smith, Delano Stewart and the Hon. E. J. Salcines. These esteemed colleagues described a segregated Tampa, a Tampa going through the throes of desegregation, a Tampa adjusting to the entrance of women into the legal profession. Just as my children grew from hearing stories about their family, we grew as we heard their stories about our profession. From these stories, we learned how far we have come and how far we have to go. I can’t tell you how many people came up to me after that lunch to say they wished they could have heard more. These memories, however, suffer from the same fragility. Steps must be taken to preserve them. The Young Lawyers Division is contemplating a project to do just that, and I encourage them to proceed with all haste to make this idea become reality. I look forward to the time when the HCBA can serve as a repository for the recorded recollections of our great local lawyers. We, too, need to hear the stories.

Need A Mediation or Meeting Room? Exceptional rooms are available at The Chester H. Ferguson Law Center 1610 North Tampa Street, Tampa, FL 33602 Call HCBA 813-221-7777.

MAY 2011 / HCBA L AWYER

5

y l d p r e s i d e n t Jaime R. Girgenti, Golden & Scaz, PLLC

I

YLD Launches New Project During Law Week—

“Graphic Novels for Grads”

In January of this year, YLD Board Members had the opportunity to attend The YLD has always been dedicated to educating area the Florida Bar Young youth. We saw this innovative tool offered by the NCSC Lawyers Division’s Affiliate Outreach as a great resource which will help students understand Conference (AOC), held in Orlando at the critical role courts play in a democratic society. the Walt Disney World Boardwalk Inn. One of the hallmarks of the AOC is the award of more thousand graphic novels which will be given to area than $40,000 to Florida Young Lawyer Affiliates to high school seniors. The graphic novels provide an fund group projects designed to benefit Affiliates’ innovative and engaging approach for area high membership and/or the public in their local school seniors to learn about our judicial system. community. Represented by Richard Martin (YLD “Justice Case Files” is a series of three graphic Treasurer) and Rachael Greenstein (YLD Board novels produced by the National Center for State Member), your YLD was successful in securing a Courts (NCSC) in an effort to improve the public’s $1,600.00 grant to be used towards a new project awareness of and knowledge about how courts which will be launched during Law Week 2011. work. During LAW WEEK, young lawyers will be We are calling the new project “Graphic Novels engaging high school seniors in discussion on the for Grads.” various issues raised in these graphic novels. With the grant funding, the YLD will be purchasing from the National Center for State Courts1 over a Continued on page 7

6

MAY 2011 / HCBA L AWYER

y l d p r e s i d e n t Jaime R. Girgenti, Golden & Scaz, PLLC Continued from page 6 The YLD has always been dedicated to educating area youth. We saw this innovative tool offered by the NCSC as a great resource which will help students understand the critical role courts play in a democratic society. The story lines and content for the “Justice Case Files” series were developed and edited by a diverse group of judges and legal professionals selected from NCSC’s Board of Directors and staff. The books were illustrated and published by Layne Morgan Media, an educational graphic-novel company. High-school social studies teachers developed comprehensive lesson plans that adhere to curriculum guidelines for each graphic novel. “Justice Case Files 1: The Case of Internet Piracy” weaves together two story lines—one civil and one criminal - to teach students about downloading music and eminent domain. In “Justice Case Files 2: The Case of Identity Theft,” readers follow the Garcia family, victims of an Internet phishing scheme, and learn how the courts can protect victims of identity theft.”Justice Case Files 3: The Case of Jury Duty” tells the story of Matthew Foley, an 18-year-old who has been summoned for jury service. Through Matthew’s story, readers will learn

how meaningful jury service is to the citizens who serve, how the jury system is a source of accountability for the courts, and how our society benefits from the right to a trial by a jury of peers. If you would like more information about how you can get involved with the YLD’s “Graphic Novels for Grads” project, please feel free to contact me. 1

The National Center for State Courts, headquartered in Williamsburg, VA, is a nonprofit court reform organization dedicated to improving the administration of justice by providing leadership and service to the state courts. Founded in 1971 by the Conference of Chief Justices and Chief Justice of the United States Warren E. Burger, NCSC provides education, training, technology, management, and research services to the nation’s state courts. (www.ncsc.org).

Congratulations ... to the HCBA YLD for winning an award at the Florida Bar Young Lawyers Division’s Affiliate Outreach Conference for Member Service Project of the Year. The award recognized the YLD’s Judicial Shadowing Program, which was implemented in November 2010.

HCBA Young Lawyers Division

Coffee at the Courthouse The HCBA YLD hosted Coffee at the Courthouse on March 24th.

MAY 2011 / HCBA L AWYER

7

s t a t e a t t o r n e y ’ s m e s s a g e M a r k A . O b e r, S t a t e A t t o r n e y f o r t h e T h i r t e e n t h J u d i c i a l C i r c u i t

s

Spontaneous Statement & Excited Utterance The court … expressly rejected earlier opinions that required a startling event as a condition precedent to the admissibility of a spontaneous statement.

Successful criminal prosecution requires dedication at every stage of the proceeding, starting with the investigating officers through the attorneys who litigate the case. It is crucial that all available and relevant evidence be utilized in trial. Under Florida Statute section 90.803(1), a spontaneous statement is admissible in evidence. A spontaneous statement is defined as “describing or explaining an event or condition made while the declarant was perceiving the event or condition, or

8

immediately thereafter, except when such statement is made under circ*mstances that indicate its lack of trustworthiness.” Not long ago, the courts had lumped this exception together with the excited utterance exception and required a startling event before admitting a spontaneous statement. This was contrary to the Florida Evidence Code, and our Continued on page 9

MAY 2011 / HCBA L AWYER

s t a t e a t t o r n e y ’ s m e s s a g e M a r k A . O b e r, S t a t e A t t o r n e y f o r t h e T h i r t e e n t h J u d i c i a l C i r c u i t Continued from page 8 office fought hard for the admissibility of the spontaneous statement in the case against William DeParvine, who is accused of murdering a husband and wife. The defense filed a motion seeking to exclude these statements, citing Florida cases requiring a startling event as a condition precedent to admissibility of a spontaneous statement. We filed a legal brief vigorously defending the spontaneous statement exception as separate and distinct from the excited utterance exception and seeking to preserve it as an evidentiary vehicle. The trial court accepted our argument and admitted certain spontaneous statements. Using these statements and other crucial evidence, we successfully convicted DeParvine. He now sits on death row. When the DeParvine case came to the Florida Supreme Court on appeal, the court conducted an

MAY 2011 / HCBA L AWYER

exhaustive review of the history of the spontaneous statement exception and expressly rejected earlier opinions that required a startling event as a condition precedent to the admissibility of a spontaneous statement. The court stated that, “because we now conclude that this view requiring a startling event in order for the spontaneous exception to apply is contrary to the underlying principles embodied in section 90.803(1), we now reject this view.” Deparvine v State, 995 So. 2d 351 at 369 (Fla. 2008). In so ruling, the Florida Supreme Court has preserved the spontaneous statement exception as one distinct from, and in addition to, the excited utterance exception. The court also noted that a response to a question may be admitted under this exception, depending on the circ*mstance. The statute does permit a trial judge to exclude spontaneous statements that lack trustworthiness.

9

f r o m

t h e

c o u r t h o u s e

C h a i r : T h e H o n o r a b l e To m B a r b e r Circuit Court Judge, Thirteenth Judicial Circuit

t

Thirteenth Circuit Welcomes New Judges

The inevitable process of judicial retirements, resignations, and promotions results in judicial vacancies being more the rule rather than the exception. However, for the first time in recent memory, the Thirteenth Judicial Circuit is presently operating with its full complement of Herb Berkowitz 45 Circuit Judges and 17 County Judges. This was made possible by the recent appointments of Scott Farr and Herb Berkowitz to the Hillsborough County Court. Late last summer, Scott Farr was appointed by Governor Crist to fill a County Court vacancy created by Judge Paul Huey’s elevation to the

For the first time in recent memory the 13th Judicial Circuit is presently operating with its full complement of 45 Circuit and

Scott Farr

17 County Judges. Circuit Court. He is a graduate of Auburn University and the University of Florida College of Law. He has been an Assistant State Attorney, an Continued on page 11

ASK-A-LAWYER VOLUNTEERS Dale Appell n Michael Fluke n Larry Samaha n Anissa Morris n Dennis Morgenstern n Natalia Grisales n Jesus Elizarraras n

Frances Perrone n A J. Musial Jr. n William Schwarz n Rinky Parwani n Adam Brown n Tom Hyde n

If you would like to volunteer for these programs, please contact Pat at 221-7783 or email [emailprotected]

10

MAY 2011 / HCBA L AWYER

f r o m

t h e

c o u r t h o u s e

C h a i r : T h e H o n o r a b l e To m B a r b e r Circuit Court Judge, Thirteenth Judicial Circuit

Continued from page 10 Assistant Statewide Prosecutor, and was a partner in the law firm of Cotter, Valerino, Zelman and Farr, practicing criminal and family law. Immediately prior to his appointment, he was the Central Florida Regional Chief for the Florida Attorney General’s Medicaid Fraud Control Unit. He has been married to his wife Beth for 25 years. They have one daughter, Coulter, who has just been admitted to the University of Florida. Judge Farr is currently assigned to the County Civil and Civil Domestic Violence divisions. Another vacancy on the County Court occurred last fall when Judge Cheryl Thomas was elevated to the Circuit Court. In late December of last year Governor Crist appointed Herb Berkowitz to fill that vacancy on the County Court. Judge Berkowitz is a 1971 graduate of the University of Wisconsin School of Law, during which time he also served in the Wisconsin National Guard and later in the U.S. Army Reserve. He served in the U.S. Department of Justice, first with the Antitrust Division, and then

MAY 2011 / HCBA L AWYER

as an Assistant U.S. Attorney in Cleveland, Ohio. He came to Tampa in 1978 with the Organized Crime and Racketeering Section of the Criminal Division of the Justice Department. In 1980, Judge Berkowitz entered the private practice of law, concentrating in the area of civil litigation, with a primary emphasis in plaintiffs’ personal injury law. In 2000, he merged his practice with the firm of Clark & Martino P.A., where he has practiced in an Of Counsel position until his appointment to the Bench. He has been married for 42 years to his beautiful wife, Gloria, who teaches reading at the Hillel School of Tampa. Their son Peter and daughter-in-law Robin live in Louisville, Kentucky. Judge Berkowitz is currently assigned to the County Civil Division. Changes in personnel may result in changes to existing judicial assignments, so it is always helpful to consult our official web site www.fljud13.org for the most current information on these matters. Author: The Honorable Manuel Menendez, Jr., Chief Judge, 13th Judicial Circuit

11

THE DAIRY QUEEN CLOSED DOWN - APPELLATE TRADITIONS Appellate Practice Section Chairs: Duane A. Daiker, Shumaker, Loop & Kendrick, LLP, and Marie A. Borland, Hill Ward Henderson

We mourn the passing of this appellate “tradition,” but appreciate some important ones that still endure. efore the Second District Court of Appeal had a Tampa Branch, and for about half the cases since, when we left Lakeland after an oral argument to return to Tampa, we drove back west on Memorial Blvd (Highway 92) to reach the interstate. On the way, on the right side of the road for easy access, was a Dairy Queen. If the argument went well, the Dairy Queen supplied a sweet reward. If the argument was less well received than you had hoped, you could find some small comfort in a frozen treat for the ride home. To our great dismay, the Dairy Queen closed a few years ago. It sits vacant, the sign that formerly advertised specials now only saying “for sale.” We mourn the passing of this appellate “tradition,” but appreciate

B

The Dairy Queen on Memorial Blvd. has closed.

some important ones that still endure. Perhaps most notably— in this era of increasing caseloads and efforts to process the cases— is the Second District’s continued tradition of granting oral arguments in final appeals where a party requests it. The percentage of cases in which the Eleventh Circuit, and some other intermediate appellate courts, permit argument has diminished over the years. When the Eleventh Circuit was created in 1981, it held oral argument in about 60% of its cases. By 1999, that was down to 25%, Today it is less than 20%. But in the Second District, if any party in a final appeal requests oral argument, the Court schedules

oral argument. Of course, there may be some final appeals disposed of before argument— for example, where a lack of jurisdiction becomes apparent. In part, the Court has been able to continue this tradition because of enhanced technology and innovations in handling cases. In this era, it is difficult to imagine trying to manage 6,000 appeals a year without a computerized docketing system. The requirement that counsel submit briefs electronically saves time in the preparation of the bench summaries. Another oral argument tradition practitioners enjoy in the Second District is the courtesy the Court Continued on page 13

ST. PATRICK’S DAY

Happy Hour

HCBA members enjoyed the St. Patrick’s Day Happy Hour celebration on March 17th at the Chester H. Ferguson Law Center. Thank you to Insurance Office of America for sponsoring this event!

12

MAY 2011 / HCBA L AWYER

THE DAIRY QUEEN CLOSED DOWN - APPELLATE TRADITIONS Appellate Practice Section

Right: Life-size dinosaurs stand facing I-4 at the entrance to Dinosaur World. Far right: The row of silver metallic RVs stuck in the ground, a la the Cadillac Ranch in Amarillo, Texas.

Continued from page 12 shows those who appear before it. Some members of a panel may have questions that target perceived weaknesses in an advocate’s position. But those inquiries are posed in a professional

and civil manner—not so as to belittle or demean an advocate. This is also the case when the Court hears from a pro se advocate. Some traditions have been replaced by innovations most would consider improvements. For example, posting opinions on the

Court’s website on the day the Court issues them makes for much easier access than the old practice of setting out written copies of the opinions at the Court’s branches. The posting has given rise to a new “tradition,” for those who make a point to check the website on Wednesday and Friday mornings. Although the DQ has closed, the drive from Lakeland back to Tampa offers some sights that may bring a smile after a rough morning. As one passes Plant City heading west, the life-size dinosaurs stand facing I-4 at the entrance to Dinosaur World. A little farther toward Tampa stands the row of silver metallic RVs stuck in the ground, a la the Cadillac Ranch in Amarillo, Texas. For those who simply must have one, there is a new Dairy Queen on Highway 98 (Florida Avenue), north past the I-4 entrance. It would require a more circuitous route back, but, it might be worth the drive on some days. Authors: Raymond T. (Tom) Elligett, Jr. and Amy S. Farrior, Buell & Elligett, P.A.

