T H E A D V O C A T E A N O N L I N E N E W S L E T T E R O F T H E S O U T H P A L M B E A C H C O U N T Y B A R A S S O C I A T I O N

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1 T H E A D V O C A T E A N O N L I N E N E W S L E T T E R O F T H E S O U T H P A L M B E A C H C O U N T Y B A R A S S O C I A T I O N S P R I N G O F F I C E R S M A R C A. K A U F M A N P R E S I D E N T M A R K R. O S H E R O W P R E S I D E N T - ELE C T P A T R I C I A A L E X A N D E R T R E A S U R E R E R I C A. G O R D O N S E C R E T A R Y R O B I N I. B R E S K Y I M M E D I A T E P A S T P R E S I D E N T D I R E C T O R S A N D R E W D E C T O R H O L L Y G A Y L E L. A. P E R K I N S G O R D O N D I E T E R L E E L L E N M. L E I B O V I T C H C H R I S T O P H E R S A J D E R A J A M E S A. F E R R A R A D A N I E L A. K A S K E L E D I T O R I A L R E V I E W B O A R D E L L E N M. L E I B O V I T C H E D I T O R - IN- C H I E F M A R K R. O S H E R O W S E A N M. L E B O W I T Z S E E M A P A T E L L A Y O U T & D E S I G N President s Message - Marc A. Kaufman As our 53rd year comes to a close, I would like to thank our members for making our events truly enjoyable. And I would like to thank our Board members, committee chairs and Young Lawyer s Section for their efforts in once again showing our community that the South Palm Beach County Bar Association is an association that we can all be proud of. I am most proud that we have established a firm and secure financial posture for our organization. Through our member involvement and through our sponsors, we were able to present wonderful programs and events this past year. As many of you know, we increased the number of annual sponsors and the number of event sponsors. We are so very proud of our continuing relationship with Sabadell United Band, Joel Weisman, P.A. and Alpine Jaguar. Moreover, we are grateful to our new sponsors Kravit Estate Appraisers, Signature Court Reporting and Brenner Real Estate Group. Our board members, Gordon Dieterle and Andy Dector, have done a wonderful job scheduling entertaining and informative speakers for our monthly membership luncheons at Morton s in Boca Raton. Our speakers included: - Palm Beach County Clerk of Court, Sharon Bock - Lynn University Professor, Robert Watson - Florida Bar President, Gregory Coleman - 15th Judicial Circuit Chief Judge, Jeffrey Colbath - Boca Raton Magazine Editor, Kevin Kaminski - Palm Beach County Sheriff, Ric Bradshaw - Professor and Dean of Nova Southeastern University Law School, Jon Garon This year, our Young Lawyers Section (YLS) hosted numerous well-attended events. Donations were made to the Legal Aid Society of Palm Beach County from the attendance fees generated at YLS April 22 Bowling Bonanza, as well as a portion of the fees which were generated from the 11th Annual Golf Classic at the Boca Raton Golf Course on April 24. Our Annual Installation and Celestial Gala will be held at St Andrews County Club on May 30, This promises to be an event that you will not want to miss. This year we will be honoring The Honorable Janis Bustares Keyser and The Honorable Gregory M. Keyser as our 2015 Distinguished Jurists of the Year. Please check for future committee events, section events, luncheons and signature events 1

2 on our website Most importantly, should anyone have a suggestion for a new event, please do not hesitate to contact me. Everyone should have a say in the direction and success of the South Palm Beach County Bar Association. I look forward to seeing everyone at our upcoming events! Marc A. Kaufman, President, SPBCBA Views and conclusions expressed in articles and advertisements in The Advocate, and any other publication of the South Palm Beach County Bar Association, are those of the authors or advertisers and not necessarily those of the officers, directors or staff of the South Palm Beach County Bar Association. Further, the South Palm Beach County Bar Association, its officers, directors and staff do not endorse any position, product or service advertised. Our copy deadline is at the discretion of the Editorial Board, but is generally two weeks before the announced publication date. At this time The Advocate is being published on-line and disseminated via only, although the Association reserves the right to publish by other means at any time, and to maintain a depository for all items published, through its website, or otherwise. 2

3 Excellence is an art won by training and habituation. We do not act rightly because we have virtue or excellence, but we rather have those because we have acted rightly. We are what we repeatedly do. Excellence, then, is not an act but a habit. Aristotle REAL ESTATE COMMITTEE HOSTS CONDO VULTURES by Daniel A. Kaskel On January 29, 2015, the Real Estate Committee was proud to host a standing room only crowd to hear from Peter Zalewski of Condo Vultures. Mr. Zalewski, a real estate columnist and nonpracticing broker, discussed whether or not South Florida is headed for another condo bust. This luncheon was sponsored by Old Republic National Title Insurance Company. Mr. Zalewski proved to be a wealth of interesting information, providing in great detail statistics of condominiums under development from Miami through Jupiter. He also shared his unique insights into the local Boca Raton/Delray condominium markets. Mr. Zalewski shared real estate trends from the beginning of the last recession to the present, discussed influences that foreign buyers and currency fluctuations have on our real estate market. He explained which submarkets are in greater demand, and what our area can expect in the way of price adjustments in the months to come. 3

