1 THE DADE COUNTY BAR ASSOCIATION IN THIS ISSUE: Breaking New Ground: Stand Your Ground in Personal Injury Cases Page 2 Please Allow me to Introduce the YLS Board of Directors Page 3 30th Annual View From the Bench Seminar Page 4 U.S. Supreme Court Upholds Florida Judicial Fundraising Rule Page 5 A Century of Service to Miami-Dade County Dade Legal Aid Page 6 Programs and Services That Proposals for Settlement The Constitutional Corner Help You GROW Your Practice, Page 7 GAIN Experience & GIVE Back BULLETIN PRESIDENT S MESSAGE Jason M. Murray We must strive toward the goal of making sure that our bar association is inclusive of lawyers with disabilities. More than twenty-five years ago on July 26, 1990, our nation committed itself to eliminating discrimination against people with disabilities through the enactment of the Americans with Disabilities Act ( ADA ). The enactment of the ADA represented a historical milestone in America s commitment to equal opportunity for all of its citizens and reflected a deeply held American ideal that individuals can make extraordinary contributions when they are free from unjust, arbitrary or outmoded societal attitudes and practices that prevent the realization of their potential. The ADA and the ADA Amendments Act of 2008 ( ADAAA ) provide civil rights protections to individuals with disabilities similar to the protections provided to individuals on the basis of race, color, sex, national origin, age, and religion. The ADA and ADAAA also assure equal opportunity for individuals with disabilities for access to businesses, employment, transportation, government programs and services, and telecommunications. Last year, the Florida Supreme Court requested that every voluntary bar association in the state develop and implement a protocol for bar-related activities to ensure compliance with all ADA and access requirements. In addition, the Court requested that all voluntary bar associations take immediate action to implement such structural changes as may be necessary to assign ADA compliance to an individual within each local bar. Under Leslie Smith s leadership, the Dade County Bar Association ( DCBA ) complied with the Florida Supreme Court s request by developing and implementing protocols for bar-related activities to ensure compliance with all ADA and access requirements. In addition, the DCBA has partnered with the Disability Independence Group, Inc. ( DIG ) to create policies and programs to facilitate inclusion of lawyers with disabilities so that our association will be fully welcoming to lawyers with disabilities. Picking up the mantle from Leslie Smith, Herman Russomanno, III AUGUST 2015 continued the DCBA s diversity and inclusion efforts in the area of breaking down barriers for the participation of lawyers with disabilities. Under Russomanno s leadership, the DCBA, DIG and the Miami-Dade chapter of the Florida Association for Women Lawyers ( Miami-Dade FAWL ) co-hosted a Call to Action Diversity Summit focused on the inclusion of persons with disabilities in bar-related activities. The summit, which took place on November 7, 2014, provided bar leaders with valuable tools to promote inclusion and educated voluntary bar associations on how to develop best practices to ensure that persons with disabilities can participate in bar events. The summit was the first of its kind and marked an important step towards advancing the inclusion of persons with disabilities in bar-related events. In recognition of this ground breaking collaborative effort, The Florida Bar recently awarded the DCBA with the Diversity Leadership Grant Outstanding Program Award during the weekend celebration of the 25th Anniversary of the ADA. The DCBA and Miami-Dade FAWL received this recognition for being leaders among Florida s voluntary bar associations in the inclusion efforts of the disability community. Let us continue the work of making sure that our events and services are accessible to lawyers with disabilities. However, we must not stop there. We must strive toward the goal of making sure that our bar association is inclusive of lawyers with disabilities. If you are interested in working towards a future in which all the bar associations doors are open to equality of opportunity and full participation for persons with disabilities, please join the newly formed DCBA standing committee on Diversity and Inclusion that will be chaired this year by Anthony N. Upshaw. I look forward to working with each of you in our ongoing efforts to make our bar association more welcoming to all members of our diverse legal community.