MAY 2011 / HCBA L AWYER

13

HCBA HELPS WOMEN OF TAMPA TO DRESS FOR SUCCESS Community Services Committee Chairs: Stacy E. Yates, Mandelbaum, Fitzsimmons & Hewitt, P.A., and Mindi B. Lasley, Mindi Lasley, P.A.

n March, the Community Services Committee, along with the Tampa Bay Paralegal Association, organized a “Ladies Suit and Handbag Drive” for Dress for Success Tampa Bay. When the Community Services Committee needs help, members of the Hillsborough County Bar Association never fail to disappoint!

I

The Community Services Committee coordinated with the concierge services of several buildings around Tampa and collected over 500 suits and 100 handbags during the month of March. With the donations, numerous women will have the confidence to start a new job with businessappropriate clothing. Dress for Success is a non-profit

“Success is not only about getting a job; it’s about building a career” — Dress for Success

organization that provides professional clothing, career development tools and a network of support to struggling and disadvantaged women returning to or entering the workforce. The Dress for Success suiting program provides a crucial first step in a woman’s journey toward Continued on page 15

Free Wireless Internet Access 2633 McCormick Drive, Suite 101, Clearwater, Florida 33759 www.dalan-katz.com Phone: (727) 796-1000 or (800) 538-4173 Facsimile: (727) 797-2200

14

MAY 2011 / HCBA L AWYER

HCBA HELPS WOMEN OF TAMPA TO DRESS FOR SUCCESS Community Services Committee

Continued from page 14 self-confidence, self-sufficiency, and ultimately, a return to the workforce. Dress for Success clients come from a variety of places on a referral-only basis. Some clients were homeless or the victims of domestic violence. Some clients have been recently released from prison or have been sidetracked from a serious illness. Numerous non-profit organizations, including prison rehabilitation services, Alpha House, Workforce, Salvation Army, Metropolitan Ministries and The Centre for Women refer clients to Dress for Success. In 2010 alone, Dress for Success Tampa Bay served more than 1,000 women by providing career services and over 700 suits. Each client receives one suit when she has a scheduled interview. After a client finds employment, she can return to the Dress for Success boutique for a personal fitting. A trained personal shopper helps wardrobe the client with additional business apparel to mix and match for up to a week’s worth of businessappropriate outfits, a pair of shoes, and a handbag. Additionally, Dress for Success provides each client with makeup and coupons for a complimentary haircut and manicure from local cosmetology schools. Dress for Success services do not end once a client has obtained full-time employment. Once employed, a Dress for Success client is offered membership into the Dress for Success Professional Women’s Group. This networking group is designed to make the transition from unemployment to working

MAY 2011 / HCBA L AWYER

Each client receives one suit when she has a scheduled interview. After a client finds employment, she can return to the Dress for Success boutique for a personal fitting.

a smooth one. The Professional Women’s Group provides seminars and meetings to help clients understand corporate culture, manage personal finances, childcare issues, stress, and juggle responsibilities. Members of the Professional Women’s Group have access to professional resources to help further their professional and personal growth. Kelly Falconer-Miller, a Dress for Success Board Member and Volunteer Coordinator, says it best: “Dress for Success is available to women in need only because of the generous donations of money, time, and clothing from individuals and organizations such as HCBA. Volunteer opportunities include fundraising, special events, social media marketing, clothing drives, public speaking, career center consultant, personal shopper (dress clients for interviews), office and boutique

assistance, or something else that an individual or business wants to contribute.” The Ladies Suit and Handbag Drive would not have been possible without the generous support of the Tampa Bay Paralegal Association and Jan L. Brown, paralegal at James Hoyer. Ms. Brown spent numerous hours helping me coordinate the drive and deliver donations to Dress for Success. Thank you for your generosity to such an excellent cause. To learn more about how you can help Dress for Success and/or to schedule a tour of the boutique, send an email to volunteerdfs@ gmail.com, call 813-259-1846, or visit www.dressforsuccess.org/ tampabay. Author: Stacy E. Yates Mandelbaum, Fitzsimmons & Hewitt, P.A,. (with the help of Dress for Success Tampa Bay)

15

IS YOUR SCHEDULE EXPERT STILL AN EXPERT? Construction Law Section Chairs: Timothy D. Woodward, Forizs & Dogali, P.L., and Timothy C. Ford, Hill Ward Henderson

As the industry undergoes its transition to the new application, it is extremely important that construction attorneys take steps to properly vet their schedule experts in order to determine whether their skill sets still meet the needs of the cases under consideration.

xperts in forensic scheduling often rely upon sophisticated computer software packages to perform the numerous mathematical calculations necessary in Critical Path Method (CPM) schedule analysis. In the domestic construction industry, the most commonly used CPM scheduling applications are Microsoft Project and the Primavera suite of applications from software developer Oracle. While Project is well suited for CPM scheduling on a host of smaller construction projects, many contractors and construction experts turn to Primavera to plan and analyze larger construction assignments.

E

Until recently, contractors wishing to use the powerful tools that Primavera offers could choose among several versions of the software, including Primavera SureTrak, P3, P5, and P6. As the basic mechanics of construction planning and scheduling have not changed since the introduction of P3 in the mid-1990’s, many contractors have chosen to forego the considerable expense of purchasing updates to the program. As a result, a great many construction projects are currently being planned using 15-year-old software, a highly unusual situation in most industries. This heavy dependence on P3 within the construction industry has

similarly led some schedule experts to put off the substantial costs that version upgrades entail and to continue to use the same P3 software as their clients. Unfortunately, continued reliance on P3 is no longer a viable option for construction schedulers and schedule experts. Oracle (which purchased Primavera in 2008) has discontinued the sale of the product effective December 31, 2010, meaning that all new users seeking to do complex scheduling must purchase the Primavera P6 application. This change is extremely significant as the two applications have substantial Continued on page 17

Const ruct ion Law Luncheon Construction Law Section members met for continuing legal education on February 17th. Thank you to our sponsor Fifth Third Bank!

16

MAY 2011 / HCBA L AWYER

IS YOUR SCHEDULE EXPERT STILL AN EXPERT? Construction Law Section

Continued from page 16 differences in a number of key areas that impact forensic schedule analysis. These include substantial changes to: • Logic-driven schedule calculations; • Resource-driven schedule calculations; • Baseline schedule identification and maintenance; • Multi-project coordination and scheduling; • Schedule calendars; and • Date fields and date calculations. In addition, P6 is built on a multi-user Oracle database platform

that is administered very differently than the earlier Primavera P3. Obtaining an excellent working understanding of the use and behavior of the new P6 software is vital for a schedule expert. An expert’s inadequate or incomplete understanding of the calculations being performed can leave the expert’s analysis and conclusions open to challenge. This is especially true in an industry environment where many large contractors and others working on complex projects have already begun to use the advanced features of the P6 software in order to optimize their project planning. The result of the cancellation of the P3 application and the

construction industry’s shift to Primavera P6 is that both project schedulers and schedule experts must educate themselves on the features of the new software in order to build and analyze construction schedules accurately. As the industry undergoes its transition to the new application, it is extremely important that construction attorneys take proper steps to vet their schedule experts in order to determine whether their skill sets still meet the needs of the cases under consideration. Author: Jonathan D. Perry, PSP, Hill International, Inc.

2011 Judicial Pig Roast & 5K Run Thank you to our Sponsors! Big Kahuna

5K Star

Adams and Reese LLP AvMed Health Plans Broad and Cassel Isom Mediation Joe Caimano Criminal Defense The Bank of Tampa Williams Schifino Mangione & Steady P.A.

Masada Corporate Wellness Mason Black & Caballero PA Michael P. Maddux, P.A. Thomas & LoCicero PL Thorpe Law Firm, P.A.

Surfer Star Banker Lopez Gassler P.A. Cardillo Law Firm Cole, Scott & Kissane, P.A. Digital Legal Florida Coastal School of Law Hinshaw & Culbertson LLP MetLife Trial Consulting Services

MAY 2011 / HCBA L AWYER

In-kind Sponsors Arbonne Black Eyed Susan Photography Expedite Products Feet First Gasparilla Distance Classic Association Hooker Tea Co. Massage Therapists: Terri Lee, LMT and Jessica Rosemont Metropolitan YMCA R&S Auto Body Thompson Studios

17

SKIPPING THE FIRM: BEGINNING A LEGAL CAREER IN-HOUSE Corporate Counsel Section Chairs: Nicole D. Strothman, Ideal Image Development Inc.; Stanley K. Kinnett, Brown & Brown; and A. Courtney Cox, Wellcare Health Plans Inc.

orking in-house is, for many lawyers, the dream job. After all, there are no billable hours, and best of all, no pesky clients. Many lawyers work for years to build credentials significant enough to allow them to leave the grind of firm life and relax in the oasis of in-house practice. Interestingly enough, most of the same people who espoused the glories of working in-house also offered many words of warning about starting out there. I have, over my first year of practice, come to understand the significance of their warnings, developed a unique understanding of the benefits of skipping the traditional route, and learned that life in-house is as good as many lawyers imagine. I was warned time and time again about all I might miss out on by beginning my career in-house. I would never be able to build a specialty. I would never be able to create a résumé that would make me marketable and help me advance my career. Almost all of those warnings proved true. There is a lot of detail that your average large firm associate has learned that I haven’t and that I may never.

W

forced to take That is an immediate, a sacrifice active role in worth management. making. This immediate The nature high level of of in-house responsibility is work, at both maddening least at and empowering. a large By being one of only Starting inprivately a few attorneys in house also affects held your outlook on company, is that it a company, you’re the provision of is eight miles wide forced to take an legal services. and only about immediate, active The foundation two inches deep. I’ve gained inWhile skipping the role in management. house will always traditional route This immediate cause me to may mean never see the practice becoming an expert high level of of law from the at any particular responsibility is client’s perspective practice, it also has first. This type of meant exposure to a both maddening client-centered much larger number and empowering. view will be of legal issues than invaluable your average firm throughout any associate. business or legal career. There are a number of Finally, for all of those dreamers, considerable advantages to starting sitting in a dimly lit firm, trying in-house. Everyday, novel challenges hard to bill that 2,000th hour, an inpresent themselves, and a number house job really is as good as you of those challenges require the imagine. In-house, you create the retention of brilliant outside objectives, and your focus is always counsel. No matter the issue, I on one seminal goal; increase have been able to learn from the and protect the production and best and brightest practitioners in profitability of the enterprise. The every field. The experience I’m in-house practice is one of building lacking is only a phone call away. something and Another great advantage empowering those of beginning in-house is the around you development of an entirely to succeed. different set of communication and management skills that many firm Author: Cal D. associates will take much longer Everett, Ideal Image to gain. By being one of only a few Development Corp. attorneys in a company, you’re

JOIN THE CORPORATE COUNSEL SECTION — CALL 813-221-7777.

18

MAY 2011 / HCBA L AWYER

MAY 2011 / HCBA L AWYER

19

MICHAEL P. MADDUX: 2010 MARCELINO “BUBBA” HUERTA AWARD Criminal Law Section Chair: Mark P. Rankin, Shutts & Bowen, LLP

he late Marcelino “Bubba” Huerta III improved the legal profession by example. An excellent attorney, he defended his clients with an even balance of passion and professionalism. Many of those clients could not afford to pay him. Former colleagues recall that Mr. Huerta always seemed to be representing someone pro bono: an acquaintance down on his luck, a friend of a friend, an indigent client who pulled at his heartstrings. After Mr. Huerta passed away in 2008, the Criminal Law Section created an award in his memory in order to recognize annually a criminal practitioner who demonstrated the ideals of the life that Mr. Huerta lived. This year’s deserving recipient is Michael P. Maddux. Maddux is a board certified criminal trial attorney and the owner of Michael 1 P. Maddux, P.A. Maddux has been practicing criminal law for nearly nineteen years, initially as a prosecutor with the offices of the Hillsborough State Attorney and the Statewide Prosecutor. As part of and in addition to running a thriving law practice, Maddux has shown an extraordinary devotion to helping the poor and disadvantaged. For example, Maddux chairs and provides free legal services for the Palma Ceia Presbyterian Church’s “Timothy

T

20

Initiative,” Jeremiah and assisting men Alex can attest who have made to Maddux’s an affirmative unwavering decision to support. abandon drugs, Jeremiah, a crime, and life full-time college on the streets. student, met Additionally, Maddux eight through Bay Area years ago through Legal Services, Big Brothers/Big Maddux handles Sisters. He still seal and expunge regularly visits requests for Maddux and individuals whose his family. Alex Michael P. Maddux criminal history met Maddux four is impeding years ago through their employment the Guardian ad It brings me great opportunities. litem program. Maddux’s pro Then, Alex was joy to work with bono activities an eleven-yearpeople in need … reveal a deeplyold Tampa Bay rooted purpose. Academy student many folks have He seeks to make who struggled never had anyone a meaningful, with psychological, stand up for them. long-term impact academic, and on the lives of fitness issues. the less fortunate; Maddux devoted one that endures himself to Alex, well beyond the taking the time resolution of their to earn his trust immediate legal and help him issues. This is to overcome made further his difficulties. apparent in how Maddux bought Maddux describes Alex book series his work with the to pique and hold Big Brothers/ his interest in Big Sisters and reading and Guardian ad introduced him Marcelino “Bubba” Huerta III litem programs. to physical fitness “The best part,” through good he stated, “is old-fashioned bonding with the bribery by paying children and giving them a him pennies for push-ups and sitsupport base that isn’t going to go ups. Alex is now in a therapeutic anywhere no matter what they do, foster home. He is excelling as a what trouble they get in, and no student athlete and was accepted matter how many foster homes they go to.” Continued on page 21

MAY 2011 / HCBA L AWYER

CALL FOR NOMINATIONS: 2010 BUBBA HUERTA AWARD Criminal Law Section

Continued from page 20 into the high school ROTC scholarship program. Service to the bar and his community appears to be a regular part of Maddux’s daily activities. Maddux spent a recent Friday afternoon assisting a colleague to prepare for oral argument before the United States Supreme Court. He left in time to pick up a bus and shuttle attendees to a concert his church hosted to raise funds for the homeless. At one time, he might have returned home to a seemingly unlikely roommate: an indigent client. Indeed, Maddux once took a client, an unemployed carpenter, into his home for several months. Maddux reached out to his contacts and found work for the man. The man was able to build a strong network and is now self-sustaining. Finally, not even Maddux’s vacation time is exempt from volunteer work. On three occasions in the last seven years, Maddux has volunteered a week to help some of the world’s most impoverished people. In Honduras, he installed basic plumbing in a village and laid cement floors in huts. In Haiti, he provided support to a rural hospital, triaging 250 patients in seven days and monitoring the post-op recovery. In Malawi, Africa, Maddux worked in a “crisis nursery” run by the Ministry of Hope. The nursery provided the only alternative for children whose parents had died, sick children whose parents could not care for them, and infants whose were either unable to breast feed or could not due to HIV. In reflecting on his numerous legal and non-legal charitable

MAY 2011 / HCBA L AWYER

Michael Maddux shares yoga with children in Malawi, Africa.

activities, Maddux remained modest, stating simply, “It brings me great joy to work with people in need … many folks have never had anyone stand up for them.” Like Mr. Huerta, Maddux leads by example. 1

See www.madduxattorneys.com. In addition to state and federal

criminal defense, Maddux concentrates primarily in the areas of civil rights and personal injury litigation.