4 Family Law Committee Update by Scott M. Weiss On March 5th, the Family Law Committee was honored to welcome Eilene Brodie, CPA of J.D. Gilbert & Company, and Cinnamin O'Shell of Manis O Shell. LLC. Both familiar faces to the Family Law Committee, Ms. Brodie and Ms. O Shell spoke on the topic of The Appreciation of Non- Marital assets and how to calculate the marital portion of the appreciation under the cases of Kaaa v. Kaaa, 58 So.3d 867 (2010) and Stevens v. Stevens, 651 So.2d 1306 (1995). We thank Ms. Brodie and Ms. O Shell for their primer on the subject and their presentation which is available on the committee s web page. In April the committee will welcome Paul Buschman, Esquire to speak on the topic of malpractice in family cases, and in May, we will host a joint luncheon with the Bankruptcy Practice Committee. Eilene Brodie, CPA, CFF, CGMA M a r c h L u n c h e o n F e a t u r e s K e v i n K a m i n s k i b y A n d r e w D e c t o r On March 10, 2015, the Association hosted Kevin Kaminski, Editor of the Boca Raton Magazine as its luncheon speaker. Mr. Kaminski has served as Editor since 2006 during which time the Magazine earned the Florida Magazine Association s highest honor as best overall magazine in its circulation category on five separate occasions including last year. During his tenure at the Magazine, Mr. Kaminski has had the opportunity to meet many people with special stories and backgrounds and had reported on them. At the Luncheon, Mr. Kaminski shared several of those stories with the Association s members which clearly highlighted the interests of the diverse population in South Florida. Kevin Kaminski, Editor of the Boca Raton Magazine 4

5 SPBC FAWL HONORS WOMAN LAWYER OF THE YEAR by Ellen M. Leibovitch On March 24, 2015, the Past Presidents Committee of the South Palm Beach County Chapter of the Florida Association for Women Lawyers (SPBC FAWL), presented its inaugural Woman Lawyer of the Year award to Palm Beach County Circuit Court Judge Samantha Schosberg Feuer. The event was held at Woodfield Country Club and close to 100 people were in attendance, including the following members of the judiciary: Fourth DCA Judge Alan Forst and 15th Judicial Circuit Court Judges Edward Artau, Charles Burton, Martin Colin, David French, Jeffrey Gillen, John Kastranakes, Rosemarie Scher, Jessica Ticktin and Daliah Weiss. The Woman Lawyer of the Year award was intended to honor a female attorney involved in both the legal and non-legal communities and whose recent achievements reflect positively on the role of women in the law. Ellen Leibovitch, Chair of SPBC FAWL s Past Presidents Committee, said the decision on who would be honored was not a difficult one as Judge Feuer epitomizes what SPBC FAWL stands for as a group: she has spent her legal career working for the advancement of women and the administration of justice while also achieving success as a female lawyer, most recently with her uncontested ascension to the bench as a Circuit Court Judge. Leibovitch spoke about Judge Feuer s career as a prosecutor in Miami and West Palm Beach, the South Florida Bureau Chief in the Economic Crimes Unit with the Florida Attorney General s Office and in private practice with Akerman, as well as her founding the Women s Foundation of PBC and creating the Girls Leadership Institute which provides training for atrisk girls. Gary Lesser, whose firm Lesser, Lesser, Landy & Smith was the grand event benefactor for the event, presented Judge Feuer with the award. Upon acceptance, Judge Feuer thanked her family and friends for their support, with a special thanks to her father and her husband who were also in attendance. (L-R) Robin Bresky, Ellen Leibovitch, Rochelle Kerner, Tanya McConnell, Judge Samantha Schosberg Feuer, Mindy Stein, Angelina Namia, Laurie Thompson, Holly O Neill 5

6 Joint Luncheon: Labor & Employment Law and Diversity & Inclusion Committees by Daniel A Kaskel On Friday, February 6, 2015, the Labor & Employment Law Committee and Diversity & Inclusion Committee hosted a joint luncheon and panel discussion entitled Are Microinequities Damaging Your Workplace? What Every Partner, Judge and Attorney Should Know Open Minds Training. This event was chaired by Jurate Schwartz, Melissa Zinkil, L.A. Perkins and Dan Kaskel. J ur ate and Melissa ser ved as moder ator s to thr ee ver y distinguished panelists: Judge Meenu Sasser; Lynn A. Gross, Esq., Vice President, Human Resources Retail and Real Estate with Office Depot; and Gary L. Sasso, Esq., President and CEO, Carlton Fields Jorden Burt. The luncheon was held at the Farmer s Table in Boca Raton. The term Microinequity was unfamiliar to many in the audience, but the nearly 50 attendees obtained a much better understanding of this important workplace issue. Microinequity is a term coined, in 1973, by an MIT researcher, referring to subtle put-downs, snubs, slights, dismissive gestures or sarcastic tones that devalue employees and undercut their performance. The moderators created an interesting scenario including a 20 attorney law firm, and presented multiple fact patterns containing both obvious and not so obvious microinequities. The vignettes included, by way a few examples, a partner focusing attention on a favored associate; attorneys discussing sporting events to the exclusion of a less-informed female colleague; requesting a minority attorney s attendance at a meeting solely because of her minority status; failure to make appropriate eye contact with subordinates; and other similar conduct. The moderators summarized each vignette, and asked specific questions to the panelists. The wealth of experience and information the panelists brought to the table provided for some very thought provoking discussion. The panelists, joined by the moderators and participants, shared comments and suggestions to both address microinequities in the workplace, and more importantly, guidance to avoid such scenarios. The Labor & Employment Law Committee and the Diversity & Inclusion Committee were very happy to join efforts to present this program. Thanks to Jurate Schwartz and Melissa Zinkil for preparing a very well thought-out and detailed presentation. And a very special thanks to our event sponsors: Akerman, Carlton Fields Jorden Burt, Perkins Pershes, Proskauer, Sachs Sax Caplan and Shea Barclay Group. (L-R) Panelists Gary Sasso, Judge Meenu Sasser, Lynn Gross 6

7 (L-R) Jonathan S. Morris, Brandan Pratt, Lisa Hurley, Howard Dubosar, Marc Kaufman, Christopher Sajdera, John Page Cigar Mixer by James T. Ferrara In an effort to hold more social events and create an opportunity to network with each other, members of the South County Bar were treated to drinks and premium cigars after hours at Prime Cigar in Boca Raton. A special thanks to The Dubosar Law Group, P.A. and Brenner Real Estate Group for sponsoring this event. (L-R) Brandan Pratt, Christopher Sajdera, Scott Weiss, Jonathan S. Morris, John Page (L-R) Scott Brenner and guest, James Ferrara, Howard Dubosar 7