2 DADE COUNTY BAR ASSOCIATION Board of Directors OFFICERS JASON M. MURRAY, President* JEFFREY A. RYNOR, President-Elect* JORDAN A. DRESNICK, Vice President* STEPHANIE L. CARMAN, Secretary* GILBERT K. SQUIRES, Treasurer* MATTHEW J. RIDGELY, Executive Director JOHNNIE M. RIDGELY, Executive Director ( ) GROUP ONE NATALIE RICO CAITLIN M. TROWBRIDGE DANIEL F. BENAVIDES RASHAD M. COLLINS FRANCESCA CORALLO GROUP TWO ELIZABETH FERRY EFFIE D. SILVA JACQUELINE C. LEDON JANE W. MUIR GERI SATIN YOLANDA P. STRADER GROUP THREE JEFF P. CYNAMON ERIC A. HERNANDEZ SUZETTE L. RUSSOMANNO VIVIANA P. VARELA ADILIA C. HEDGES DOLLY HERNANDEZ GROUP FOUR DAVID ALSCHULER GREGORY P. SREENAN DAVID BONHAM JERRY D. HAMILTON JOHN P. MURRAY LAURA K. WENDELL GROUP FIVE GLENN B. KRITZER JACQUELYN P. NEEDELMAN LEONARD ELIAS RICHARD C. MILSTEIN FLORA SEFF ANTONIO MARTINEZ, JR. STEVEN P. BEFERA ABA Delegate DADE COUNTY BAR ASSOCIATION YOUNG LAYWERS SECTION BOARD OF DIRECTORS OFFICERS Joshua L. Wintle, President Stuart J. Weissman, President-Elect Daryl A. Greenberg, Secretary Lacey D. Hofmeyer, Treasurer DIRECTORS Eric Bluestein Zachariah R.F. Evangelista Stephanie Grosman Liam J. McGivern Scott J. Merl Isabella M. Poschl Ronnell D. Robinzine DIRECTORS Kristen A. Corpion Gregory S. d Incelli Jenna L. Fischman Zakarij N. Laux Joshua A. Marcus Rachel Mitchell Fagenson Eric Tinstman The Bulletin Committee Caitlin Trowbridge, Co-Chair Mihai Vrasmasu, Co-Chair 123 NW First Avenue #214 Miami, Florida Ex Officio Sookie Williams Breaking New Ground: Stand Your Ground in Personal Injury Cases BY ZACHARY BODENHEIMER Approximately two years ago, there existed a raging national debate focused on the policies and consequences of the controversial Stand Your Ground laws. Specifically, Florida s version of the law was thrust into the spotlight when it was alleged to be a crucial issue in the defense of George Zimmerman after he shot and killed 17-year-old Trayvon Martin. Although the public discourse surrounding Florida s law has somewhat subsided, there have been important developments with the law of which practitioners, both civil and criminal, should take note. One of these developments occurred recently in a case decided by the Third District Court of Appeal. On December 4, 2008, an employee of a roofing company was at work when he claimed that his employer attacked him. The allegation was that the employer grabbed a baseball bat and began to strike the employee repeatedly in an office. As a result of the incident, the employer was arrested, and on January 14, 2009, the State of Florida filed an Information charging the employer with one count of aggravated battery with a deadly weapon. While the criminal case was pending, the employee filed a civil action against the employer. The Complaint contained counts for assault, battery, negligence, and intentional infliction of emotional distress, along with vicarious liability counts against the roofing company. In the criminal case, the employer filed a motion to dismiss based on the statutory immunity provisions contained in Florida Statutes Chapter 776, better known as the Stand Your Ground law. The employer claimed that he was immune from criminal prosecution because his actions were taken as a direct response to threatening and erratic behavior from the employee. The criminal court conducted an evidentiary hearing where the employer testified in his defense, and the employee testified on behalf of the State of Florida. Ultimately, the criminal court determined that the employer was justified in his use of force and dismissed the criminal case against the employer. The employer attempted to use the criminal court s finding to prevent further litigation in the civil case. The employer filed a motion to dismiss, and argued that the criminal court s finding should be dispositive in the civil case. The trial court denied the motion and the employer appealed. On appeal, the employer argued that the common law doctrines of res judicata and collateral estoppel required the finding of immunity in the criminal case to automatically apply in As Florida s Stand Your Ground law continues to be a critical issue in cases involving selfdefense, practitioners need to be aware of the implications surrounding the interplay between parallel pending criminal and civil cases. the civil case. The Third District Court of Appeal disagreed. In Professional Roofing and Sales, Inc. v. Flemmings, 138 So. 3d 524 (Fla. 3d DCA 2014), the Court pointed out that one essential element was missing in both the doctrines of res judicata and collateral estoppel for those doctrines to apply, and that element was identity of parties. As the Court explained, the State of Florida, not [the employee], was the opposing party to the [employer] in the criminal prosecution. Id. at 527. The Court further explained that if the legislature had intended to abrogate the mutuality of parties requirement when it enacted Chapter 776, it would have explicitly stated as it has in other statutes such as or Ultimately, the Court determined that Florida s Stand Your Ground Law includes no language evidencing an intent