Author: Rachel May Zysk, Carlton Fields, P.A.

HCBA Lawyer Referral Service HCBA’s Lawyer Referral Service handles more than 14,000 calls a year. With over 140 attorney members, averaging 10 years of legal experience in over 90 areas of law, the LRS is ready and able to serve you and your clients. Please refer your clients to the Hillsborough County Bar Association LRS when the case involves an area of law you do not practice.

Contact the Lawyer Referral Service at (813) 221-7780 for more information.

21

feature

Leaders:

Lanse Scriven

t

This month, the Hillsborough County Bar Association (HCBA) proudly profiles Lansing C. Scriven, the first African-American lawyer from the Thirteenth Judicial Circuit to serve as our circuit’s representative to the Florida Bar Board of Governors. Known to most as “Lanse,” he is currently serving his second elected term in that position. Before being elected to the Board of Governors, Lanse Duke Graduation – Lanse and Mary distinguished himself as the first African-American President of the HCBA for the 2005-2006 term. His most memorable event from that year is that the HCBA broke

22

“…Lanse stands as a model for what young lawyers can achieve if they make the effort to strive for excellence in their professional and personal pursuits.” ground on the Chester H. Ferguson Law Center. Lanse also served for three terms as president of the George Edgecomb Bar Association and for one term as president of the Florida Chapter of the National Bar Association. Additionally, Lanse served as Continued on page 23

MAY 2011 / HCBA L AWYER

Continued from page 22 Chair of the Business Litigation Committee of the Florida Bar’s Business Law Section. The notion of being a “first,” however, is not a novel concept to Lanse as he notes that his own father was one of several “firsts,” including being appointed the first African-American chief of police for the Duval County Sheriff’s Office in 1973 and in 1975 being appointed as the first African-American member of the Florida Parole and Probation Commission. Real progress will come, Lanse believes, when we reach a point “when there is nothing left to which to be selected as the first African American.” A native of Jacksonville, Florida, Lanse graduated from Duke University in 1984 with a B.A. in Public Policy. He is a 1987 graduate of Florida State University College of Law, with Honors, where he served as an editor of the FSU Law Review and a member of the moot court team. After graduating from Duke, Lanse clerked for the Honorable Joseph W. Hatchett, former

MAY 2011 / HCBA L AWYER

Chief Judge of the United States Court of Appeals for the Eleventh Circuit. Lanse looks back on his clerkship with great fondness as he considers it an honor to have clerked for a jurist widely regarded as a trailblazer in the profession. Following his clerkship, Lanse joined Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullis, P.A. as the firm’s first AfricanAmerican lawyer. Lanse went on to become a shareholder Continued on page 24

23

Continued from page 23 and hiring partner at Trenam Kemker, where he practiced for 12 years before establishing his own practice in 2001. His firm, Lansing C. Scriven, P.A., one of the preeminent small firms in our community, handles a diverse range of business and commercial litigation matters for businesses, governmental and quasi-governmental entities, and individuals. Lanse’s reputation for excellence in the profession, both in legal ability and professionalism, has been recognized by his AV Martindale-Hubbell rating and his consistent selection to Florida Trend’s Legal Elite, Florida Super Lawyers, and as a Fellow of the American Bar Foundation. Florida Bar President-Elect Scott Hawkins has worked with Lanse on the Florida Bar Board of Governors. Scott notes that Lanse is thoughtful, reflective, and measured in his words. Lanse has taken courageous positions on the Board. It was obvious he thought through his positions, and consequently the other Board members carefully considered his views. Scott says Lanse has the potential to be a statewide leader, and in some ways already is, given the respect he garners on the Board. Scott has such respect for him that he asked Lance to co-chair the Florida Bar Convention a year from this June. Lanse cites Marvin Barkin as a mentor. Marvin says Lanse is a good solid lawyer and citizen. Marvin continues: “He’s done well, and he is well intentioned.” Marvin said he had no anecdotes to relay about Lanse because Lanse is always under control. Attorney Eddie Suarez has known Lanse since they were in law school. He lauds Lanse’s genuine integrity, adding he is a great individual and family man. Julie Sneed explains Lanse’s influence on her and other young lawyers, “Lanse has been an excellent mentor for me over the years. He was a partner at my first law firm at Trenam. From my perspective as a young associate, he was at the pinnacle of his career. He worked hard, had great

relationships with the lawyers at the firm and was well regarded as an excellent lawyer. Lanse was and remains a consummate professional. He was also the only other African-American lawyer at the firm at that time. His presence and mentoring let me know that it was possible to be successful. As a mentor, Lanse never sugar coated anything. He was quick to say that first year lawyers don’t know anything. This was a big knock to the bright-eyed, bushy-tailed high achievers that we all were as first year lawyers, but how true it was. His frank advice let us know that there was a lot to learn and that we would always continue to learn something new.” Although he is considered a lawyer’s lawyer, Lanse also devotes considerable time to serving the community at large. He has served as president of the Board of Directors of the Gasparilla Festival of the Arts, president of The Tampa Club, and on the boards of directors of Tampa General Hospital and the Tampa Housing Authority. He has also served as legal counsel to the Greater Tampa Chamber of Commerce Board of Directors. When not preoccupied with the practice of law or serving the community, Lanse enjoys working out; collecting art; and traveling on country roads without an itinerary with his wife of 23 years— Mary Scriven, United States District Judge for the Middle District of Florida. During his first day on campus at Duke, Lanse met then fellow freshman Mary Stenson. What initially began as a close platonic relationship eventually blossomed into a lifelong partnership after she asked him out (he claims) during their senior year at Duke. The couple has four children: Tyler, Jessica, Sarah and Charles. If Lanse seems to disappear for the entire month of March, that is because he is an avid —though some might say rabid— Duke basketball fan. Shown in this article with his father at a recent game at Cameron Indoor Stadium on Duke’s campus, one can see he is most relaxed when he is watching Duke win or watching anyone beat the North Carolina Tar Heels. Lanse proudly notes that daughter Sarah, a high school senior in Continued on page 25

HCBA INSTALLATION OF OFFICERS JUNE 27, 2011 5:30 P.M. - 7:30 P.M. CHESTER H. FERGUSON LAW CENTER

24

MAY 2011 / HCBA L AWYER

Continued from page 24 the IB program at Hillsborough High School, was recently accepted to Duke. Among the accomplishments of which Lanse is most proud is a men’s fellowship group he and a close friend started last year. Lanse describes the group’s purpose as men encouraging each other to become men of stronger Godly character. That friend is Dr. Lee Green, who as a boy attended the church where Lanse’s father was the pastor, and grew up with Lanse. When both left for college, they lost contact for 26 years. When Lee moved to Tampa four years ago to practice at Moffitt Cancer Center, they picked up as if they had never lost contact. Lee describes Lanse as a tremendous family man, with the highest ethics, and a true friend— which are really hard to find—the one person in his life who will have his back. Together they created a men’s group and serve as mentors to younger men in the community who may be experiencing difficulties. Dr. Green notes that as busy as Lanse is, he takes the time to give back. Lanse Scriven’s leadership in our legal community and our broader community have

MAY 2011 / HCBA L AWYER

Lanse with his father Charles Scriven at a recent game at Cameron Indoor Stadium on Duke’s campus

benefitted both in multiple ways. Beyond that, Lanse stands as a model for what young lawyers can achieve if they make the effort to strive for excellence in their professional and personal pursuits. Author: Raymond T. (Tom) Elligett, Jr., Buell & Elligett, P.A.

25

2011 Judicial Pig Roast & 5K Run April 9, 2011 BOOTH RESULTS • Best Pig Slop: Trenam Kemker • 2nd Place Pig Slop: Tie between Judges of the 13th Judicial Circuit and Adams & Reese LLP • Best Pig Sty: Trenam Kemker • 2nd Place Pig Sty: Adams & Reese LLP

5K RACE RESULTS Most Pro Bono Hours Raised • Individual: Hannah Brannan, 95 Hours • Team: Bay Area Legal Services, 90 Hours Team Winners • Convingtons Krewe • BTD Warriors • Thompson, Sizemore, Gonzalez, Hearing Fastest Runners • Todd Aidman, Ford & Harrison LLP • Trish Cohen, State Attorney’s Office

Join the Celebration - Connie’s Soiree (CONNIE PRUITT’S RETIREMENT PARTY AND FAREWELL) Thursday, June 9, 2011 from 5:30 - 7:30 p.m. The Chester H. Ferguson Law Center 1610 N. Tampa Street Please RSVP at 813-221-7777 or [emailprotected]

26

MAY 2011 / HCBA L AWYER

MAY 2011 / HCBA L AWYER

27

feature

In time, he considered his role in the case one of the finest services he ever performed for his country.

John Adams: A Trial Lawyer at History’s Crossroads

I

In recognition of his profound and everlasting contributions to our country as president, statesman and Founding Father, the theme for Law Day 2011 is John Adams’ career as a lawyer, with special focus on his defense of Captain Thomas Preston and the other British soldiers criminally charged in the deaths of the five Massachusetts citizens in what is historically known as the Boston Massacre. The Boston Massacre occurred the same year that Adams turned 35. He had been in practice 12 years and was considered one of the leading trial lawyers in Boston. He had represented John Hanco*ck, one of the colony’s wealthiest men, when the English seized his ship The Liberty for failure to pay import duties. He also defended four Irish seamen charged with killing an English naval officer who attempted to impress them into service, a practice hated by the colonialists. Boston was a hotbed of political activity. The English parliament had enacted laws that imposed

heavy taxes on the colonies. The townspeople of Boston resisted collection efforts, often violently. After countless provocations, British troops were sent to restore order to the disruptive colony. The troops arrived in Boston in 1768 and were greeted with a hostility that never waned. They were unsuccessful in quelling the resistance to English rule. By March 5, 1770, tension in the town had reached its peak. Groups of citizens and soldiers clashed with each other throughout the evening. The fatal encounter took place in front of the Customs House on King Street. In it, four members of a mob confronting eight British soldiers were shot dead, and a fifth later died of his wounds. The soldiers were charged with murder. They sought in vain to obtain counsel. Adams and his young associate Josiah Quincy were approached by friends of Captain Preston, the officer who commanded the accused troops, and both lawyers Continued on page 29

Buell &

Elligett

, P.A.

Plaintiffs’ Personal Injury and Wrongful Death u Eminent Domain Civil Appeals u Insurance Coverage u Commercial Litigation 3003 W. Azeele Street, Suite 100, Tampa, FL 33609 (813) 874-2600 Fax (813) 874-1760 www.belawtampa.com

28

MAY 2011 / HCBA L AWYER

Continued from page 28 agreed to represent Preston and his men. They worried about the impact of their undertaking on their families, their careers, and even their lives, given the level of hostility the townspeople displayed toward the soldiers. The colony’s loyalist leadership reluctantly agreed to withdraw all British troops from Boston. A nervous calm prevailed while the town, expecting guilty verdicts, awaited the trials. They were to begin in May but were postponed to let tempers cool. Preston’s trial took place in September and the enlisted men’s in November.

MAY 2011 / HCBA L AWYER

No official record exists of Preston’s trial, but contemporary accounts show that Adams and Quincy adopted an effective and sophisticated trial strategy. They used their challenges to the venire to exclude all but two jurors from Boston and to seat five loyalists. The charge against Preston, that he had ordered the troops to fire on the civilians, was weak from the outset and grew weaker as the Crown presented its case. On crossexamination, Adams and Quincy picked apart the testimony of the adverse witnesses and Continued on page 30

29

Continued from page 29 then in argument carefully distinguished the harmful testimony to cast it in a light favorable to Preston. Even opposing counsel acknowledged that Adams’s final argument was brilliant. Preston was acquitted. The enlisted men’s trial in November posed a greater challenge for Adams and Quincy. Preston’s acquittal had left Boston with a greater appetite for vengeance, and the troops were the target. A record exists of this trial, so the effectiveness of the defense strategy becomes more apparent. They used their challenges to eliminate all Bostonians from the jury panel. Their defense was that the troops faced an increasingly violent mob, giving them no choice but to fire to protect themselves. The testimony of the prosecution’s witnesses had weaknesses that the two lawyers capitalized on to great advantage. Conversely, key defense witnesses were exceptionally strong, leaving little room for doubt about the mob’s violent intentions. In their arguments, Adams and Quincy sought to separate the jury from the immediate pressures they felt, with the town clamoring for murder convictions, and to emphasize their duty to administer justice fairly. Adams’ argument wove a fine line through the testimony of the witnesses, distinguishing that which Continued on page 31

30

MAY 2011 / HCBA L AWYER

Continued from page 30 was harmful and focusing on the contradictions. He characterized the mob as outsiders and troublemakers, not good townspeople. He eloquently emphasized to the jurors their duty to put aside all but what they saw and heard and to adhere to their duty to render justice in spite of the public sentiment. Only two of the soldiers were convicted and not of murder but of the lesser offense of manslaughter. They avoided potential death sentences by pleading benefit of clergy, a practice by which a prisoner convicted of a crime less than murder would be branded on his thumb. Initially Adams’ law practice suffered because of his defense of the soldiers, but eventually his reputation as a skilled lawyer and colony leader soared. In time, he considered his role in the case one of the finest services he ever performed for his country. He believed that conviction and execution of the soldiers would have been a miscarriage of justice and contrary to the principles of a democratic nation. Adams went on to be one of the most influential and prominent leaders in the Continental Congress, securing the adoption of the Declaration of Independence; serving as an envoy and ambassador to Europe; and becoming our first Vice-President under George Washington.