8 February Luncheon Features Chief Judge Jeffrey Colbath by Gordon A. Dieterle Chief Judge Jeff Colbath appeared at our February 10, 2015 monthly membership luncheon accompanied by Amy Borman, Legal Counsel for the 15th Judicial Circuit, Noel Chessman, Chief Technology Officer and Barbara Dawicke, Court Administrator. Judge Colbath gave his annual state of the court address, specifically focusing on the recent wholesale turnover and replacement of judges on the circuit bench, judge divisional reassignments, new and proposed local rules changes and administrative orders, status of court funding and courthouse security. Judge Colbath and Ms. Borman took numerous questions from the audience, particularly on the rule requiring counsel to undertake good faith efforts to resolve pending motions before the scheduling them to be heard at Uniform Motion Calendar, including the process for certification of such efforts. The luncheon was well attended, and the presentation well received by an engaged audience. Thank you to Judge Colbath and his team for supporting SPBCBA! (L-R) Amy Borman, Barbara Dawicke, Judge Colbath, Noel Chessman 8

9 Y o u r F i n a n c i a l A d v i s o r C l i e n t s S h o u l d B e w a r e o f T h e R e a l E s t a t e B r o k e r S t a t u t e b y A s h l e y D i l l m a n B r u c e Picture this: owners of a small company contemplate selling the company but they do not want the marketplace to know a sale is in the works. In deciding to keep things low-key and low cost, the company decides not to retain the services of an investment banking house or similar financial services company that typically would engage in a broad-based, publicized effort. Instead, the company approaches a financial advisor who specializes in assisting companies with private equity transactions including mergers and acquisitions, to assist and advise in the potential sale. The company and advisor memorialize their agreement to work together in a Financial Consulting Agreement that specifies the advisor will provide financial consulting services in connection with a sale. In this regard, the advisor will assist in evaluating transaction proposals, and negotiating and structuring the financial terms of a transaction. In one instance the advisor assists the company by telephoning several prospective purchasers to get their temperature for a sale. The advisor serves as a financial advisor for over one year and during that time, communicates directly with the financial officers of the target companies in structuring potential deals. Ultimately, one of the companies that the advisor spoke with purchases the company. When the advisor seeks his fee as part of his services, the company refuses and claims the agreement violates the Florida Statutes because the advisor is not a licensed real estate broker. The matter proceeds to arbitration. The Company s Position: Broker Includes Negotiation The company relies on the financial advisor s contact with potential purchasers and the broad definition of broker under the Florida Statutes. The Florida Statutes invalidate contracts for a commission or compensation for any act or service that a broker performs unless the person is licensed as a real estate broker when performing the service , Fla. Stat. A broker is broadly defined as a person who is expressly or impliedly promised or paid value for certain services including: negotiating a sale, exchange, purchase, or rental of business enterprises or business opportunities (1)(a), Fla. Stat. The definition also includes one who takes any part in the procuring of sellers, purchasers, lessors, or lessees of business enterprises or business opportunities, or who directs or assists in the negotiation or closing of any transaction that results in a sale, exchange, or leasing of a business. Id. A single act is sufficient to bring a person within the meaning of the broker definition. See id. And because Chapter 475 was intended to protect the public, its protections cannot be waived. The company relies on Meteor Motors, Inc. v. Thompson Halbach & Associates, 914 So.2d 479 (Fla. 4th DCA 2005). There, a broker from another state sought out potential purchasers and was the procuring cause in the sale of an entire car dealership in Florida. His compensation contract was based on his contact with prospective purchasers and the procurement of a buyer. When the broker sought a commission, the dealership refused and the court agreed. The court found that the definition of broker included persons assisting in the sale of a business and that the broker statute was not limited to sales of real estate. Id. at The Financial Advisor s Position: Advisor is Not a Broker The financial advisor relies on the services performed pursuant to the consulting agreement and the practical import of the broker statute as a whole. Chapter 475 is titled Real Estate Brokers, Sales Associates, Schools, and Appraisers and has four parts that regulate certain areas of real estate transactions. With the purpose of regulating real estate brokers, sales associates, and schools in this state, the Legislature created two administrative bodies to carry on its intent a Division of Real Estate which protects the public by regulation of real estate and appraisers and the Florida Real Estate Commission which administers and enforces the real estate license law and , Fla. Stat. Other sections of Chapter 475 explain the qualifications for becoming a real estate broker and the requirements for maintaining an office. The financial advisor will argue that neither Chapter 475 nor the regulations require that financial consulting or financial advising be taught in real estate schools or require real estate school teachers to have competence at financial consulting. If the legislative intent was for the statute to involve financial consulting services in connection with the sale of a business, then there would be greater reference throughout the statute. Practically speaking, to adopt a broad construction of the definition of broker would encompass any person helping negotiate the financial terms of a deal, and that person would have to spend many hours of class time, sell real estate for two years, and learn about topics exclusive to real estate. See , Fla. Stat. Application of the statute to include the advisory activities involved in this scenario leads to absurd, and penalizing results. A Call for Clarity: The Broker Definition is Unclear While there are limited exceptions to the definition of broker, a court may find that virtually anyone who communicates with anyone at a target company falls within the ambit of this statute. See Meteor Motors, 914 So.2d at 483. Until more clarity is provided, financial consultants and others assisting in the sale of a company need to be careful not to negotiate the terms of a transaction with the target company. Ashley Dillman Bruce is an attorney at Berger Singerman, LLP and practices on the Dispute Resolution and Business Reorganization teams where she handles a array of complex business litigation as well as bankruptcy and restructuring matters. Ashley can be reached at ADBruce@bergersingerman.com. 9