by the legislature that a criminal court s determination that a person s use of force was justified, making him or her immune from criminal prosecution, is determinative on this issue in a civil action brought by a non-party to the criminal proceeding. Id. at 529. Practical Considerations So what does this decision mean in cases where there are parallel civil and criminal prosecutions? The most obvious conclusion is that a finding of immunity in the criminal case does not preclude a civil action. More importantly, a finding of immunity should not discourage pursuing parallel meritorious civil actions. The reality is that in a criminal case the prosecution is not given the opportunity to conduct any pre-hearing discovery directly with a defendant. There are no depositions of the defendant, no interrogatories, and no requests for production. When a defendant takes the stand at a criminal immunity hearing based on Stand Your Ground, it is likely the first time the prosecution is hearing the facts and details of the defense. However, in a civil case there are not the same concerns. An attorney has the opportunity to take a deposition and to investigate the facts more thoroughly. In fact, upon remand of the Flemmings case to the trial court, a second evidentiary hearing was conducted to determine if the employer was immune from civil suit. The attorneys on behalf of the employee had the opportunity to conduct depositions and other written discovery regarding the employer s defense. The motion was denied. As Florida s Stand Your Ground law continues to be a critical issue in cases involving self-defense, practitioners need to be aware of the implications surrounding the interplay between parallel pending criminal and civil cases. Attorneys with pending civil actions should not be dissuaded from further litigation when a motion for immunity in a criminal case is granted. Instead, they should utilize the discovery tools not available in a criminal case to continue to fight for their client. Zachary Bodenheimer is an attorney at Goldberg & Rosen, P.A. specializing in Plaintiff s personal injury and wrongful death litigation. Mr. Bodenheimer can be reached at GoldbergandRosen.com or by calling (305) DCBA BULLETIN AUGUST 2015
3 Please Allow Me to Introduce the YLS Board of Directors BY JOSH WINTLE One of my great pleasures and most important responsibilities is to connect YLS leadership with our members and to facilitate our members connections with each other. To that end, I would like to introduce our Officers and Board of Directors. These are the young lawyers who make our educational, social and pro bono projects happen. I hope you will take a moment to get better acquainted with us. I would also like to invite you to our first event for the term. On Thursday, September 3, 2015, the YLS will hold a Committee Open House at Burger & Beer in Mary Brickell Village. More information and a registration will follow by in the coming weeks. Please mark your calendars and make a plan to join us to both meet our Board and learn about what each of our committees does. Stuart J. Weissman (President-Elect), partner at Ratzan Law Group, devotes his practice to the representation of individuals and families of individuals who have suffered catastrophic and life altering injuries and death. In doing so, Stuart strives not simply to improve his clients lives, but also to make the community safer. Stuart s cases have been recognized by the Daily Business Review, and he has been selected to the Super Lawyers Florida Rising Stars, National Trial Lawyers Top 40 under 40, Cystic Fibrosis Top 40 under 40 lawyer, and the Million and Multi-Million Dollar Advocates Forum. Daryl A. Greenberg (Secretary), of Greenberg Law, LLC, is an aggressive and energetic attorney practicing complex civil and criminal litigation in both state and federal court. Daryl specializes in preparing multi-party cases involving voluminous discovery for trial. She has worked with Howard Srebnick, Scott Srebnick and Joel Hirschhorn among others, successfully representing clients charged with racketeering, healthcare fraud, Foreign Bank Account Reporting (FBAR) violations, Sherman Antitrust bidrigging violations, and money laundering. Lacey Hofmeyer (Treasurer) is a recently-promoted shareholder at Greenberg Traurig, where she practices product liability defense, commercial, real estate, and employment litigation. Lacey is a Leadership Miami graduate, and is participating in Class III of the Florida Bar Leadership Academy. She serves also a Guardian Ad Litem. Eric Bluestein of the Law Offices of Eric Bluestein, P.A., focuses on representing individuals who have been injured by the actions of others (car collisions, slip/trip and fall incidents, people injured by the negligence of doctors, nurses and nursing home personnel), commercial litigation, and business litigation. Eric also handles negligent security cases, defamation claims, class actions and qui tam litigation. Kristen A. Corpion is a trial attorney at Ver Ploeg & Lumpkin, P.A., where she represents clients whose insurance providers have delayed or denied