L OUISE F IELDS

Florida Supreme Court Certified Circuit Civil Mediator œ

Author: Michael Foster, Michael Foster, P.A.

Florida Supreme Court Certified Family Law Mediator œ

Qualified Arbitrator œ

Former Senior Assistant County Attorney Hillsborough County œ

Over 24 Years Legal Experience in General Civil Litigation

3225 South MacDill Avenue Suite 129-188 Tampa, FL 33629-8171 T: 813-313-9588 F: 813-831-6310 louise@louisefields.com www.louisefields.com

MAY 2011 / HCBA L AWYER

31

Cases in other states? If you need the resources of a national law firm, with coast-to-coast experience, then consider Wilkes & McHugh, P.A. With lawyers presently licensed in 25 states, we may have the financial and technical resources you need to successfully represent your clients — even those who are thousands of miles away. Wilkes & McHugh, P.A. has been handling serious injury, medical malpractice, nursing home abuse, wrongful death and trucking accident cases for over 25 years — and we’re still going strong! We are pleased to offer referral fees as permitted by the Florida Bar as well as appropriate state bars throughout the country.

Serious Injury. Wrongful Death. Trucking Accidents. Nursing Home Abuse & Neglect. 32

MAY 2011 / HCBA L AWYER

Wilkes & McHugh, P.A. has you covered. Lawyers licensed in 25 states. Coverage of more than 70% of the U.S. population. Offices in 7 states.

800.255.5070 www.wilkesmchugh.com Little Rock, AR | Los Angeles, CA | Memphis, TN | Lexington, KY Philadelphia, PA | Phoenix, AZ | Pittsburgh, PA | Tampa, FL

With lawyers licensed in 25 states.

MAY 2011 / HCBA L AWYER

33

feature THIRTEENTH JUDICIAL CIRCUIT PRESENTS

ProBono Service Awards

Barton

O

On April 13, 2011, a judge, law firm, two organizations, and ten attorneys were honored for their exceptional pro bono contributions at the fourth annual Pro Bono Service Awards Ceremony. Award nominations were submitted to the Thirteenth Judicial Circuit Pro Bono Committee, which is chaired by Circuit Judge Ashley B. Moody. The Awards Ceremony was sponsored by the Thirteenth Judicial Circuit Pro Bono Committee, Bay Area Legal Services Volunteer Lawyers Program (BAVLP), and the Hillsborough County Bar Association.

Byrd

Gallagher

34

Hillsborough County Bar Association’s Jimmy Kynes Pro Bono Service Award The Honorable James M. Barton, II, a Hillsborough County Circuit Court Judge, is known for both his distinguished legal career and his dedication to the availability of legal services to the poor. For more than two decades, Judge Barton has tirelessly worked to improve access to the legal system in Hillsborough County, and throughout Florida. Elected to the bench in 1991, Judge Barton was chosen in 1993 to lead the newly created Thirteenth Judicial Circuit Pro Bono Committee. Judge Barton enthusiastically and steadfastly led the Committee for 17 years, making it one of the most effective pro bono committees in Florida. Continued on page 35

MAY 2011 / HCBA L AWYER

Judge Barton

Continued from page 34

In 2009, the Florida Bar Foundation and the Florida Bar Standing Committee on Pro Bono steadfastly led the Legal Service launched the ONE Campaign to increase pro bono participation by every Florida Committee for 17 years, attorney. A member of the Standing Committee, Judge Barton traveled throughout the state making it one of the speaking to attorneys about the Campaign and inspiring them to participate in pro bono most effective pro bono services. In conjunction with the launch of the committees in Florida. ONE Campaign in this county, Judge Barton convinced the Hillsborough County Board of County Commissioners to pass a resolution declaring the last week of October in 2009 to be “Pro Bono Week.” Judge Barton was also instrumental in organizing the annual Thirteenth Judicial Circuit Pro Bono Service Awards Ceremony.

enthusiastically and

Outstanding Pro Bono Service by a Law Firm Carlton Fields, P.A. has a rich tradition of support for pro bono service. Local Carlton Fields attorneys who have long taken the lead in promoting pro bono service throughout the state and across the nation include William Reece Smith, Jr., Sylvia Walbolt, Gwynne Young, and Kathleen McLeroy. Currently, two of the firm’s lawyers, Leslie Schultz-Kin and Kevin McCoy, serve on the Bay Area Legal Services board, with Ms. Schultz-Kin as its president. Attorneys at the firm are encouraged to donate at least 50 hours per year of pro bono legal services. They handle pro bono matters in family, landlord-tenant, real property, and appellate law (including death row cases), and provide assistance to nonprofits. Carlton Fields attorneys provided pro bono representation in the recent landmark case involving adoptive parents in a same sex relationship, establishing that Florida courts Continued on page 36

MAY 2011 / HCBA L AWYER

Garcia

Julian

Lanigan

35

Continued from page 35 must honor valid same sex adoptions from other States. In 2010, attorneys and paralegals in Tampa contributed 4,446 hours of pro bono service.

McCulloch

Peaco*ck

Outstanding Pro Bono Service by an Organization Are You Safe, Inc. is an all-volunteer Hillsborough County nonprofit that provides pro bono legal services to victims of domestic violence. Volunteer attorneys assist petitioners during the injunctive process by reviewing petitions, and providing advice and representation in court. Dedicated to ensuring that every victim has a voice in court, Are You Safe’s attorneys (more than 25) have provided over 500 hours of pro bono service since 2009. The Tampa Bay Hispanic Bar Association (TBHBA) is a local volunteer bar association comprised of community members of Hispanic origin, and others who support its mission. Pro bono service is TBHBA’s top priority. It’s pro bono projects include recruiting volunteers to assist BAVLP’s Spanish speaking clients, collaborating with the BAVLP to develop and staff the Family Forms Clinic in Spanish (FFC en Español), and translating the instructions to all of the court approved family law forms into Spanish (42 packets of forms!). TBHBA obtained a grant to translate the instructions and members donated over 60 hours of pro bono service to complete the project. In 2010, TBHBA attorneys provided 91.5 hours of pro bono service at monthly FFC en Español clinics; and, individually, members provided countless pro bono hours to help eliminate barriers to justice. Continued on page 37

Roeper

36

Seagraves

MAY 2011 / HCBA L AWYER

Continued from page 36 Outstanding Pro Bono Service by a Lawyer O. Kim Byrd has been practicing for 21 years, currently with the Givens Law Group. His areas of practice include family law, estate planning, and criminal defense. He is president of the National LGBT Bar Association, and an attorney with the National Center for Lesbian Rights, and Lambda Legal. Since 2007, Mr. Byrd has donated 64 pro bono hours to the BAVLP Family Forms Clinic (FFC), in addition to his pro bono service through the BAVLP Case Referral Panel, Client Intake Clinic and Mentoring Project. J. David Gallagher has been practicing for 29 years, and is a partner with Gallagher Keenan, P.A. He is board certified in civil trial law. His practice areas include personal injury, malpractice, construction and commercial law, and business litigation. AV rated by Martindale-Hubbell, in 2008 he was named a Florida Super Lawyer. Since 1988, he has donated over 190 pro bono hours representing 14 BAVLP clients in the areas of auto negligence, contracts, warranties and other issues. Joanna Garcia is a shareholder with Carlton Fields, P.A., practicing with its Business Litigation & Trade Regulation and Real Property Litigation practice groups. A past president of the Tampa Bay Hispanic Bar Association (TBHBA), Ms. Garcia volunteers regularly for the BAVLP/TBHBA Family Forms Clinic en Español and the Center for Refugee and Immigrant Children. She initiated efforts to develop the FFC en Español and obtained funding to translate the court-approved family law forms and instructions into Spanish. Since 2008, she has donated over 300 pro bono hours to these projects.

Uliano

Sexton

Continued on page 38 Armstrong

May Zysk

WE’VE GOT YOU—AND YOUR CLIENTS—COVERED Storm Damage | Fire | Water Loss | Mold | Sinkhole Business Interruption | Life Insurance | Disability Insurance Over the years, attorneys have turned to Danahy & Murray for guidance with complex insurance claims, litigation and resulting bad faith cases. As experienced trial lawyers exclusively representing Florida policyholders, we are ready to assist you and your clients in the pursuit of justice. We are available for referrals and to serve as co-counsel, bringing our experience as policyholder advocates to your insurance related cases. When a valued client comes to you with a specialized insurance matter, consider us your partner.

901 W. Swann Avenue, Tampa, FL 33606 | 813.258.3600

DANAHYANDMURRAY.COM

MAY 2011 / HCBA L AWYER

37

Continued from page 37 James A. “Tony” Julian served as the attorney for the Navajo Nation Office of Prosecutor and as a deputy district attorney in Gallup and Santa Fe, NM. He was licensed in Florida in 1985 and is currently an assistant state attorney in Hillsborough County. Since 2004, Mr. Julian has donated 50 pro bono hours to the BAVLP Client Intake Clinic. David C. Lanigan, a sole practitioner licensed in Florida in 1981, holds a Master of Laws in Taxation. His practice includes estate planning, probate, income tax and business law/litigation matters. Since 1994, he has donated over 155 pro bono hours to assist 14 BAVLP clients with probate issues. Marian P. McCulloch, a managing partner with Allen Dell, P.A. is board certified in marital and family law, and is a certified family law mediator. Licensed in Florida in 1980, Ms. McCulloch was named one of the Top 50 Women Attorneys in Florida in 2010. Since 1991, she has handled more than 11 BAVLP cases, and contributed over 150 pro bono hours. Michael J. Peaco*ck is currently a partner in the Peaco*ck Law Firm and Administrative Counsel for the Hillsborough County Public Defender’s Office. Licensed in Florida in 1980, Mr. Peaco*ck’s practice includes class actions, civil litigation, and mediation. Since 2007, as a volunteer lawyer for the ACLU of Florida, he has represented over 22 young clients in Judicial By-Pass cases and trained other lawyers to handle these cases. He

has spent approximately 500 hours on pro bono representations. Jennifer G. Roeper is a shareholder in the Tampa office of Fowler White Boggs, P.A., practicing in the firm’s International and Immigration Practice Group. She is board certified in immigration and nationality law. Since 2004, Mr. Roeper has contributed 365 pro bono hours for matters including assisting a family defend a deportation, helping a terminally ill child’s Guatemalan grandmother obtain a visa for a U.S. visit, and many other significant immigration and asylum cases. Melissa D. Seagraves is a senior staff attorney with Heart of Florida Legal Aid Society in Polk County where she practices family law, focusing on victims of domestic violence. Since 2006, she has been a dedicated volunteer for the BAVLP Client Intake Clinic, donating 60 hours providing advice to clients on various legal matters. Amanda Uliano was licensed in Florida in 2003 and practices in the area of business law. She is also the CLE Director for the Hillsborough County Bar Association. Ms. Uliano was one of the first volunteers for the BAVLP Family Forms Clinic when it began in 2006, and has donated 54 hours of pro bono service to the project. She also assists individual clients through the BAVLP Case Referral Panel.

Continued on page 39

Chester H. Ferguson Law Center is the perfect place for your mediation, business meeting, wedding and reception, or holiday party. The 1 7, 000 sq. ft. building is extremely versatile and available for rental. Call for availability 813.221.7777

38

MAY 2011 / HCBA L AWYER

Continued from page 38 The 2011 Florida Bar Pro Bono Service Awards Each year, the Florida Bar and the Supreme Court of Florida recognize attorneys, judges, law firms and professional groups that have provided outstanding pro bono service. On January 27, 2011, the following were honored in Tallahassee: Hillsborough County Circuit Court Judge Susan G. Sexton was presented the statewide Distinguished Judicial Service Award for her contributions in establishing the Elder Justice Center and initiating a program for guardian advocacy. This award recognizes outstanding and sustained service to the public by a member of the judiciary, especially as it relates to support of pro bono legal services. Rachel May Zysk, an associate in the Tampa office of Carlton Fields, P.A., received the statewide Florida Bar Young Lawyers Division Pro Bono Service Award. Ms. Zysk is a member of the firm’s White Collar Crime and Government Investigations Practice Group. Since 2007, Ms. Zysk has contributed more than 850 pro bono hours representing criminal defendants, including an oral argument before the Eleventh Circuit, a two week trial in federal court, and representation of a death row inmate in post-conviction proceedings. Rosemary Armstrong received the Florida Bar President’s Pro Bono Service Award for the Thirteenth Judicial Circuit, an award she previously received in 1988. The 2011 award was presented in recognition of her more than 25 years of pro bono service, including more than 1000 hours assisting hundreds of people in need.

Author: Susan Steinberg Sandler, Pro Bono Manager, Bay Area Volunteer Lawyers Program, Bay Area Legal Services, Inc.

MAY 2011 / HCBA L AWYER

These attorneys also were recognized for pro bono service: Donation of 100 pro bono hours or more Rosemary Armstrong, Esq. Ryan Carey, Esq. Russell Buhite, Esq. Sarah Lahlou-Amine, Esq. A.J. Musial, Esq. Jo Ann Palchak, Esq.

Robert J. Scanlan, Esq. Leslie Reicin Stein, Esq. Stephen J. Szabo, Esq. Lara J. Tibbals, Esq. Rachel May Zysk, Esq.

Donation of 50 pro bono hours or more Danelle D. Barksdale, Esq. Robert Biasotti, Esq. O. Kim Byrd, Esq. Thomas Caufman, Esq. Jeanne Coleman, Esq. Kamala Corbett, Esq. L. Carina Cutter, Esq. Dionne Ferguson, Esq.