10 Law Day 2015 by Dan Kaskel In Recognition of Law Day. On May 1, 1958, President Dwight D. Eisenhower proclaimed the first official Law Day to honor the role of law in the creation of our nation. In 1961, Congress passed a resolution establishing Law Day. President Eisenhower s proclamation was quite moving and worthy. It states that: WHEREAS it is fitting that the people of this Nation should remember with pride and vigilantly guard the great heritage of liberty, justice, and equality under law which our forefathers bequeathed to us; and WHEREAS it is our moral and civic obligation, as free [people] and as Americans, to preserve and strengthen that great heritage; and WHEREAS the principle of guaranteed fundamental rights of individuals under the law is the heart and sinew of our Nation, and distinguishes our governmental system from the type of government that rules by might alone; and WHEREAS our Government has served as an inspiration and a beacon [of] light for oppressed peoples of the world seeking freedom, justice, and equality for the individual under laws; and WHEREAS universal application of the principle of the rule of law in the settlement of international disputes would greatly enhance the cause of a just and enduring peace; and WHEREAS a day of national dedication to the principle of government under laws would afford us an opportunity better to understand and appreciate the manifold virtues of such a government and to focus the attention of the world upon them: NOW, THEREFORE, I, DWIGHT D. EISENHOWER, President of the United States of America, do hereby designate Thursday, May 1, 1958, as Law Day. I urge the people of the United States to observe the designated day with appropriate ceremonies and activities; and I especially urge the legal profession, the press, and the radio, television, and motionpicture industries to promote and to participate in the observance of that day. How fortunate are we, as attorneys, to be in a position to play a small role in carrying-out the noble sentiment articulated by President Eisenhower. 10

11 Personal injury law firm occupying a multi-office suite in a 6-story, Class-A building in Boca Raton seeks a professional practice / solo practitioner(s) that will complement their friendly and well-designed environment. Conveniently located on Glades Rd. and the Turnpike. 1-3 offices available on the third floor with accompanying secretarial spaces. Also available- a large, corner, partner's office with 2 walls of windows. Conference room, copy machine and high-speed internet included. For more information and to schedule a tour, please contact: Robin Coggin or Anne-Marie Kopek Kogan DiSalvo & Schmitt Personal Injury Attorneys

12 Criminal Law Update: Dealing in Stolen Property & Verification of Pawned Goods by W. Craig Lawson Another holiday season is behind us. And thank goodness, because they sure can be expensive: gifts, parties, new clothes for the children. Busy time for everyone, including pawn shops. Many people sell personal items to pawn shops to raise money for holiday purchases. Even though Christmas, Valentine s Day and Easter are recent memories, Mother s Day is right around the corner. So imagine this scene: you (hereinafter referred to as My Future Client ) are relaxing on a Saturday afternoon when you get a call from Friend... Friend: Hey, will you pick me up and give me a ride somewhere? I ll pay for the gas. My Future Client: Sure. (In the car) Friend: Go that way. I need to stop at that pawn shop. You park the car and walk with Friend into the pawn shop. Friend pulls a piece of jewelry out of his pocket and lays it on the counter in front of a clerk, and the two begin negotiating a price. Clerk and Friend to a price. Clerk: I cannot give you any money until you show me ID and give me a thumb print. Friend: I left my wallet at home because I wasn t driving. I really need the money so I can buy a gift for my mom. Friend to Clerk: Can t you make an exception this time? You can give me less money. Clerk: No exceptions. That would be against the law. ID and thumbprint or no deal. Friend to My Future Client: Can we use your ID? My Future Client: Sure. So, you give your ID to the clerk, apply your thumbprint to the sales document, and the clerk pays your friend. You and your friend leave the store and drive away. Then, maybe a month or so later, you answer a knock at the front door. Standing before you is a police officer, who then arrests you and drags you away in handcuffs, for dealing in stolen property, which you learn is a second degree felony punishable by up to 15 years in prison! You re understandably upset and even a little panicked, but you re convinced this is a mistake which will be resolved in no time. Then you learn that it was your friend who set you up for this. You had no idea that providing your ID and thumbprint to the pawn shop clerk meant that you swore that the property your friend had pawned belonged to you. Here is the tip: If a friend asks for a ride and you end up at a pawn shop, you should remain in the car. Do not participate in the transaction in any way. Even if you are just standing near the friend during the transaction, you could be implicated! W. Craig Lawson is a criminal defense attorney at Craig Lawson, P.A. Mr. Law-son is also a Co-Chair of the SPBCBA s Criminal Practice Committee. 12