claims, failed to defend them against lawsuits, or acted in bad faith. Kristen dedicates her time to serving the South Florida community through her involvement in various local organizations. She was awarded the 2015 Rookie of the Year Award by the Greater Miami Chamber of Commerce s HYPE Committee. Gregory d Incelli is a civil litigator at Weinberg Wheeler Hudgins Gunn & Dial where he practices primarily product liability, premises liability, wrongful death and personal injury defense. In addition to his service for the YLS, Gregory is on the Florida Bar Grievance Committee for the 11th Circuit. He has been recognized as a rising star by both Florida Legal Elite and Super Lawyers for several years running. Zachariah Evangelista is an associate at Ser & Associates, where he provides legal counsel to entrepreneurs and small businesses throughout South Florida. Zachariah graduate from Florida International University in 2011 with honors. Rachael Mitchell Fagenson is an associate at Foreman Friedman, P.A. where she handles a wide variety of maritime claims, including claims involving personal injury and wrongful death, sexual assault, products liability, and medical negligence, in state and federal court, as well as in arbitration proceedings. Her practice primarily focuses on the representation of cruise lines, vessel owners, cargo lines, tour operators and other entities in the hospitality, shipping and tourism industries. Jenna Fischman went to Northwestern University and UF Law. She practices commercial litigation and corporate transactional law at the Fischman Law Firm. Stephanie Grosman has been with Dade Legal Aid since 2006, where she practices Family Law. Stephanie volunteers as a pro bono Guardian Ad Litem, and mentors volunteer attorneys through the Put Something Back Pro Bono Project. Stephanie is a member of the Inaugural Class of the Dade Legal Aid Leadership Academy and is directly involved in planning the Battle of the Bands and the Patently Impossible Project. Zakarij Laux is an associate at Tabas, Freedman & Soloff where he represents lenders in complex foreclosure actions. He also regularly represents bankruptcy trustees in all aspects of individual and corporate Chapter 7 cases. Zak graduated from the University of Miami School of Law in 2011 where he was a member of the moot court board and an articles and comments editor for the Inter- American Law Review. Liam McGivern is a Staff Attorney in the public benefits unit of Legal Services of Greater Miami, Inc. He specializes in issues facing homeless and low-income former members of the Armed Forces. A graduate of the University of Miami School of Law, Liam began practicing law in Scott J. Merl is the owner and founder of Scott Merl, P.A, which focuses on Personal Injury, Defective and Dangerous Products, Civil Litigation, Medical Malpractice, Family Law, Bankruptcy, and occasionally Small Claims. Scott graduated from the University of Miami School of Law in A Miami native, Scott did his undergraduate work at the University of Florida with a double major in Political Science, cum laude and Business Administration General Studies with a specialization in Education. Isabella Poschl is a 2009 graduate of Vanderbilt and 2013 graduate of St. Thomas University School of Law. She currently works at Saleh and Associates where she practices immigration law. Ronnell Robinzine is an associate at Akerman LLP, where he focuses his practice on representing clients in a wide array of real estate transactions, including the acquisition, disposition, and financing of commercial real estate. Ronnell recently accepted an invitation to join The National Black Lawyers Top 100 in He is also a member of the Wilkie D. Ferguson, Jr. Bar Association. Eric Tinstman is a plaintiffs trial attorney at the Ferraro Law Firm, where he practices in the areas of products liability, toxic torts, tobacco litigation, defective drugs, personal injury, commercial litigation, and medical malpractice. Mr. Tinstman, a graduate of the University of Miami School of Law, was named a 2015 Rising Star in Super Lawyers Magazine in the Plaintiff Personal Injury Products Liability category. Josh Wintle represents plaintiffs in personal injury and medical negligence matters at Panter, Panter & Sampedro, P.A. Mr. Wintle can be reached at 3
4 30th Annual View From the Bench Seminar This year marked the thirtieth anniversary of the View From The Bench Family Law Seminar, one of the first and most successful pro bono recruitment and training family law seminars. The seminar was the brainchild of Gerald Kornreich, of Kornreich and Associates, and Sharon Langer, Dade Legal Aid, and was started over thirty years ago to recruit and train pro bono attorneys and GAL s for the Legal Aid Society. This year was the largest seminar ever, with an overflow courtroom to accommodate all of the attendees. Pictured here are the judges of the Eleventh Judicial Circuit Family Division and Gerald Kornreich. It is my privilege and pleasure to present this seminar year after year to train new attorneys to take on these important cases, said Kornreich. I hope to be able to