Steve Hurwitz, Esq. J. Derek Kantaskas, Esq. Kristin Kirkner, Esq. James McKee, Esq. William Muniz, Esq. Birdy Vanasupa, Esq. Jess J. Yado, III, Esq. Katherine Yanes, Esq.

Donation of 20 pro bono hours or more Jamel Aleem, Esq. Dale Appell, Esq. Natalie Baird, Esq. Richard Becker, Esq. Ronald Bidwell, Esq. Anita Brannon, Esq. Michael Broadus, Esq. Nancy Browder, Esq. Alex Caballero, Esq. Edward Campbell, Esq. Gayle Carlson, Esq. Dawn Chapman, Esq. Johnathan Comnes, Esq. Jennifer D’Angelo, Esq. Ronald Darrigo, Esq. Joseph Gardner Dato, Esq. Christine Derr, Esq. Fentrice D. Driskell, Esq. Migdalia Figueroa, Esq. Christophe Fiori, Esq. Michael Fluke, Esq. Jamie Gomez, Esq. Patricia Gomez, Esq. Lee Gunn, Esq. John Guyton III, Esq. Elizabeth Hapner, Esq. Shawn Harrison, Esq. Elizabeth Herd, Esq. Lisa Hoppe, Esq. Thomas Newcomb Hyde, Esq. Ann Joslin, Esq. William Jung, Esq. Victoria Knight, Esq.

Evan Langbein, Esq. Ryan Lopez, Esq. Marcela Lozano, Esq. Nancy Lugo, Esq. Kevin McCoy, Esq. Donald Mihokovich, Esq. Dennis Morgenstern, Esq. Kevin J. Napper, Esq. Edward J. Page, Esq. Eric Partlow, Esq. Rinky S. Parwani, Esq. Catherine Petrovich, Esq. Justin Pikramenos, Esq. Kimberly Potter, Esq. R. Marshall Rainey, Esq. Randall Reder, Esq. Christopher Roach, Esq. Clara Rokusek, Esq. Lawrence Samaha, Esq. William P. Schwarz, Esq. L. Joseph Shaheen, Jr., Esq. Brian Shrader, Esq. Debra Smietanski, Esq Jan Soeten, Esq. Gerald Stead, Esq. Richard Stein, Esq. Patrick W. Skelton, Esq. Adam S. Tanenbaum, Esq. Christina Taylor, Esq. Amanda Uliano, Esq. Miriam Velez Valkenburg, Esq. Alfred Villoch, III, Esq. Christian Zeller, Esq.

39

40

MAY 2011 / HCBA L AWYER

AGE DIVERSITY AND THE PRACTICE OF LAW Diversity Committee Chairs: Cynthia S. Oster, Hillsborough County Attorney’s Office and Deborah C. Blews, Hillsborough County Attorney’s Office

“L

ike other types of work place diversity—including gender, race, ethnicity and sexual orientation— age diversity presents unique challenges for organizations, and promises rewards to those that focus on the issue and develop creative strategies for managing it well.” Mary Carmel Kaczmarek, “Generational Diversity in the Legal Profession: Addressing the Challenges and Reaping the Rewards” (2007). There is a special dimension to incorporating age diversity into our profession. The fact is, no matter how good legal education can be, the legal profession is one with apprenticeship at its core. Our profession strongly relies on all generations engaging each other. Now, more than ever, legal employers need to go through a period of self-evaluation to determine to what extent they embrace age diversity as a goal. Law firms and legal employers re well served to have a diverse range of ages of lawyers and legal professionals. Below are three efforts by voluntary bar associations to foster age diversity in our profession:

ABA Business young lawyers. See Law Section http://www.flayld.org. Fellows An intergenerational Program conversation is necessary The program to our profession and is intended to is a medium by which increase “the all generations can participation of learn from each other young lawyers in in order to serve Section activities” clients effectively. because “the Our cost of attending HCBA Judicial Section meetings Shadowing Program profession combined with “This program is strongly a perceived lack about getting young of opportunity lawyers the benefit relies on all to be an active of direct interaction generations participant in with the judiciary in engaging the substantive a way that may not work of the be available early in a each other. Section have young lawyer’s career.” been identified Anthony “Nino” as major reasons Martino, HCBA Young why despite a number of outreach Lawyers Division Board of Directors. efforts the Section continues to All generations must be engaged have few young lawyers who in a conversation, and these are meaningful participants in programs are structured to ensure Section activities. “ See http:// lawyers at all levels can benefit apps.americanbar.org/buslaw/ from each other. “There is both committees/CL715000pub/ an art and a science to becoming fellows.shtml. In return, the a good lawyer.” Charles B. Wolf, Section expects young lawyers “The Foundation of a Good “to participate actively in the Lawyer,” Firm Leadership: Leading substantive work of the Section Lawyers on the Art and Science and to grow into future leadership of Managing a Law Firm (Aspatore positions within the Section.” Id. Books, 2003) I encourage you to take advantage of such age diverse The Florida Bar Young efforts in a quest to enhance the Lawyers Division profession as a According to its mission, the whole and to purpose of the Young Lawyers become the best Division is, among other things, lawyers we can be. “to serve as a medium for fostering Author: discussion and free interchange Jason Goitia, of ideas relative to the duties, The Goitia Law Firm responsibilities and problems” of

THE DIVERSITY COMMITTEE WELCOMES NEW MEMBERS - CALL 813-221-7777.

MAY 2011 / HCBA L AWYER

41

42

MAY 2011 / HCBA L AWYER

MAY 2011 / HCBA L AWYER

43

WILL RECENT CASE IMPEDE BROWNFIELD DEVELOPMENTS? Environmental and Land Use Section Chairs: Hugh Marthinsen, Saxon, Gilmore, Carraway & Gibbons, P.A.; Douglas Grant, Golder & Associates, Inc.

shley II of Charleston, LLC v. PCS Nitrogen, Inc., Civil Action No. 2:05-cv-2782-MBS, 2010 U.S. Dist. LEXIS 104772 (D.S.C. Sept. 30, 2010) involves a multiparty contaminated site. Part of the case addresses a brownfields developer’s attempt to establish the “bona fide prospective purchaser” (BFPP) defense to liability under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The court found that Ashley was not a BFPP. The legal and business communities are aware of the need to conduct “all appropriate inquiries” (AAI) before purchasing real property. One purpose of AAI, among others, is an attempt to establish the “innocent landowner” defense to CERCLA liability (other requirements also apply). That defense is not

A

available, elements in however, if detail, finding the purchaser that Ashley knows or has failed to meet reason to know three. The court of hazardous first concluded substance that Ashley did disposal on not prove that the property. no disposals In 2002 occurred on Congress passed the site after the Small Business its acquisition Liability Relief because Ashley’s A District of South and Brownfields demolition Revitalization Act, activities likely Carolina case appears which included caused disposals to be the first to the BFPP provision of hazardous interpret the bona fide to protect substances. purchasers of The court then prospective purchaser contaminated found that Ashley defense to liability property. (Note: did not exercise This article does appropriate care under CERCLA. not address state with regard or local laws to hazardous or other federal substances. For laws.) example, demolition procedures The BFPP defense to liability may have exacerbated site under CERCLA is found in 42 conditions by failing to address U.S.C. § 9607(r), while the BFPP “recognized environmental definition is in 42 U.S.C. § 9601(40). conditions” identified in the Phase The definition contains eight I reports, and other “housekeeping” elements, including AAI, and some failures indicated lack of have multiple parts. The person appropriate care. claiming BFPP status must Of most concern, however, is prove all eight elements by a the court’s finding that Ashley preponderance of the evidence. failed the requirement of no Ashley II of Charleston Continued on page 45 addressed each of the eight

YLD STATE COURT TRIAL JUNE 10, 2011 1:00 PM - 5:00 PM GEORGE E. EDGECOMB COURTHOUSE HAPPY HOUR FOLLOWS

44

MAY 2011 / HCBA L AWYER

WILL RECENT CASE IMPEDE BROWNFIELD DEVELOPMENTS?

Continued from page 44 affiliation with other potentially responsible parties (PRPs). Although Ashley had no direct or indirect familial relationships with other PRPs and was not the result of a reorganization of a PRP, the court seemed troubled by Ashley’s release and indemnification of several parties from environmental liability as part of the site purchase. The court noted Ashley’s attempt to persuade the Environmental Protection Agency (EPA) not to take enforcement action to recover for any harm at the site caused by the indemnified parties. The court stated that Ashley took the risk that the indemnified parties might be liable for response costs and said, “Ashley’s efforts to discourage EPA from recovering response costs covered by the indemnification reveals just the sort of affiliation Congress intended to discourage.” 2010 U.S. Dist. LEXIS 104772 at *16668. The case does not cite any legislative history concerning Congressional intent, however. While this case analyzes all the BFPP elements, the finding of affiliation through the indemnification and release is likely to be of most interest to those purchasing contaminated properties. Whether other courts will interpret indemnification and release as an affiliation remains to be seen. In the meantime, this case is instructive to those negotiating and documenting transactions. Author: Gayle B. Carlson, Gayle B. Carlson, P.A.

MAY 2011 / HCBA L AWYER

45

HEALTH CARE REFORM — LOVE IT OR NOT, IT’S HERE! PART TWO Health Care Law Section Chairs: Jessica Sara Cohen, Physicians Independent Management Services, Inc., and Yvette F. Rhodes, Fowler White Boggs, P.A.

Recent legislative activity has yielded amendment rather than reform.

fter massive public discourse, 2010’s health care reform remains the law of the land! In the last issue, a short primer on changes implemented from 2010 to 2012 was provided. In this article, the reform changes scheduled for 2013 through 2018 will be examined. In 2013, provisions intended to raise revenue for health reform are: • Medicare tax for high-Income earners increases 0.9% for earned income over $200,000 (individuals), $250,000 (families) • Medicare surtax of 3.8% for unearned income on highincome individuals; applied to Modified Adjusted Gross

A

Income (MAGI) over $200,000 (individuals) and $250,000 (families) • Flexible Spending Account contributions capped at $2,500 per participant • Limits deduction for executive compensation to $500,000 • Medical device manufacturers pay a 2.9% sales tax In 2014, the transition takes several large steps toward changing health care policies. • States mandated to operate “health care exchanges,” either alone or thru a nonprofit agency, must create a marketplace where consumers can price and acquire coverage. This creates competitive rates

for those who can’t afford or acquire coverage. Because they are self-employed or unemployed, they earn too little or have conditions that prevent them from employer provided coverage. • Plans must offer “essential benefits” (initially defined as emergency services, hospitalization, maternity, newborn care, mental health and substance abuse, prescription drug, preventative and wellness services, chronic disease management, pediatric, oral and vision care)

Continued on page 47

HCBA Labor & Employment Luncheon “Presenting Your Case for Mediation” was the topic for the Labor & Employment section luncheon with Mary Li Creasy, Esq. of Shumaker, Loop and Kendrick on February 16th.

46

MAY 2011 / HCBA L AWYER

HEALTH CARE REFORM — LOVE IT OR NOT, IT’S HERE! PART TWO

Continued from page 46 • Prohibition on annual limits or lifetime maximums on “essential benefits” • Individuals required to obtain “essential health coverage” or pay penalties • Employers with 50+ employees pay up to $2,000 per uncovered employee over a 30 count. • Health providers pay a portion of 8 billion fee • Employers report health care information on IRS returns (waiting periods, employee information, plan coverage, premiums and penalties) Finally, in 2018, those with high cost plans are taxed on the excess. The “Cadillac Tax” is a 40% nondeductible excise tax on plans with premium costs in excess of $10,200 for individual coverage and $27,500 for family coverage. Although attempts on the Hill are geared toward repeal (even if only symbolic), rather than amendment of the law, recent statements by the President’s administration have shown an intent to compromise on important facets of the law. On February 28th, President Obama indicated he would sign legislation giving states the power to opt out of the mandated insurance/exchange requirements if the state(s) can prove their option provides insurance to previously uninsured that is as comprehensive and affordable as the current law without increasing the federal deficit. In addition, a bi-partisan Congress repealed the requirement that employers file a 1099 for each business they pay more than $600. The two Acts comprising health care reform are meant to overhaul the health care system. These articles give just snippets of information. Hopefully they will assist in understanding changes coming to domestic health care or help participation in lively dinner party conversation!

Author: Barbara L. Sanchez-Salazar, Fowler White Boggs P.A.

MAY 2011 / HCBA L AWYER

47

MISAPPROPRIATION OF “IDEA”: ANOTHER HURDLE FOR PLAINTIFFS Intellectual Property Section Chairs: Richard G. Salazar, Fowler White Boggs P.A., and James Matulis, Conwell & Kirkpatrick, P.A.

lorida law recognizes a cause of action for “misappropriation of idea.” The key elements are: 1. The “idea” must have been novel; 2. The “idea” must have been disclosed to the recipient in confidence; and 3. The recipient must have adopted and used the “idea.” E.g., Official Airlines Schedule Information Service, Inc. v. Eastern AirLines, Inc.1; Jaggen v. Rebel Rock Entertainment, Inc.2; Alevizos v. The John D and Catherine T. MacArthur Foundation3; All Pro Sports Camp, Inc. v. Walt Disney Co.4; Garrido v. Burger King Corp.5 Decisions from other states hold that the claimed “owner” of a novel idea, by his gratuitous and

F

unilateral act of disclosure, may not impose upon the recipient a confidential relationship. Keane v. Fox Television Stations, Inc.6 But, under at least one Florida appellate decision, a confidential relationship may be inferred from the relationship of the parties and the testimony of the claimed “owner,” All Pro Sports Camp, Inc., supra; this view of confidentiality is consistent with the rule in “trade secrets” misappropriation cases that the “existence of a confidential relationship ... gives rise to an implied obligation not to use or

If the owner of an “idea” discloses it without a written agreement that governs use or disclosure of the “idea” by the recipient, the owner may be out of luck and may not be able to maintain an action for misappropriation of the “idea.”

disclose,” Dotolo v. Schouten,7 and Florida law recognizes “implied confidential relationships.” Bateman v. Mnemonics, Inc.8 Although the Florida common law continues to recognize that the existence of a confidential relationship, such as that between an employer and an employee, gives rise to an implied obligation not to use or disclose a “trade secret” without authorization of the owner of that secret, current Florida statutory law is much Continued on page 49

HCBA Intellectual Propert y Luncheon Members gathered for the Intellectual Property CLE on March 16th.