13 Florida Supreme Court Amends Rules of Appellate Procedure by Robin Bresky The Florida Supreme Court recently issued three orders updating the Florida Rules of Appellate Procedure with amendments that took effect on January 1, The first order amended Rule 9.142(a)(1) (B) ( Procedures for Review in Death Penalty Cases; Procedure in Death Penalty Appeals; Record ) to require the clerk of the trial court to retain a copy of the complete record when it transmits the record to the Florida Supreme Court on appeal. The second order is 53 pages in length. This summary is just a preview of a few of the revisions: Rule governs original proceedings (petitions for writs) filed in the appellate court. The rule previously said that the court may issue an order to show cause if the petition appears to demonstrate a proper basis for relief. If the court issued an order to show cause in a prohibition case, the proceedings in the lower court were automatically stayed. But some appellate courts were requesting a response to the petition, rather than specifically ordering the respondent to show cause as to why the petition should not be granted. There was concern that this procedure was circumventing the automatic stay in prohibition cases. The Florida Supreme Court decided that the appellate courts should maintain their discretion to simply request a response. The amendment now clarifies that appellate courts have the discretion to choose either to (1) issue an order to show cause and stay the proceedings below (in prohibition cases) or (2) request a response that does not stay the proceedings below. Rule 9.110(k) was amended to distinguish certain partial final judgments that are immediately appealable from those that are not. Previously the rule stated that generally partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. The rule now clarifies: A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims. Rules 9.110(l) and 9.020(i) were amended to clarify the relationship between the rule on premature appeals and the rule on rendition of orders and judgments. Previously, a post-judgment motion such as a motion for rehearing was deemed abandoned if the party filed a notice of appeal while the motion was pending. The amendment to Rule 9.020(i) eliminated the language providing that a party abandons its post-judgment motions upon the filing of a notice of appeal. The amended rule allows the post-judgment motion to remain pending and be disposed of while the appeal can be held in abeyance until such disposition. Under Rule 9.110(l), premature appeals are still subject to dismissal. However, the amendment recognizes the exception under Rule 9.020(i) and clarifies that it is neither necessary nor appropriate to request a relinquishment of jurisdiction from the appellate court to enable the lower tribunal to render a final order, because the lower tribunal automatically retains jurisdiction to render a final order. If a final order is rendered before dismissal of the premature appeal, the premature notice of appeal is effective to vest jurisdiction in the appellate court to review the final order. A party may request the appellate court to allow the parties time to obtain a final order, but the court has no obligation to do so. Rule 9.400(b) was amended to clarify at what point in time a motion for attorney s fees must be filed in original proceedings that commence with the filing of a petition in the appellate court. That issue had previously been unclear due to some conflicting judicial opinions. Now the rule specifies that the motion for attorney s fees must be served no later than the time for the petitioner s reply to the response to the petition. Rule 9.130(a)(3)(C)(iii) previously allowed for an appeal of two specific categories of non-final orders in family law matters: the right to immediate monetary relief or child custody. The amendment specifically included child time-sharing along with custody. It also added a new category: a non-final order determining that a marital agreement is invalid in its entirety. Rule 9.130(a)(4) formerly precluded appellate review of some non-final orders entered after final order on motions that suspend rendition, such as a motion for rehearing. The amended version states: Orders disposing of motions that suspend rendition are not reviewable separately from a review of the final order; provided that orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in rule The revision allows an order disposing of a motion that suspends rendition to be reviewed on appeal, but only in conjunction with, and as a part of, the review of the final order. Additionally, the following sentence has been deleted from Rule 9.130(a)(4): Other non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule. The committee notes explain that its deletion clarifies that non-final orders entered after a final order are no more or less reviewable than the same type of order would be if issued before a final order. Non-final orders entered after a final order remain reviewable as part of a subsequent final order or as otherwise provided by statute or court rule. The committee note also explains that this amendment will delay some courts review of some non-final orders entered after a final order until rendition of another, subsequent final order. But the amendment is not intended to alter the Court s ultimate authority to review any order. The amendment to Rule added a new division (g) to expressly provide for cross-appeals of non-final orders: An appellee may cross-appeal the order or orders designated by the appellant, to review any ruling described in subdivisions (a)(3) (a)(5), by serving a notice within 10 days of service of the appellant s timely filed notice of appeal or within the time prescribed for filing a 13

14 notice of appeal, whichever is later. A notice of cross-appeal, accompanied by any filing fees prescribed by law, shall be filed either before service or immediately thereafter in the same manner as the notice of appeal. The Supreme Court s third order also amended Rule by adding two new kinds of appealable non-final orders. Under paragraph (a)(3)(c), it adds (x) [an order] that, as a matter of law, a party is not entitled to immunity under section (9), Florida Statutes; or (xi) [on order] that, as a matter of law, a party is not entitled to sovereign immunity. The cited statute generally shields officers, employees, and agents of the state and its subdivisions from personal liability in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function. The amendments to Rule allowed for interlocutory review where an individual defendant (government officer, employee, or agent) who claims immunity under section (9)(a) is denied that immunity and the issue turns on a matter of law. The amendment also allowed interlocutory review of the denial of any claim of sovereign immunity by a government entity where the question presented is solely a question of law. As noted earlier, this is just a summary of a few of the amendments to the Florida Rules of Appellate Procedure that took effect on January 1, It is advisable to read the three orders in their entirety. The first order is published at 148 So. 3d 1171, amending only Rule The second order is found at 39 Fla. L. Weekly S 665 and amended numerous rules of appellate procedure. The third order is found at 39 Fla. L. Weekly S 675 and amended only Rule 9.130(a)(3)(C). The Law Offices of Robin Bresky focuses on appellate practice and Robin Bresky is a member of The Florida Bar s Appellate Court Rules Committee. Family Law Seminar on Legal Malpractice by Scott M. Weiss On April 16, 2015,The Family Law Committee welcomed Paul Bushmann, Esquire of Hinshaw & Culbertson, LLP, to speak on the topics of Legal Malpractice. Mr. Bushmann discussed cases from his thirty plus years of practice. Mr. Bushmann also discussed some ethic opinions related to cloud computing The committee would like to thank Mr. Bushmann for speaking and for his sponsorship of the lunch. Materials from Mr. Bushmann s presentation will be available on the committee s web page. 14

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16 Solo & Small Law Firm Committee Update by Michael Degnan The Solo/Small Law Firm Networking Group has continued to hold dinner meetings generally every other month but has moved the meetings to Maggiano's Little Italy, which has worked out very well. Dinner meetings will continue going forward throughout the year with our next one being scheduled for Thursday, May 28, 2015 at 6:00 pm. As usual, the next meeting will consist of a meet and greet/cocktail hour followed by a dinner at which we spotlight several of our members and their practices and will be a great opportunity to meet or re-connect with other small firm attorneys from the Palm Beach and Broward areas in order to grow networking circles and build referral relationships. If you are an attorney in a law firm with four attorneys or less and would like to attend the dinner, please visit the SPBCBA's website in order to rsvp for the event. Also, more information about the Solo Networking Group and upcoming events can be found on the SPBCBA's website. Probate and Guardian Committee Update by Yoshimi O. Smith and Lauren A. Klein The Probate and Guardianship Committee was pleased to have Jeffrey Baskies, co-founder of the Boca Raton law firm of Katz Baskies, LLC, present recent developments in the area of Florida homestead law. The presentation was hosted in the South Palm Beach County Courthouse, and was attended by members of the Committee as well as members of our distinguished judiciary. Mr. Baskies, one of Florida s foremost experts on homestead law, provided information on several hot topics relating to homestead law, including several recent cases involving litigated homestead rights and property deeded to a qualified personal residence trust, recent issues with ad valorem property taxes and other related issues. Mr. Baskies also discovered questions and engaged in interesting and educational dialogues for the benefit of all who attended. The Probate and Guardianship Committee looks forward to presenting its members with informative and relevant speakers throughout the year. See everyone at the next meeting! 16