continue to do this for 30 more years! General Magistrate Robert Jones and Cynthia Greene also received special service awards presented at the 30th Annual View From The Bench for their distinguished service to the Bench and Bar for many years. Each year, Jones and Greene add a scholarly touch to the fantastic line-up of speakers and topics. Their contributions are especially timely with all of the changes and updates to the laws. These awards were presented by the Eleventh Judicial Circuit Family Division for contributing to the success of the View from the Bench. Gerald Kornreich, Chair, View from Bench. Here is General Magistrate Jones with Honorable Scott Bernstein, Administrative Judge of the Family Division and Honorable Bertila Soto, Chief Judge, Eleventh Judicial Circuit and Cynthia Greene receiving her award Pearson GAL winner Diane Trainor First Row: Associate Administrative Judge Sanford Blake, Judge Pedro P. Echarte, Chief Judge Bertila Soto, General Magistrate Margaret Rosenbaum, Judge Valerie R. Manno Schurr, Judge Abbey Cynamon, Administrative Judge Scott M. Bernstein, General Magistrate Robert Jones, Judge Marcia B. Caballero, Judge Daryl E. Trawick, General Magistrate Robert S. Singer, General Magistrate Melissa Tenenbaum, and Gerald Kornreich. Second Row: General Magistrate Yadira Pedraza, General Magistrate Murray, General Magistrate Deborah Magid, General Magistrate Karl Brown, and Administrative General Magistrate Carlos Fernandez. Administrative Judge Scott M. Bernstein 4 DCBA BULLETIN AUGUST 2015 General Magistrate Robert Jones Judge Valerie Manno Schurr Cynthia Greene
5 U.S. Supreme Court Upholds Florida Judicial Fundraising Rule BY ADAM R. VAUGHT AND ANDREA K. HOLDER In September 2009, Florida attorney Lanell Williams-Yulee decided to run for County Judge. She sent a letter announcing her candidacy to local voters and posted it on her campaign website. In that letter, she asked people to make [a]n early contribution of $25, $50, $100, $250, or $500, made payable to Lanell Williams- Yulee Campaign for County Judge. This seemingly innocuous request set in motion events that resulted in the United States Supreme Court this April holding that state ethical codes of conduct baring judges and judicial candidates from personally soliciting money do not violate the First Amendment. In Williams-Yulee v. the Florida Bar (2015), the Court held that Canon 7C(1) of Florida s Code of Judicial Conduct is the rare law that survives strict scrutiny. Canon 7C(1) states as follows: A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate s campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law. Code of Judicial Conduct for the State of Florida 38 (2014). Ms. Williams-Yulee s letter violated this rule because, in it, she personally solicited campaign contributions. The main purpose of Canon 7C(1) is to prevent sitting judges from personally asking people for money. The driving force behind the enactment of this rule is that it would be hard for lawyers, litigants, or the public to refuse a judge s request for monetary campaign support. Further, the situation suggests impropriety, as it would appear that donors were buying the judge s favor through campaign contributions. While the letter was not a direct, in-person solicitation, it was a personal request that violated Canon 7C(1). Lawyers running for judge are required to follow the judicial canons. So, the Florida Bar filed a complaint against Ms. Williams-Yulee, alleging that her actions during the campaign violated the rules regulating the Florida Bar. The Florida Supreme Court then appointed a referee who recommended a finding of guilt. The referee recommended a reprimand and payment of costs of $1,860. Ms. Williams-Yulee appealed and claimed that The Florida Bar rule prohibiting a candidate from personal solicitation of funds violated the First Amendment. The Florida Supreme Court adopted the recommendation and rejected her First Amendment challenge to the solicitation ban. The U.S. Supreme Court granted certiorari to resolve a split between the federal courts and the state supreme courts. Thirty-nine states use some form of judicial elections to select judges. Of those states, 30 states have a rule similar to Canon 7C(1). These rules are based on variations of the American Bar Association s model rules for judicial conduct. All of the state supreme courts to consider First Amendment challenges to their solicitation ban have upheld their rule. The majority of the federal circuit courts that have considered the question, however, have struck down the rules. The circuit courts striking down solicitation bans have based their rulings on the Supreme Court s opinion in Republican Party of Minnesota v. White (2002). In White, the Supreme Court invalidated a Minnesota judicial canon that prohibited judicial candidates from announcing their view on judicial issues. The Court found the rule violated the candidate s First Amendment right to announce their views as a candidate. The Court assumed strict scrutiny applied to the rule, though a concurrence by Justice Anthony Kennedy left the question