48

MAY 2011 / HCBA L AWYER

MISAPPROPRIATION OF “IDEA”: ANOTHER HURDLE FOR PLAINTIFFS Intellectual Property Section

Continued from page 48 more strict in the case of non-trade secret information. In 2006, the Florida Legislature enacted Section 501.972, Fla. Stat.: §501.972. Actions based upon use of a creation that is not protected under federal copyright law (1) Except as provided in subsection (2), the use of an idea, procedure, process, system, method of operation, concept, principle, discovery, thought, or other creation that is not a work of authorship protected under federal copyright law does not give rise to a claim or cause of action, in law or in equity, unless the parties to the claim or cause of action have executed a writing sufficient to indicate that a contract has been made between them governing such use. (2) Subsection (1) does not affect or limit: (a) Any cause of action based in copyright, trademark, patent, or

trace secret; or (b) Any defense raised in connection with a cause of action described in paragraph (a). That section in effect provides that, for an “idea, procedure, process, system, method of operation, concept, principle, discovery, thought, or other creation” to be protectable, its purported “owner” must disclose it pursuant to a written agreement signed by the recipient of the information in question unless: 1. The information is a “work of authorship protected under federal copyright law; or 2. The misappropriation of that information gives rise to a “cause of action based in copyright, trademark, patent, or trade secret.” Put simply, then, the purported owner of an “idea, procedure, process, system, method of operation, concept, principle, discovery, thought, or other creation” must: A. Have a written confidentiality or nonuse/non-disclosure agreement signed by the

recipient of that information; or B. Have a claim or “cause of action based in copyright, trademark, patent, or trade secret” against the recipient of that information. Otherwise, the recipient’s unauthorized use or disclosure of that information creates no cause of action on behalf of the purported “owner” of that information against the recipient. 1

333 F.2d 672 (5th Cir. 1974). 2010 U.S. Dist. LEXIS 90685 (M.D. Fla. Aug. 31, 2010). 3 764 So.2d 8 (Fla. 4th DCA 1999). 4 727 So.2d 363 (Fla. 5th DCA 1999). 5 558 So.2d 79 (Fla. 3d DCA 1990). 6 297 F.Supp. 2d 921 (S.D. Tex. 2004). 7 426 So.2d 1013, 1015 (Fla. 2d DCA 1983). 8 79 F.3d 1532, 1550 (11th Cir. 1996). 2

Authors: Thomas T. Steele and Zachary G. Oseland, Steele Law Group, P.A.

HCBA Senior Council Luncheon Right: E.J. Salcines and Richard Woltmann

Judge E.J. Salcines provided “A Brief History of Ybor City” for the Senior Council attendees on March 15th.

MAY 2011 / HCBA L AWYER

49

KAAA-BOOM!: KAAA CASE RESOLVES CONFLICT BUT CREATES QUESTIONS Marital and Family Law Section Chair: Joseph D. Hunt, Harris and Hunt, P.A.

he Florida Supreme Court recently issued an important opinion n Kaaa v. Kaaa, Fla. L. Weekly (Fla. Sept. 30, 2010), deciding that passive appreciation of non-marital real property should be treated as a marital asset subject to equitable distribution where marital funds reduced the mortgage note on the property and the non-owner spouse made contributions that enhanced the value of the property. Id. The First and Second District Courts of Appeal were in conflict on this issue, with the Second District holding in Kaaa, 9 So. 3d 756 (Fla. 2d DCA 2009), that such passive appreciation is a nonmarital asset, while the First District held in Stevens v. Stevens, 651 So. 2d 1306 (Fla. 1st DCA 1995), that such passive appreciation is a marital asset. The Supreme Court approved the First District’s decision in Stevens and quashed the Second District’s ruling in Kaaa. When does the holding in Kaaa apply? First, the Court must find passive appreciation of a non-marital property during the marriage. Second, marital funds must have been used to reduce the mortgage note on the property. Third, the non-owner spouse must have contributed funds or labor to the property which enhanced its value.

T

50

How will of fact: “… that the trial court marital funds were calculate the used to pay the marital portion mortgage and of the passive that the non-owner appreciation? spouse made To calculate contributions the marital to the property.” asset subject (Emphasis added) to equitable But see the last distribution, sentence of the Passive appreciation the amount of paragraph entitled encumbrance “Stevens” where of non-marital real should be divided contributions were property should by the value of defined as: “… the asset at contributions need be treated as the time of the not be strictly a marital asset … marriage, which monetary and may fraction should include marital where marital then be applied funds or the efforts funds reduced the to the passive of either party.” mortgage…and appreciation, (Emphasis added) less the unpaid 2) Can the the non-owner mortgage balance. “contributions” spouse made The Court provided in addition to the an example: mortgage reduction contributions that “If...one party be satisfied by enhanced the value. brings to the either spouse marriage an rather than the asset in which non-owner spouse? he or she has an equity of fifty (See (1) above.) For example, in percent, the other half of which Kaaa, marital funds paid for a is financed by marital funds, home addition. Does this qualify half the appreciated value at the as the non-owner’s contribution? time the petition for dissolution (3) If marital funds pay a was filed...should be included as mortgage but the non-marital a marital asset... reduced by the property decreases unpaid indebtedness marital in value, would funds were used to service.” Id. that depreciation be a marital Questions Created by Kaaa: liability? The (1) Are both or either forms opinion is silent of marital contribution by the on this issue. non-owner spouse, i.e., funds and/or labor, required for passive appreciation of a non-marital Authors: property to be considered marital? Nancy Hutcheson See paragraph in the opinion entitled Harris & Katherine “Determining an Award of Passive C. Scott, Harris Appreciation” requiring findings & Hunt, P.A.

MAY 2011 / HCBA L AWYER

MAY 2011 / HCBA L AWYER

51

COURT CERTIFIES QUESTION ON ARBITRATION WAIVER PROVISION Mediation and Arbitration Section Chairs: Louise B. Fields, Louise B. Fields, LLC; and George E. Nader, Trenam Kemker Scharf Barkin Frye O’Neill & Mullis, P.A.

n Florida, there is certainly a policy favoring the enforcement of arbitration agreements.1 However, in a recent case, Florida’s Fourth District Court of Appeal found that a class action waiver in an arbitration agreement violated public policy and upheld the denial of a motion to compel arbitration.2 This case is significant because the Fourth District Court of Appeal had previously upheld the validity of a similar arbitration clause’s class action waiver in a class action lawsuit which, like the recent case, was based upon Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA).3 The difference in the recent case was that counsel for the members of the class had produced testimony at the trial court level that showed they could not find competent counsel to represent them on an individual small claim basis. By presenting the testimony, the plaintiffs were able to establish an argument that the arbitration clause class action waiver provision was contrary to public policy because the inability to find competent counsel to bring a class action lawsuit “would eviscerate

I

provision will the remedial have upon the purposes of the claims of the relied upon parties against [FDUTPA] statute.” whom the motion This was in direct to compel contravention to arbitration is the finding in the directed. The prior case with case also reminds regard to the us of the reality same statute. of all litigation: In addition, no matter how sure the Court found we may be about that the provision “…when attempting whether the law also was invalid to determine the is on our side or because it would the side of our potentially prevent validity of an opponent, the facts a claimant arbitration of each particular from joining a case are of great “government agreement, it significance in initiated is important to how we present enforcement our facts and how action, thus look beyond the a more complete eviscerating a language of record can potent enforcement the agreement…” change the law— mechanism put especially with in place by the regard to public Legislature to policy issues. deter deceptive 4 or unfair trade practices.” The 1 Seifert v U.S. Home Corp., 750 So. Court also provided an extensive 2d 633 (Fla. 1999). review of the law on class action 2 McKenzie, et. al. v. Betts, ____ So. waivers and ultimately certified a 3d ____ , 36 Fla. Law Weekly D241, question to the Florida Supreme Nos. 4DO8-493 and 4DO8-494 (Fla. Court to determine whether class 4th DCA February 2, 2011). action waivers in cases involving 3 See Fonte v. AT&T Wireless a claim based upon a remedial Services, Inc., 903 So. 2d 1019 (Fla. statute violate public policy. We 4th DCA 2005) can presume that there is more 4 McKenzie at p. 6. to come on this issue. When attempting to determine Author: the validity of an arbitration Mike Peaco*ck, agreement, it is important to Office of the Public look beyond the language of the Defender, 13th agreement and any included waiver Judicial Circuit provisions to the effect that the

HOST YOUR NEXT MEDIATION AT THE CHESTER H. FERGUSON LAW CENTER CALL 813-221-777.

52

MAY 2011 / HCBA L AWYER

Hillsborough County Bar Association 100 Club Law firms with 100% membership in the HCBA 12th Judicial Circuit 13th Judicial Circuit Court 13th Judicial Circuit Court Plant City 2nd District Court of Appeal Lakeland Addison & Howard, P.A. Allen Dell, P.A. Alley Clark Greiwe Almerico & Mooney Alvarez Garcia Ansa Assuncao, LLP Anthony & Partners, LLC Anthony J. LaSpada P.A. Austin, Ley, Roe & Patsko, P.A. Baccarella & Baccarella, P.A. BajoCuva Banker Lopez Gassler, P.A. Barker, Rodems & Cook, P.A. Barnett, Bolt, Kirkwood, Long and McBride, P.A. Bavol Judge, P.A. Bay Area Legal Services Plant City Bay Area Legal Services Wimauma Beltz and Ruth Bivins & Hemenway, P.A. Boire & DePippo, P.L. Bradford & Bradford Brannock & Humphries, P.A. Brennan, Holden & Kavouklis, P.A. Attorneys at Law Broad and Cassel Buell & Elligett, P.A. Bush Ross Butler Pappas Weihmuller Katz Craig, LLP Caglianone, Miller & Anthony, P.A. Carey, O’Malley, Whitaker & Mueller, P.A. Carlton Fields, P.A. Carman & Corn, P.A. Caveda Law Firm, P.A. Cedola and Vincent P.L. Cheeseman & Phillips, P.A. Christopher N. Ligori, P.A. City of Tampa Clark & Martino, P.A. Clerk of the Circuit Court’s Office Cordell & Cordell, P.C. County Attorney’s Office Cristal Law Group Cruser Mitchell Nicholas & Bell, LLP Danahy & Murray, P.A. Davidson McWhirter, P.A. de la Parte & Gilbert, P.A. Dennen, Ragano, PPLC Dennis LeVine & Associates, P.A. District Court of Appeal Donica Law Firm, P.A. Dorman & Gutman, P.L. Escobar, Ramirez and Associates Fernandez & Hernandez, LLC

Fiol & Gomez, P.A. Fisher and Frommer Fisher Law Group Florida Default Law Group, P.L. Fuentes & Kreischer, P.A. Fuller Holsonback & Malloy, P.A. Gallagher Keenan, P.A. Gardner Brewer Martinez Monfort, P.A. Gatlin & Birch, P.A. Gaylord Merlin Ludovici Diaz & Bain Genders u Alvarez, P.A. George & Titus, P.A. Gibbons, Tucker, Miller, Whatley, & Stein, P.A. Givens Law Group Glenn Rasmussen Fogarty & Hooker, P.A. Guemmer & Ritt Gunn Law Group Hanco*ck & Hanco*ck, P.A. Harmon, Woods, Parker, Hendricks & Abrunzo, P.A. Harris and Hunt, P.A. Hillsborough County Sheriff’s Office Hill Ward Henderson Himes & Hearn, P.A. Hines Norman Hines, P.L. Holcomb & Mayts, P.L. Hunter Law Group James, Hoyer, Newcomer & Smiljanich, P.A. Jayne M. Lambert P.A. Jayson, Farthing, Skafidas & Wright, P.A. Jeanne T. Tate, P.A. Johnson, Pope, Bokor, Ruppel & Burns, LLP Jorgensen & Ozyjowski, P.A. Joryn Jenkins & Associates Jung & Sisco, P.A. Kadyk Delesie & Espat P.A. Cap Trust Keith P. Ligori, P.A. Keys & Coakley, P.L. Knopik Deskins Law Group Kunkel, Miller & Hament, P.A. Kynes, Markman & Felman, P.A. Lauro Law Firm Law Office of Donald P. Decort, P.A. Law Office of Kevin M. Gilhool Law Office of Patricia Gomez, P.A. Law Office of Robert M. Geller Law Offices of Butler & Boyd, P.A. Law Offices of Darrin T. Mish, P.A. Law Offices of Emma Hemness, P.A. Law Offices of Jacob I. Reiber Leon & Berg, P.A. Levine, Hirsch, Segall, Mackenzie & Friedsam, P.A. Lopez, Kelly & Bible, P.A. Luks, Santaniello, Perez, Petrillo & Gold Lynette Silon-Laguna, P.A. Mac A. Greco, Jr., P.A.

Manson Law Group, P.A. Mark Bentley, P.A. Marlowe McNabb, P.A. Martinez, Odom Law Group Mary Beth Corn, P.A. McCumber, Daniels, Buntz, Hartig & Puig, P.A. Michael P. Maddux, P.A. Mike Murburg, P.A. Morgenstern & Herd, P.A. Older, Lundy & Weisman, Attorneys at Law Phillip A. Baumann, P.A. Pitisci, Dowell, Markowitz & Murphy ReliaQuest Legal Services Resnick & Serrano, P.A. Richard W. Driscoll, P.A. Rieth & Ritchie, P.A. Saady & Saxe, P.A. Scarritt Law Group, P.A. Schiff Law Group Schropp Law Firm Sessions Fishman Nathan & Israel, LLP Shook, Hardy & Bacon, LLP Sisco Law Sparkman & Sparkman, P.A. Spector Gadon & Rosen Stetson University College of Law Stone & Walder, P.L. Straley & Robin Sykes Enterprises, Inc. Terrana Perez & Salgado, P.A. The Bowes Law Group The Criminal Defense Group, P.A. The Davis Law Group, P.A. The Diecidue Law Firm, P.A. The Fernandez Firm The Foster Law Group, P.A. The Plante Law Group, PLC The Thorpe Law Firm, P.A. The Yerrid Law Firm Thomas & LoCicero Thompson & Brooks Thompson, Sizemore, Gonzalez & Hearing, P.A. Thorn Whittington, LLP Thorn | Lawrence, P.L. Timothy G. Anderson, P.A Tison Law Group Trentalange & Kelley, P.A. Trombley & Hanes, P.A. U.S. District Court United States Bankruptcy Court Wagner, Vaughan & McLaughlin Walters Levine Klingensmith & Thomison, P.A. Walton Lantaff Schroeder & Carson LLP Weekley | Schulte | Valdes, L.L.C. Wenzel, Fenton, Cabassa, P.A. Whitney Bardi Mediation Group, Inc. Wilson Law Group, P.A. Williams Schifino Mangione & Steady P.A.