17 The Nasty Facts About Elder Financial Abuse & Fraud by Ferial Andre, RN, CCM, CDP, AEd. Elder financial abuse, exploitation, and elder fraud is one of the largest growing threats in the lives of Seniors. Seniors are tempting targets as the elderly may have significant savings and wealth. A generation brought up to be polite and taught to be trusting are people that make easy prey. Add in mild cognitive impairment, neurodegenerative conditions, Parkinson s disease, dementia, or Alzheimer s disease, and Seniors become even more susceptible to swindling, fraud, exploitation, and elder financial abuse. There are many resources available to help elderly victims of investment fraud and financial exploitation when they become victims, but not very much information on how to prevent it in the first place! One study estimates that 20% of older Americans have been victimized by investment fraud and financial exploitation. Another study from MetLife Mature Market Institute states that 51% of all instances of financial abuse of the elderly are crimes committed by strangers, and 34% are committed by family, friends or acquaintances. The National Center on Elder Abuse says that contrary to popular belief, older adults are more likely to suffer abuse at the hands of their own family members acting as caregivers than by a paid caregiver. Elder related fraud and financial crimes are difficult to prevent and prosecute as many elders may not know they have been victimized, are ashamed and afraid of retribution, and often do not want to see a family member prosecuted because they believe they somehow consented to give away their own assets. A broad range of activities could be labeled financial abuse: misusing credit cards and debit cards, stealing from joint bank accounts, writing checks without proper authorization, theft of pension or benefit checks, even identity theft. It can involve threats to make an elderly person give away money or property, as well as selling inappropriate financial products that Seniors do not understand or need. Major sources of elder fraud include sibling rivalry, unscrupulous businesses, and those sweetheart scammers who ask Seniors for money for a phony sick relative or for help with a fake emergency. Some other major scams targeting seniors include telephone frauds involving bogus products or services, unsuitable or overhyped annuities, mortgage and loan modification scams, and free seminars selling fictitious investments. A few of the top ones identified by the government are: Health Care/Medicare/Health Insurance Fraud Counterfeit prescription drugs or phishing Scams Internet virus schemes Investment schemes (pyramid or Ponzi schemes) Homeowner/Reverse Mortgage scams Sweepstakes & lottery scams The Grandparent Scam involving fake relatives asking the cognitively impaired for money How do you prevent your Senior or elderly client, or even an aging loved one from becoming a victim? Know the warning signs of abuse, teach seniors to avoid situations that increase the risk of being financially exploited, and educate them about taking preventative measures. RED FLAG CHECKLIST Ask questions to determine whether the Senior is struggling with any of the following common concerns: Trouble paying bills because the bills are confusing Lack of understanding about financial decisions that someone else is making Loans or gifts given that are more than they can afford Inexplicably running out of money at the end of the month Adult children or others pressuring for money Someone is accessing bank accounts and money seems to be disappearing WARNING SIGNS TO WATCH FOR A large amount of money has been taken out of the bank or other cash account Numerous withdrawals of smaller amounts, for example $100 at a time, several times a week Large checks made out to someone no one knows Change in Power of Attorney or the beneficiaries on insurance or investment accounts Bounced checks or bills going unpaid when there should be enough money in the bank Unusual or unnecessary purchases, like golf clubs when the individual doesn t/can t play golf Large, unnecessary home repairs Relationship with a much younger person or an inappropriate person A caregiver that is way too interested in the patient s/ client s finances WHEN TO SUSPECT A FAMILY MEMBER OF SENIOR ABUSE Perhaps a client s family member should be questioned and asked for an explanation if they have: Isolated the aging parent from others and become secretive about the parent s finances Moved in with the elder parent and depends on the parent for most financial support Insisted on always being present when anyone else is with the parent Developed a substance abuse problem and has influence over an aging parent Facilitated a sudden change in estate planning documents, Trusteeship/Guardianship, Power of Attorney, or signatory on a bank or brokerage account Moved the elder parent to their own home without notice or discussion with siblings TIPS FOR SENIORS TO STEER CLEAR OF FRAUD- STERS Health Insurance Fraud Never sign blank insurance claim forms Never give blanket permission to a medical provider to bill for services not yet rendered 17