open. [S]tate ethical codes of conduct baring judges and judicial candidates from personally soliciting money do not violate the First Amendment. When Ms. Williams-Yulee s case was granted certiorari, it attracted significant attention from groups concerned with judicial elections and free speech. The case drew amicus briefs from the ACLU and the Thomas Jefferson Center for the Protection of Free Speech in support of Ms. Williams-Yulee. In support of The Florida Bar, amicus briefs were filed by the ABA; the states of Arizona, Arkansas, Idaho, Indiana, Mississippi, North Dakota, Oregon, Pennsylvania, South Dakota, Vermont, and Washington; the Brennan Center for Justice; and the Conference of Chief Justices, among others on both sides. The Supreme Court upheld Florida s canon. In a majority opinion by Chief Justice John Roberts, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, the Court found that even under strict scrutiny, Canon 7C(1), is the rare case that survives. The Court found Florida s interest in preserving public confidence in the integrity of its judiciary was of such importance that Canon 7C(1) was narrowly tailored. The Court noted that judicial candidates were not barred from stating what they believed, discussing their qualifications, or even expounding their judicial philosophy. All a judicial candidate was barred from saying was please give me money. The majority drew a dissent from Justice Antonin Scalia, who said, the First Amendment is not abridged for the benefit of the Brotherhood of the Robe. Justice Samuel Alito, also in dissent, found Canon 7C(1) about as narrowly tailored as a burlap bag. Justices Kennedy and Clarence Thomas also were in dissent. The majority decision is critically important for future regulation of judicial campaigns. The solicitation ban is but one limitation on how candidates and their committees may solicit contributions. For instance, many states have rules that limit the time period when a judicial candidate s campaign may accept contributions. Had the Court struck down Canon 7C(1), limitations on when a judicial candidate could solicit contributions would immediately have been suspect. We could have been faced with a system where judges are able to personally ask for money at any time. The elected judiciary would have looked little different from the political branches if unbridled solicitations were to occur. The Court, however, recognized judges are different; they are not politicians, even when they have to run for office. Throughout the nation, money continues to flow into judicial elections. Public opinion polls suggest those contributions are eroding the public s confidence in the independence of their judiciaries. The Court s ruling in the case will not push back the flow of money; however, it will prevent judicial elections from becoming much worse. Adam R. Vaught is an associate in the Chicago office of the national law firm of Hinshaw & Culbertson LLP. He was lead author of the amicus brief filed by the American Bar Association in Lanell Williams-Yulee v. the Florida Bar. He focuses his practice in professional liability defense, with emphasis in the counseling and defense of attorneys and law firms in malpractice and disciplinary matters. Andrea K. Holder is an associate in the firm s Tampa office. She focuses her practice on the defense of lawyers and law firms in malpractice and ethics claims, as well as the defense of other professional liability clients. 5
6 Labor & Employment Seminar Hogan Lovells Summer Law Clerk Program, Miami, June 10, 2015 BY JOSH PAIKOWSKY This summer, Hogan Lovells hosted the fifth annual Getting a Head Start on Pro Bono Presentation. Hogan Lovells attorneys Al Lindsay, Clayton Solomon and Carmen Cartaya recruited over forty summer associates from various firms to attend the wellknown event. This summer was the fifth annual luncheon where summer clerks come to hear about the importance of pro bono work from the perspectives of experienced judges and practitioners. This summer s speakers included the Honorable Laurel Myerson Isicoff, Miami United States Bankruptcy Judge, and Karen Ladis, Gina Beovides and Stephanie Grosman, of Dade Legal Aid, who shared their experiences with the crowd. Zascha Blanco Abbott, Robert Weisberg, and Kristy Johnson. Dade Legal Aid Receives an Award On June 25, Dade Legal Aid s Put Something Back received the Michael L. Roffino Award for Outstanding Pro Bono Project at the Florida Bar Annual Meetings in Boca Raton. Pictured here are Karen Ladis and Greg Coleman, immediate Past President of The Florida Bar. Judge Isicoff spoke first, sharing stories of her early years as a young attorney. She told these stories with great passion emphasizing her beliefs on the importance of pro bono work. She spoke of how pro bono work gave her some of the best memories of not only her career but also her life. She explained how this type of work provides an attorney with a special kind of joy that is almost indescribable. Isicoff s words made clear that pro work is heroic because it allows you to change the world one case at a time. Ladis spoke about Legal Aid s