FOR YOUR FIRM TO BE LISTED HERE, CONTACT DAWN McCONNELL, [emailprotected]

MAY 2011 / HCBA L AWYER

53

WHEN TO FILE A FORM DR-430 Real Property Probate & Trust Section Chairs: Rena J. Upshaw-Frazier, Quarles & Brady LLP and Jordan G. Lee, Shutts & Bowen, LLP

n 2008, Florida passed a law requiring notification to the county property appraiser of any change in control or ownership of real property that is assessed for ad valorem taxes. This change is significant because it authorizes property appraisers to reassess the value of real property if a change of ownership or control occurs within a legal entity that owns real property regardless of whether title to the property changes hands. Section 193.1556(1), Florida Statutes, provides in relevant part: Any person or entity that owns property assessed under s. 193.1554 or s. 193.1555 must notify the property appraiser promptly of any change of ownership or control as defined in ss. 193.1554(5) and 193.1555(5). The definition of “change of ownership or control” that appears in Sections 193.1554(5) and 193.1555(5) reads as follows: “…any sale, foreclosure, transfer of legal title or beneficial title in equity to any person, or the cumulative transfer of control of more than 50 percent of the ownership of the legal entity that owned the property when it was most recently assessed at just value[.]”

I

By way of For a publicly example, if a traded company, limited liability the cumulative company that transfer of more owns real property than 50 percent in Florida transfers of the ownership more than 50% of the entity that of its membership owns the property interests or there occurs through the is a change in buying and selling managing member of shares of the or other controlling company on a The 2010 person, a “change public exchange. of ownership This exception amendment or control” does not apply to provides for a further has occurred. a transfer made To effectuate through a merger exception relating notification, the with or acquisition to publicly traded Florida Department by another companies. of Revenue company, including published Form an acquisition DR-430, which is by acquiring available on the outstanding shares Florida Department of Revenue of the company. website. When a change in If Section 193.1556 is not ownership or control occurs complied with, the penalties (other than by deed or other are severe. The property appraiser recorded instrument), a completed has 10 years to look back and Form DR-430 should be sent to the determine whether property property appraiser in the county was improperly reassessed. The where the real property is located. property owner may be subject In 2010, Florida’s Legislature to the taxes avoided plus 15% enacted an important amendment interest each year and a penalty to Sections 193.1554(5) and of 50% of the taxes avoided. In 193.1555(5). Previously, there addition, the property appraiser was no change in ownership if: may record a notice of tax lien (i) transfer of title was to correct on the property of anyone an error; (ii) transfer was between claiming the limitation cap legal and equitable title; or (iii) without qualifying. transfer was between husband and wife, including a transfer to a surviving spouse or due to Author: a dissolution of marriage. The Lauren 2010 amendment provides for Goldberg Raines, a further exception relating to Quarles publicly traded companies. There & Brady LLP is no change of ownership if:

MEET YOUR COLLEAGUES AT THE RPPTL SECTION EVENTS! 54

MAY 2011 / HCBA L AWYER

HILLSBOROUGH COUNTY BAR ASSOCIATION BENEFIT PROVIDERS Listed below are companies that have agreed to participate as a HCBA Benefit Provider. They offer all HCBA members a special discount or value added service especially for you, an HCBA member.

n AFFINISCAPE A Law Firm Merchant Account through our benefit provider enables your practice to accept credit cards in a professional manner and in compliance with trust accounting procedures. Why turn away potential clients simply because they can not pay a retainer in advance? Go to http://hillsbar.affiniscape.com for more information. n THE BANK OF TAMPA With assets in excess of $975 million, The Bank of Tampa is the largest independently owned bank in Hillsborough County. More than 450 Hillsborough County law firms rely on The Bank of Tampa for their banking and financial services needs. We understand the distinctive needs of legal professionals and have been using our special knowledge and expertise to help attorneys and their practices succeed for more than 25 years. The Bank of Tampa has been the designated financial services benefit provider for the Hillsborough County Bar Association since 2005. For HCBA members, The Bank of Tampa offers a free personal checking account with no minimum monthly balance requirement and no monthly maintenance fee; free standard checks; no foreign ATM fees; no additional surcharge fees incurred at over 1,000 Publix Presto! ATMs; free Visa Check Card with special higher daily spending and withdrawal limits; Free Personal Online Banking and free CheckFree® Web electronic bill payment service at www.bankoftampa.com, and other HCBA member-only benefits. For more information, contact Jeff Armstrong at (813) 998-2733.

n DIGITAL LEGAL Digital Legal uses the latest technology to provide electronic discovery and litigation support services. Our consultants can help your firm identify, preserve, collect, process, review, produce and present electronic evidence. We also create load files for evidence review tools like Summation and Concordance and offer technical assistance with these applications. Our traditional document services include imaging, OCR, coding, copying, & high speed printing. Bar members are entitled to one free hour of technology and project management consulting - a $150 value. Contact Jud Parker, [emailprotected], 813.222.1322.

n FREEDMAN’S OFFICE SUPPLIES On the 10th (if the 10th falls on a Saturday or Sunday the discount would be honored on the Friday before) of every month, Freedman’s offers 10% off your entire order: anything out of its supply catalog (over 30,000 items). Freedman’s provides a free price analysis specific to your account, a free usage report (every three months). Freedman’s will look at all of your buying habits to see if there is opportunity to save you money and provide each account with a local Sales Representative and a local Customer Service Representative. Each account has a personal driver. Your driver will place your product in the desired area. Freedman’s also provides home-made cookies baked daily just to say thank you for being a Freedman’s Customer. Contact: Tracey Bastic, [emailprotected] or 813-882-0032.

n GUARDIAN LIFE INSURANCE COMPANY The Nation’s Premier Individual Disability Income Policy for Attorneys is now available to HCBA Members… with an exclusive 10% permanent discount! Long recognized as the nation’s premier disability income protection plan for attorneys, The Guardian Individual Disability plan leads the industry with its “true own occupation” definition of disability, high benefit limits and other forward thinking features that will ensure your peace of mind now and as your practice grows. To learn more, contact Jeffrey D. Brown, Program Coordinator, at the Guardian’s West Central Florida agency (813) 289-8500.

MAY 2011 / HCBA L AWYER

n JOHN BOYER, INC. offers HCBA members a permanent 15% reduction in asset management fees and will waive the initial financial planning fee for new clients. John Boyer, Inc. is an independently owned fee-based Registered Investment Advisor. The firm’s mission is to simplify its clients’ lives by getting their financial house in order. It offers a full range of personalized financial services, from retirement, estate and tax planning to investment management, asset protection and wealth preservation. Principal John Boyer, who established the firm in 1995, is a Certified Financial Planner with over 20 years of experience. Contact Terrell Boone, Wealth Advisor at 813-254-9500 or [emailprotected].

n LNS TECHNOLOGIES is a leader in IT & Network Systems infrastructure services and solutions. Since 1994, LNS has consistently provided our legal clients with the latest technology and support tools allowing their businesses to operate efficiently. LNS Technologies’ scalable, IT solutions and services increase productivity, reduce costs, and optimize asset utilization to derive maximum value from your IT investment. All HCBA members receive a FREE computer and network system health check upon request. Please contact Sales at (813) 221-1315, or email your request or requirement to : [emailprotected]. Visit our website at: http://www.LNStech.com. n SALTMARSH, CLEAVELAND & GUND Saltmarsh, Cleaveland & Gund is now a HCBA Benefit Provider! Saltmarsh offers HCBA members a 10% discount off standard hourly rates on all Litigation Support and Business Valuation Services. Founded in 1944, Saltmarsh is a large regional full-service accounting and consulting firm, which has developed a special niche in providing services to attorneys and law firms. www.saltmarshcpa.com *Regulated by the State of Florida. Contact Lee Bell (813) 287-1111.

n THOMPSON STUDIOS We are proud to offer you an excellent photography resource for all law firms and individual photos. Thompson Studios is an all-digital, world-class photography studio. In studio or on location, we will capture all your photographic visions... and we guarantee you’ll have fun doing it. Thompson Studios will come to your office for firm photos and headshots for your convenience. As a HCBA member, we offer you $100 off your location photo session. Keep us in mind for holiday and special occasion photos as well. Please contact Kim at Thompson Studios at 813-994-2000.

n Trial Consulting Services, LLC (TCS) provides wide-ranging services and solutions to support every aspect of your case. Our services include exhibit boards, trial graphics, animation, medical illustrations, electronic trial presentation, video depositions, DVT, mock trials, CLE seminars and more. Our expert team is experienced in all practice areas of law. Visit our website at www.trialcs.com for a complete listing of services and testimonials. All HCBA members receive a 10% discount on all trial research including mock trials.

n YTB TRAVEL SERVICES Book your travel where it makes a difference! Visit the Hillsborough County Bar Association travel website at: www.ytbtravel.com/hillsbar • You’ll find the same airlines, hotels, rental cars, cruises and more. • You’ll get deeply discounted travel prices! • Each time you book travel, a portion of the travel commissions will go to HCBA! It’s that simple! www.ytbtravel.com/hillsbar. Use this website for all your travel needs as well as sending flowers and gift baskets and purchasing concert and event tickets.

55

HOW TO INCREASE YOUR WEB SITE’S ROI Solo/Small Firm Practitioner Section Chair: Anthony Fantauzzi, The Fantauzzi Law Firm, and Anthony J. Garcia, The Trial Lawyers of Alvarez Garcia, Inc.

s long as firms have marketed online, most have focused primarily on maximizing the number of visitors to their web site and converting as much of that traffic into clients as possible. The assumption is that more traffic and higher conversion rates lead directly to more clients and more success. This isn’t necessarily accurate. The key to building an effective web presence — one that grows your practice and leads to long term success — is first to understand who is actually visiting your site. Generally visitors can be broken down into two categories: qualified and unqualified. Qualified visitors are those who are specifically looking for you or your firm, usually by name. Unqualified visitors are those who are looking for, well, almost anything else. Most firms, web developers and search engine experts focus on attracting as much traffic as possible, which means they end up with mostly “unqualified” traffic. Most visitors attracted through these techniques have no need for an attorney, no interest in hiring an attorney, or are poor prospects who have been turned down by multiple firms. Higher traffic may make your website seem more effective, but it often actually represents a

A

56

drain on your message. time, effort Reporters (from and money. both traditional We believe and new media that to lay the outlets) will groundwork for visit to learn long-term more about success you what motivates must first your actions get the most and gauge your value out of your suitability as qualified traffic. a source for a In the short story. Insurance term, the most adjusters, “Why relationships valuable opposing counsel, and reputation, qualified visitors judges and jurors not search engine to your site are may scrutinize potential clients how you present optimization or with a bona fide yourself to try pay-per-click need for legal and determine advice who have your character campaigns, are already been to and the character the keys to your office, been of the clients given your name you represent. online success.” by a trusted Each of these source or been qualified visitors influenced by has a different one of your reason for branding efforts in the community. wanting to learn more about your These visitors are highly motivated firm, and each can be a valuable and don’t need to be sold with part of your firm’s success and bold statements, fancy video contribute to your good reputation. introductions and large calls to Presenting only one message action. They already have a good designed to capture only a tiny impression of your brand. They fraction of your audience — those believe that you are professionally who have never heard of you but competent, connected to your might need legal services — clients and concerned about your not only trivializes all the other community. Instead of being redifferent kinds of visitors to your sold, they only need to be site, it also very likely alienates reassured that what they already the ones who might otherwise know about your firm is true. be willing to hire or recommend Potential clients are also just your firm. a portion of the qualified visitors who will come to your site. Referral sources — your Author: professional networks, current Tom Young, Law and former clients, friends and Office of Thomas contacts in the community — L. Young, P.A. will also be exposed to your firm’s

MAY 2011 / HCBA L AWYER

June 2011

MAY 2011 / HCBA L AWYER

57

ISSUE-SPOTTING FOR NON-PROFITS, PART 2 Tax Law Section Chairs: V. Jean Owens, Owens Law Group, P.A., and Justin J. Klatsky, Owens Law Group, P.A.

any attorneys and judges serve our community by working with §501(c)(3) organizations. Last month, we reviewed Florida’s requirement that many charities register with the Florida Department of Agriculture and Consumer Services, the IRS reporting requirements applicable to §501(c)(3) organizations, and director indemnification provisions in the organization’s bylaws. In this Part 2, we will review the rules applicable to §501(c)(3) charities on prohibited activities, public disclosure requirements, and unrelated business taxable income.

M

Prohibited Activities There are several prohibited activities that will result in the loss of a §501(c)(3) organization’s tax-exempt status, including:

• Providing a • Devoting a substantial substantial benefit to the part of the private interests organization’s of an individual activities to or organization, lobbying, or i.e., the encouraging organization’s members of the beneficiaries organization to must be contact their recognized legislators about objects of charity, a particular such as the poor issue; however, By being prepared or distressed, or the organization the community may conduct to spot these issues, at large; voter registration we can better serve • Having a drives and nonpurpose or partisan voter our community by participating in education protecting charities activities that activities, are illegal including from inadvertently or violate presenting running afoul of fundamental public forums the requirements public policy; and publishing and voter education facing tax-exempt • Failing to file guides; organizations. a tax return for • Participating, three consecutive intervening in, years. or contributing to a political Disclosure Requirements campaign supporting (or §501(c)(3) organizations must opposing) a candidate for make certain records available for public office; public inspection, including their • Allowing net earnings to inure to the private benefit of insiders of the organization; Continued on page 59

HCBA Marit al & Family Law Luncheon Marital & Family Law section chair Joe Hunt introduced Judge Rodney May and Sheila Norman at the “Understanding Bankruptcy Issues” CLE on March 17th.