18 Ask medical providers what they charge and what is expected to be paid for out-of-pocket Carefully review the insurer s explanation of the benefits statement Give insurance/medicare identification only to those who have provided you with medical services Keep accurate records of all health care appointments and know if your physician ordered equipment for you Medicare Scams Protect your Medicare number like your credit card numbers; report suspicious activities to MEDICARE Beware of salespeople trying to sell you something they claim will be paid for by Medicare or is FREE Review your Medicare statements to be sure you have in fact received the services billed Telemarketing Scams Don t buy from an unfamiliar company; get the salesperson s name, business identity, phone number, mailing address, and business license number before making any transactions Ask for and wait until the receipt of written material about any special offer or charitable request Take your time in making a decision, ask questions until you understand the details of any deal Home Repair or Contractor Fraud Shop around before making a purchase; do not be pressured into signing contracts, or committing funds Carefully read all contracts before signing; understand all contract cancellation and refund terms Make certain that all requirements of both parties have been put in writing More Common Sense Tips to Share with Seniors Seniors should keep handy the phone numbers of the local police, their bank and Adult Protective Services (APS). To obtain the contact information for Adult Protective Services in their area, they should call the Eldercare Locator at , or visit the website: The non-profit Investor Protection Trust (IPT) has partnered with state medical associations, the American Bar Association, state bar associations and State Securities Offices to develop tools and resources for protection against elder financial abuse. Also the Elder Investment Fraud and Financial Exploitation Prevention Program (EIFFE) educates professionals who work with the elderly to recognize when their senior clients may be vulnerable to, or victims of financial abuse. Go to this link for more information: The Department of Justice created the Elder Justice Website, elderjustice, a one-stop shopping site for victims, families, prosecutors, caregivers and practitioners. You can report elder abuse here and find the local Adult Protective Services and Area Agency on Aging. Other resources include: as well as the National Center on Elder Abuse Certified Dementia Practitioners, Geriatric Care Managers, and Certified Case Managers are trained to recognize financial exploitation of the elderly. When a referral to an attorney s client is made, a comprehensive assessment is performed and the professional clinician serves as the patient s advocate: designs a future plan of care, advises if further medical evaluation is necessary and if the client needs assistance with managing financial resources, protection or legal advice because abuse, fraud, and exploitation may have occurred. This article is not intended as medical or legal advice. Do not do business or share personal/financial information with door-to-door or telephone salespeople Use direct deposit for benefit checks like Social Security so they can t be stolen from the mailbox Shred all unused credit card applications Don t leave mail in your mailbox for the carrier, bank and credit card numbers could be stolen Pay by check because the payment can be traced; never turn cash over to anyone Review your credit card, bank, account and insurance statements every month Remember to have your attorney review documents or contracts that you are unsure of If you suspect there is elder financial abuse or fraud being committed against a Senior client, or elder loved one REPORT IT! Don t assume that someone has already reported a suspicious activity or situation. The agency receiving the report will ask what was observed, who was involved, and who they should contact to learn more. Remember that you do not need to prove that abuse is occurring. The professionals will investigate the suspicious activity. Share this link with those Seniors who need to learn more about scams and how to avoid them: SavvySeniors. Ferial Andre, RN, CCM, CDP, AEd, is the Founder and CEO of Regal Home Health and Care Management. Ferial is a Registered Nurse, Certified Case Manager, Certified Dementia Practitioner, and a Certified Alzheimer s Educator. Regal Home Health is an accredited private duty nursing agency serving Palm Beach, Broward, and Martin Counties. Ferial can be reached at ferialandre@regalcares.com or at For more information visit: 18

19 Update from SPBC FAWL by Leorah G. Greenman, Esq. As the current President of SPBC FAWL, I am happy to tell you about the wonderful things that the South Palm Beach County chapter of the Florida Association for Women Lawyers (SPBC FAWL) has been doing since the start of We started out the year with a fabulous SPBC FAWL/SPBCBA joint lunch on January 21 featuring Greg Coleman, President of The Florida Bar, as our dynamic speaker. President Coleman spoke about his continued vision for the practice of law in the 21 st century and noted that our ever-changing world of internet-educated clients and the fast paced technological changes make it necessary to adapt to our legal practices. In February, SPBC FAWL honored members of the South County Judiciary at our Annual Judicial Reception. A record number of SPBC FAWL members, guests and members of the judiciary were in attendance to mix and mingle during the cool night at the beautiful Sundy House. Along with good food and cheer, SPBC FAWL, on behalf of the South County Judiciary, made a donation to the Legal Aid Society of Palm Beach. Through the efforts of board member Denise Isaacs, SPBC FAWL has continued to recruit and increase membership to an all-time high. In March, The Past Presidents Committee of SPBC FAWL s held its first Women Lawyer of the Year event at Woodfield Country Club, where we honored Judge Samantha Schosberg Feuer. April and May membership lunches are scheduled with speakers and CLEs that are sure to provide information and education to our members. Don t forget our next Happy Hour on May 21! The in June, SPBC FAWL will hold its annual Installation lunch at Mariposa (seating is limited and on a first come first serve basis this year) to welcome SPBC FAWL s board. It is with great pleasure that I have and continue to serve on the Board of this amazing, growing, supportive organization. I encourage all attorneys to JOIN and RENEW Membership with our chapter now (all dues paid now are good through June 2016!). Many thanks to the tremendous efforts of the SPBC FAWL board, The Past Presidents Committee and our members for making this group so successful and special. Please check out our website at or contact me with any questions at lgreenman@fwblaw.net. Leorah G. Greenman is the President of the SPBC FAWL. Ms. Greenman has been an attorney at Frank, Weinberg & Black, PL since 2006 and is admitted to practice law in New York and Florida. She manages the Residential Real Estate Department in the Boca Raton office. 19

20 Helping the Youth in South Palm Beach County by James T. Ferrara At the invitation of Judge Moses Baker and through the efforts of Judge Kenneth Stern (retired), several members of the South Palm Beach County Bar Association have been making regular presentations to select teenagers and their parents in an effort to help them understand that with hard work, they are capable of reaching the goals they aspire to in life. Attorneys David Prather, Chris Sajdera, Wilnar Julmiste, John Howe, Tammy Saltzman, and Associate Member, Michael Kridel, CPA have all gathered in Judge Baker s courtroom to share with these teens their own inspiring life stories and the struggles they each overcame to reach their personal and career goals. Although all of the speakers come from different backgrounds, the common thread in their presentations were that determination, education and the support of family are critical to success in life. A special thanks to Judge Baker for this opportunity to help the community and to Judge Stern for his dedication to this program. 20