priorities and the need for the next generation of lawyers to get involved. Beovides spoke next, sharing her experiences as a pro bono attorney. Beovides graduated Cum Laude from the University of Miami in 2002 with a degree in Business Administration and obtained a law degree from the University of Miami Law School in For almost a decade, she has passionately represented victims of domestic, dating and sexual violence in civil injunction proceedings. Beovides explained how to get involved in pro bono work in her presentation. First, she spoke of her numerous personal reasons for her heavy involvement in pro bono work. Then, she presented a detailed PowerPoint that provided an overview of the top reasons why lawyers should participate in pro bono legal services. The program included a former client of Legal Aid s Family Law Division, who shared her gut-wrenching story of how her access to a Staff Attorney for her family law and domestic violence problems saved and changed her life. Stephanie Grosman, an attorney in the Family Law Division, and a graduate of Stetson University Law School, shared her experiences and also spoke about all of the opportunities for young lawyers to get involved with the DCBA Young Lawyers Section. Ladis thanked Hogan Lovells for their generosity in hosting this wonderful event to engage future lawyers in becoming involved at the inception of their legal careers. Clayton Solomon, Carmen Cartaya, Honorable Laurel Isicoff and Karen Ladis. 6 DCBA BULLETIN AUGUST 2015 The Florida Bar Convention Friends, family, and colleagues celebrated at a reception. Karen Ladis, Steve Davis, DCBA Past-President, David Josefsberg, Honorable Martin and Cindy Zilber.
7 Proposals for Settlement BY THOMAS L. HUNKER The First District s recent opinion in Floyd v. Smith, No. 1D , 40 Fla. L. Weekly D848c (Fla. 1st DCA Apr. 9, 2015), provides some new guidance regarding the form and content of proposals for settlement under section , Florida Statutes, and Florida Rule of Civil Procedure There are two main points of interest in the opinion. First, the court rejected an argument that the party s proposal for settlement was defective for failing to contain a certificate of service. The court noted that Rules 1.080(f), 1.442, and were recently amended to provide for service. According to the court, these amendments eliminated the requirement of including a certificate of service when a document is served by . The court opined: Section does not specify that a certificate of service is required, but merely requires the offer to be served upon the party to whom it is made. Appellant relies on rule 1.442(c)(2)(G), which requires a proposal for settlement to include a certificate of service in the form required by rule However, although the previous version required to effectuate valid service. All that is required is an that complies with Rule 2.516(b)(1)(E). However, if of rule 1.442(c)(2)(G) required a a certificate of service is included and proposal for settlement to include conforms with the substance of Rule a certificate of service in the form 2.516(f), it will serve as prima facie required by rule 1.080(f), there is proof of service. In other words, a no longer a rule 1.080(f). Rule certificate of service is one way to prove no longer requires a certificate of service but it is not the only way. This service in a particular form. Rule is significant not just in the context 1.080(a) now provides: Every of proposals for settlement but for all pleading, subsequent to the initial documents served by . pleading, all orders, and every other document filed in the action The second point of interest must be served in conformity with is that the Floyd court also rejected the requirements of Florida Rule an argument that the proposal for of Judicial Administration settlement was ambiguous because (internal citations omitted). it referred to his claims when the offeree/plaintiff was a female. Rule changed the According to the court: requirements for service of documents, most notably, requiring service by . We also reject Appellant s claim The rule provides in detail the method that the typographical gender by which addresses are to be error in the proposal resulted in determined and verified. The rule then any ambiguity which could have sets out the requirements for the contents affected Appellant s consideration of the for service. For example, of the proposal. Appellant was the the subject line of the must begin only party in the case besides the with the words SERVICE OF COURT Appellees. There could have been DOCUMENT in all capital letters, no confusion when the proposal the case number must be included, and offered to settle his claims when the body of the must identify it should have said her claims. the court, case number, names of the No one but the Appellant had parties, title of the document served, asserted any claims. It [rule 1.442] and the name and telephone number merely requires that the settlement of the serving person. Nowhere in rule proposal be sufficiently clear and 2.516(b)(1)(E) is there a requirement that definite to allow the offeree to the or