58

Thank you to our sponsor:

MAY 2011 / HCBA L AWYER

ISSUE-SPOTTING FOR NON-PROFITS, PART 2 Tax Law Section

Continued from page 58 tax-exemption application, tax-exempt determination letter, and their last three annual tax returns. The organization must provide copies of these documents to individuals who request them, immediately in the case of in-person requests, or within 30 days in the case of written requests. Organizations may make these documents available on their website to avoid the requirement to supply copies of the documents, but they are still required to make the documents available for public inspection. Unrelated Business Taxable Income (UBTI) UBTI is income from a trade or business, regularly carried on, that

is not substantially related to the charitable, educational, or other purpose that is the basis for the organization’s exemption. Exempt organizations may produce income unrelated to their tax-exempt purpose, as long as the incomeproducing activities are not a substantial part of the organization’s activities. Generally, rents from real property, capital gains, interest and dividends are not considered UBTI unless they are financed with borrowed money. Whether income is UBTI depends on the facts and circ*mstances, but examples of UBTI include income from advertising in publications and from the sale of merchandise

unrelated to the organization’s exempt purpose. An organization with more than $1,000 of annual gross UBTI must file Form 990-T in addition to the Form 990. Income that is UBTI is subject to standard income tax rates. ******* By being prepared to spot these issues, we can better serve our community by protecting charities from inadvertently running afoul of the requirements facing tax-exempt organizations. Author: Katie Everlove-Stone, Akerman Senterfitt

HCBA Service t o Soldiers More than 70 attorneys attended the launch of The Thomas M. Cooley Law School expansion of its Service to Soldiers: Legal Assistance Referral Program on February 17th. A “Basic Training” session sponsored by the Hillsborough County Bar Association covered some of the basics of representing military clients, including estate planning, family law, the Servicemembers Civil Relief Act (SCRA), and the Uniformed Services Employment and Re-employment Rights Act (USERRA). The Service to Soldiers program offers referrals to appropriate local, pro bono attorneys who assist members of the military in resolving legal issues. Speakers included (top photo from left to right) Colonel John Odom; John Nussbaumer, associate dean and Cooley The session was led by Brigadier General Michael McDaniel professor; Heather Spielmaker, director of the Center for and Colonel John Odom. Ethics, Service and Professionalism at Cooley; Amy Timmer, associate dean of students and professionalism and professor at Cooley; Brigadier General Michael McDaniel; and, Lt. Colonel George McHugh.

MAY 2011 / HCBA L AWYER

59

NEW CIVIL JURY INSTRUCTIONS IMPROVE ORGANIZATION AND CLARITY Trial & Litigation Section Chair: Ronald P. Hanes, Trombley & Hanes, P.A.

how the judge will instruct the jury. Other sections address oaths, preliminary matters, evidence, model instructions, and verdict forms.

ast issues of this magazine have examined the new standard civil jury instructions approved by the Florida Supreme Court. This article in the series offers practitioners a brief explanation of how to use the new civil jury instruction book.

P

Find the Right Instruction Before creating a set of instructions, practitioners should obtain the most current version available at www.floridasupreme court.org/civ_jury_instructions/index. shtml. The Florida Supreme Court has not expressed an opinion as to the correctness of the instructions, so it is critical to verify that instructions used reflect the current state of the law. Parties may challenge the legal accuracy of an instruction and may propose alternative instructions to the Court. The Book’s Organization The new instruction book is more intuitive than past versions. Substantive instructions are now grouped by cause of action and are listed by subject matter in the table of contents and by name in the index. The book comprises four primary sections: substantive instructions; damages instructions; substantive instructions-general; and closing instructions. The sequence reflects

60

Court with a complete and correct set of proposed instructions. The judge must “state on the record or in a separate order the manner in which . . . the standard form [is] erroneous or inadequate and the legal basis of that finding.” The Court may also add or delete minor, non-substantive words to improve an instruction’s clarity.

Preparing a Set of Instructions Follow the format and sequence of the standard instructions. The new instructions Consult the are the first model instructions. Always refer to significant revision instructions by to the standard number for ease and consistency civil jury instructions of reference. since their original Signals The judge is The standard responsible for publication in 1967. instructions selecting and They are designed include signals giving appropriate for ease of use to aid the parties final instructions and the Court. to the jury. and, ultimately, Boldface text The Court to improve juror should be read must provide the aloud by the instructions to communication and judge. [Bracketed each juror in understanding. text] denotes writing, ideally alternative words before the judge to be read aloud. reads the (Parentheses) tell instructions aloud. the reader to insert a proper name, Fla. R. Civ. P. 1.470(b). element, or other variable. Italicized The instructions addressed instructions are for use by the in the book apply to causes of judge only. action that arise frequently. At ******* times, practitioners will need to The new instructions are the modify the standard instructions first significant revision to the substantively. Florida Rule of Civil standard civil jury instructions since Procedure Form 1.985 gives the their original publication in 1967. judge authority to change the They are designed for ease of use standard instructions when “an and, ultimately, to improve juror applicable form of instruction is erroneous or inadequate.” In that event, the parties must provide the Continued on page 61

MAY 2011 / HCBA L AWYER

NEW CIVIL JURY INSTRUCTIONS

JURY TRIAL INFORMATION

Continued from page 60 communication and understanding. For additional guidance, consult the “How to Use this Book” section in the instructions. To contact the Supreme Court Standard Jury Instructions Committee (Civil) with comments or suggestions, e-mail sjicivil@ flcourts.org.

Authors: Brad Kimbro and Paul McDermott, Holland & Knight LLP &REE0RESS#OLOR!DPDF

MAY 2011 / HCBA L AWYER

For The Month of: December 2010. Judge: Richard A. Nielsen. Parties: Park Place Condo vs. State Farm. Attorneys: For Plaintiff: Peter Cardillo; For Defendant: Theodore Corless. Nature of Case: Termite collapse claim under Plaintiff’s property insurance. Verdict: Settled $1.1 million. For The Month of: December 2010. Judge: Hon. James M. Barton, II. Parties: Constance R. Ramos & James Ramos vs. Emory Alan Rowe & Gulf Coast Transportation, Inc. Attorneys: For Plaintiff:J. Daniel Clark, Esq.; For Defendant: K. Stuart Goldberg, Esq. Nature of Case: Plaintiff struck by 0-

Defendants cab driver, suffered non-displaced Tibia Fracture. Verdict: For plaintiff, $713,391.58, before PIP set off and 10% comparative fault reduction. For The Month of: April 2011. Judge: Honorable Bernard Silver. Parties: Kristen Depew vs. Casualty Insurance Co. Attorneys: For Plaintiff: Weslev Straw & Matt Emerson; For Defendant: Brandon Scheele & Michael Bird. Nature of Case: Plaintiff struck by car while crossing the street outside the crosswalk. Plaintiff suffered a broken back, injured neck and left knee. Verdict: $27,900 for Plaintiff after 90% comparative negligence applied.

61

AROUND THE ASSOCIATION

Tracey K. Jaensch of Ford & Harrison LLP, was recognized by the National Diversity Council as one of Florida’s “Most Powerful Women” at the 2nd Annual Florida Diversity & Leadership Conference. Kunkel Miller & Hament is pleased to announce th at Lydia N. Brassington has joined the firm in the Tampa office as an associate. Kim Byrd of Givens Law Group was elected President of the National LGBT (Lesbian, Gay, Bisexual and Transgender) Bar Association during its annual board meeting in Atlanta, GA. Bob Rasmussen, a founding shareholder and Managing Director of Glenn Rasmussen Fogarty & Hooker, P.A., has been elected Vice Chair of Lowry Park Zoological Society of Tampa and appointed to the Audit Committee, Executive Committee, and Nominating and Governance Committee of the Board of Trustees. Luis Viera of Ogden, Sullivan & O’Connor, P.A. in Tampa was elected President of the Lawyers for Autism Awareness Foundation and Jorge Santeiro of Kubicki Draper was elected Vice President of the Lawyers for Autism Awareness Foundation.

James E. Felman of the law firm of Kynes, Markman & Felman, P.A., is the recipient of a 2011 American Bar Association Grassroots Advocacy Award. The Law Firm of Barr, Murman & Tonelli, P.A. announces that Paula W. Rousselle has joined the firm as a Partner. Ms. Rousselle will continue to practice in all areas of casualty defense including medical malpractice, automobile, product liability, premises liability, bad faith and general insurance litigation.

Circuit Court Judge Gregory P. Holder has been presented with the 2010/2011 Running Shoe Award by the Gasparilla Distance Classic Association in recognition of his 23 years of participation in, and service to, its annual running events. Holland & Knight is pleased to announce that Tampa Partner Leonard H. Gilbert is the 2011 recipient of the Distinguished Service Award, the highest honor awarded by the American College of Bankruptcy.

The law firm of Shumaker, Loop & Kendrick, LLP is pleased to announce that Julio C. Esquivel, Partner in the Tampa office, has been named to the Board of Directors of Tampa Theatre Foundation.

Wiand Guerra King is pleased to announce the addition to the firm of Jared Perez. Mr. Perez concentrates his practice on general commercial litigation with a focus on financial services and securities matters.

The law firm of Marshall, Dennehey, Warner, Coleman & Goggin is pleased to announce that Russell S. Buhite, shareholder, and Kathleen S. Massing, associate, have joined the firm’s Professional Liability Department.

Bay Area Legal Services is pleased to announce the officers of its Board of Directors for 2011: President, Leslie Schultz-Kin of Carlton Fields; President-Elect, Luis A. Cabassa of Wenzel Fenton Cabassa; Secretary, Cerese Taylor of the Florida Attorney General’s Office; and Treasurer, John A. Guyton, III of Rywant, Alvarez, Jones, Russo & Guyton.

The 2012 U.S. News & World Report has again ranked Stetson University College of Law the top law school in the nation for trial advocacy and number three for legal writing.

M EMBERS : S END

US YOUR UPDATES !

EXPEDITE YOUR ENTRY t ot he 13TH JUDICIAL COURTHOUSE Get your Court Access Card from HCBA. The access card application is available on the HCBA website at www.hillsbar.com

62

MAY 2011 / HCBA L AWYER

CLASSIFIED ADVERTISING

OFFICE SPACE available to share, downtown Tampa, walking distance to courthouses. On site garage parking. Total shared space 960 square feet, includes reception, conference room, storage room, and secretarial area, plus good sized lawyer office with large window. Existing furniture can be purchased for very reasonable amount, or bring your own. Monthly rent (includes all utilities) $620.60. Copier, internet, and phone service available to share for additional cost, or set up your own. Please contact Diane Zuckerman at 813-846-6195.

HISTORIC HYDE PARK EXECUTIVE OFFICE SUITE 215 Verne Street. One 1800 sq. ft and 3600. sq. ft., both newly renovated, great parking and 5 min. to downtown. $14 sq. ft. plus electric. 689-6405 or 242-2065. LAW OFFICE SHARING Small and medium sized offices available in Tampa within a 2,100 sq. ft. office located in the Bank of Tampa Building on Bayshore Blvd., utilities included. Potential for overflow work and use of legal assistant. If interested,

please contact Rory Weiner at [emailprotected] or 813-681-3300.

Classified Advertising Available. Contact Dawn McConnell [emailprotected] or 813-221-7777.

ADVERTISER INDEX

Bank of Tampa (Hicks) ....................................Back Cover

John Boyer Inc. ..............................................................34

Broad & Cassel ................................................................8

Louise Fields ..................................................................31

Buell & Elligett, P.A. ......................................................28

Marshall Dennehey Warner Coleman & Goggin..........29

Cappy Law Firm ............................................................31

Paul Sidney Elliott ..........................................................35

Central Florida Mediation Group..................................47

Perzel & Lara Forensic CPA’s ........................................22

Charles W. Ross, P.A. ......................................................11

Ringler Associates ........................................................45

Clark & Martino ............................................................42

Robert H. Bonanno ..........................................................4

Dalan & Katz, P.L. ..........................................................14

Robert M. Geller & Associates......................................30

Danahy & Murray ..........................................................37

Sabal Trust Company ....................................................19

Didier Law Firm ..................................Inside Back Cover

The Yerrid Law Firm......................................................25

Digital Legal ..................................................................36

Thompson Studios ..........................................................51

Fifth Third Bank ............................................................40

Trial Consulting Services ..............................................64

Free Press Publishing Company, Inc. ..........................61

W.H. Simon & Company, P.A. ..........................................9

Gunn Law Group ................................Inside Front Cover

Wilkes & McHugh ....................................................32-33

Guy Spicola ......................................................................5

Williams Schifino Mangione & Steady P.A...................43

Hinshaw & Culbertson LLP ..........................................13

Woody Isom....................................................................30

James Hoyer Newcomb & Smiljawich ........................23

MAY 2011 / HCBA L AWYER

63

64

MAY 2011 / HCBA L AWYER

THE HILLSBOROUGH COUNTY BAR ASSOCIATION

PRSRT STD U.S. POSTAGE PAID TAMPA FL PERMIT 590

Lawyer Chester H. Ferguson Law Center 1610 N. Tampa Street Tampa, FL 33602

Attorney David Rieth with The Bank of Tampa’s President Bill West and Senior Trust Officer Mary Mitchell.

µ7aeWbQVSRb]BVS0O\Y]TBO[^O 4=@7BA

AB@3

[PDF] L aw yer THE HILLSBOROUGH COUNT Y BAR ASSOCIATION TAMPA, FLORIDA MAY 2011 VOL. 21, NO. 6 - Free Download PDF (2024)
Top Articles
Latest Posts
Article information

Author: Eusebia Nader

Last Updated:

Views: 5636

Rating: 5 / 5 (60 voted)

Reviews: 83% of readers found this page helpful

Author information

Name: Eusebia Nader

Birthday: 1994-11-11

Address: Apt. 721 977 Ebert Meadows, Jereville, GA 73618-6603

Phone: +2316203969400

Job: International Farming Consultant

Hobby: Reading, Photography, Shooting, Singing, Magic, Kayaking, Mushroom hunting

Introduction: My name is Eusebia Nader, I am a encouraging, brainy, lively, nice, famous, healthy, clever person who loves writing and wants to share my knowledge and understanding with you.