document served by the make an informed decision without contain a certificate of service. needing clarification. (citations Id. omitted). Thus, under the new service rule, a certificate of service is not The Floyd court cites to State Farm Auto. Ins. Co. v. Nicholas, 932 The Constitutional Corner color of their skin but by the content of their character. BY HONORABLE MILTON HIRSCH August 28, 1963, is the date of perhaps the best-remembered speech in my lifetime. Here is its peroration: I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed: We hold these truths to be self-evident, that all men are created equal. I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood. I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice. I have a dream that my four little children will one day live in a nation where they will not be judged by the I have a dream today! I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers. I have a dream today! I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, So. 2d 1067 (Fla. 2006) wherein the Supreme Court reasoned that it may be impossible to eliminate all ambiguity in a proposal for settlement. Thus, the rule merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. Id. Therefore, parties should not nit-pick the validity of a proposal for settlement based on allegations of ambiguity unless the asserted ambiguity could reasonably affect the offeree s decision on whether to accept the proposal for settlement. Carey-All Transport, Inc. v. Newby, 989 So. 2d 1201 (Fla. 2d DCA 2008) (quoting Nichols). These decisions are significant because when an offeree rejects a proposal for settlement and then loses the case, the offeree s attorney typically scrambles to find any ambiguity in the proposal for settlement to argue that it was invalid. However, consistent with prior case law, the First District s decision in Floyd reminds us that not just any ticky-tacky ambiguity will invalidate a proposal for settlement; the ambiguity must reasonably affect the offeree s ability to evaluate the offer. Mere typographical errors are insufficient where the offeror s intent is clear. Thomas L. Hunker is the managing partner of The Hunker Law Group. Mr. Hunker has served as lead counsel on hundreds of appeals and trial level cases. He has extensive legal writing, oral advocacy, and case management experience. Mr. Hunker can be reached at and the crooked places will be made straight: and the glory of the Lord shall be revealed and all flesh shall see it together. The Honorable Milton Hirsch has been a judge of the 11th Judicial Circuit of Florida since January of He is also an adjunct professor of law at the University of Miami School of Law and at St. Thomas Law School. In 2013, he was the recipient of the Gerald Kogan Judicial Distinction Award, the highest award given to a member of the judiciary by the Miami Chapter of the Florida Association of Criminal Defense Lawyers. The above passage is an excerpt from Judge Hirsch s Constitutional Calendar. If you would like to be added to the Calendar s distribution list, please contact Judge Hirsch at with your name and address. 7
8 DCBA OPPORTUNITIES Dade County Bar Association 123 N.W. First Avenue Miami, Florida PRSRT STD U.S.POSTAGE PAID SOUTH FLORIDA, FL PERMIT NO Members Opportunities to Get Involved 33 Committees Opportunities to Serve the Profession 100 CLE Programs Opportunities to Increase Your Knowledge More Than 250 Events a Year Opportunities to Increase Your Referral Network MARK YOUR CALENDAR AUGUST 12 Criminal Court Seminar SEPTEMBER 18 Investiture for OCTOBER 8 Probate & Guardianship OCTOBER 31 12th Annual Minority Location: Lock & Load Miami Judge Laura Anne Stuzin Seminar/Meeting Mentoring Picnic Time: 1:00 pm Location: Lawson Thomas Location: Amelia Earhart Park Private Attorney Admission: $50 Courthouse Prosecutors & Public Defenders Admission: $35 AUGUST YLS Board Retreat Location: The Breakers SEPTEMBER 25 Professionalism CLE & General Membership Luncheon Location: Hyatt Downtown Time: 8:30 am Member Admission: $10 Non-Member Admission: $20 OCTOBER 8 Criminal Court Judicial Happy NOVEMBER 5 Legal Aid s 6th Annual Patently Impossible Project Location: Miami Science Museum West Palm Beach Admission: TBA Hour Time: All Day AUGUST 28 Investiture for Judge Diana Vizcaino SEPTEMBER 27 11th Annual Court Care Program Location: Children s Courthouse Time: 5:00 pm Location: Pride & Joy Time: 5:30 pm OCTOBER 15 Law Library Fundraiser SEPTEMBER 3 YLS Open House OCTOBER 1 YLS Social Location: American Social OCTOBER 16 3rd Annual New Attorney Breakfast Location: Burger & Beer Joint Admission: TBA SEPTEMBER 10 Probate & Guardianship OCTOBER 2 Legal Aid Fair Housing & Assistance Animals for Persons Time: 7:30 am OCTOBER 23 Over the Rainbow Judicial Seminar/Meeting with Disabilities Reception & Awards Dinner Location: Lawson Thomas Location: Lawson Thomas Location: Coral Gables Courthouse Courthouse Country Club Time: 11:00 am Member Admission: $10 Early Admission: $89 Non-Member Admission: $20 OCTOBER 30 Investiture for Judge Jason Bloch For more information visit 8 DCBA BULLETIN AUGUST 2015