21 Daubert for Dummies by E'lyn Bryan, CFDE, BAI, Certified Forensic Document Examiner and Handwriting Expert Board Accredited Forensic Investigator In 1993, Jason Daubert and Eric Schuller, both minor children, were born with severe birth defects. Their parents filed a lawsuit against Merrell Dow Pharmaceuticals. The petitioners alleged that the children were born with birth defects due to the mothers use of the drug Bendectin. Bendectin is a prescription drug used during pregnancy to combat nausea. Merrell Dow Pharmaceuticals hired a renowned forensic expert, Dr. Steven Lamm, a physician and epidemiologist. Dr. Lamm commenced an in depth study of Bendectin involving 130,000 patients. Dr. Lamm was unable to make any correlation between Bendectin and birth defects in human fetuses. The Petitioners then responded by retaining several experts to perform independent studies to support their claim that indeed, Bendectin did cause birth defects in fetuses. The experts performed in-vitro testing (test tube) research as well as in-vivo (live) animal studies. The petitioners experts opined that the use of Bendectin did in fact, show a chemical correlation to similar drugs and did cause birth defects. One would think, slam dunk for the petitioners, right? Wrong.. Why the Petitioners did not prevail... The studies performed by the petitioner s experts were to their detriment. The expert s studies were an apples to oranges comparison. The study compared human testing to animal testing. Evidence not based on epidemiological (human) studies was therefore, not admissible. The petitioner s studies were also ruled inadmissible because the judge ruled the data had not been subject to normal peer review, had not been published and was generated solely for use in the litigation. The court stated, Scientific evidence is admissible only if the principle upon which it is based is sufficiently established to have the general acceptance in the field to which it belongs. The experts for the petitioner clearly could not prove a correlation between animal testing and human testing. There were no case studies or supporting case law to bridge the gap between the two studies. The cause of birth defects by Bendectin in animals could not be established in humans. The animal cell studies, live animal studies and chemical structure analysis did not prove cause. Sound scientific, relevant testing and studies are the foundation of expert witness testimony. The basis of the petitioner s case was the re-analysis of previously unpublished research and not subject to normal peer review process. In essence, it was far reaching. The Daubert rule is based on Federal Rules of Evidence 702. Daubert is all about the methodology and principles, not the conclusion. Under the Federal Rules of Procedure, If scientific, technical or other specialized knowledge will assist the Trier of Fact to understand the evidence to determine a fact in issue, an expert may testify hereto. According to the United States Supreme Court, trial courts were provided, but not limited to, a basic check list for acceptance of expert scientific testimony: - Has the theory or technique been tested and can it be? - Has the theory or technique been subject to peer review? Published? - What is the potential or known error rate of the science in question? - Has the theory or technique been generally accepted in the related scientific field? - What standards control the science? Frye and the Facts... Prior to the 1993 landmark, groundbreaking Supreme Court decision in the case of Daubert V Merrell Dow Pharmaceuticals, the acceptability of forensic evidence was determined by the 1923 court ruling in Frye v United States. The Frye decision set the standard for the general acceptance rule. In Frye, the Supreme Court of Appeals stated that expert opinion based on scientific technique is inadmissible unless the technique is generally accepted as reliable in the relevant scientific community. The Frye decision set the stage for the rigid general acceptance test. Prior to Daubert, Frye dominated the admissibility of scientific evidence. How did Frye affect admissibility? The Frye test was a result of the 1923 Supreme Court decision on whether or not to admit evidence from the use of a new machine known as a Systolic Blood Pressure Deception Test - the predecessor to the lie detector or polygraph as we know it today. At that time, the Systolic Blood Pressure Deception Test had not gained acceptance in the scientific community or the courts. Therefore, the results of the test were found inadmissible. The court stated, The thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Daubert Defined... Daubert requires the forensic scientist to prove the evidence is fundamentally reliable scientifically. Since the 1993 Daubert decision, the reliability of expert evidence has been further scrutinized even more closely. As a result, there has been an increase of rulings of evidence being unreliable and inadmissible. The Daubert decision was in reaction to the newly instituted Federal Rules of Evidence (FRE). The new rules which demonstrated flexibility caused the prior Frye rule to be displaced. Frye was a rigid, uncompromising rule, in that the expert testimony was only allowed when the techniques and underlying methods, opinions and conclusions were generally accepted. Under Daubert, general acceptance is not required only that testimony be relevant and reliable. Therefore, Frye and FRE are fundamentally incompatible. FRE 702 supports appropriate validation. Expert testimony based on scientific knowledge establishes a standard of reliability. A valid scientific basis is a precondition to admissibility. In Daubert, the judge must screen scientific evidence to ensure reliability and relevance. The focus is solely on principals, not on the conclusion they generate. Prior to the Daubert decision 21

22 in 1993, the courts relied upon Frye, which concentrated on general acceptance in the particular field in which the science belonged. FRE 702 on acceptability of expert witnesses states Testimony is based upon sufficient facts or data. Testimony is the product of reliable principals and methods and the witness has applied the principals and methods reliably to the facts of the case. FRE is a liberal rule relaxing the traditional barriers to opinion testimony. Therefore, this standard allows for admissibility of more forms of testimony than previously. The emphasis is on scientific validity, not the conclusion. The expert witness must be able to testify defending all aspects of the validity of the science under scrutiny. The judge expects the forensic expert to defend all facets of Daubert. This is referred to as the Daubert Challenge. Daubert testimony should be extremely detailed, loaded with technical information. If the trial judge is to make his or her decision based on Daubert, he or she must screen scientific evidence. It is imperative that the forensic expert make his or her point with accurate detail, regarding the technical information related to his or her expertise in the applicable science. The duty of the forensic expert is to provide the court with the necessary proof to substantiate his or her findings and opinion. The forensic expert should come to court prepared for battle bringing supporting documentation; journals, articles, research, exhibits and reference books citing case studies of sound science to support each and every aspect of their opinion. The trial judge and jury, opposing and retaining counsel should be provided a copy of exhibits (demonstrative illustrations) if applicable. Experts should prepare a court book for reference. The court book should have copies of all the exhibits supplied the court, along with their report. Remember, whatever notes are brought to the witness stand can be reviewed by the trial judge or opposing counsel. she has a standard methodology, and if they follow a standard procedure and protocol in each of their investigations. If an expert cannot define a methodology or follow a procedure that can be replicated then the expert does not have a methodology. The scientific method is a way of logically analyzing and documenting information as it pertains to a specific discipline. If your expert follows the scientific method you should feel confident that their opinion and findings when presented to the court, will survive any challenge. The expert, with precise detail will support their analytical thought processes that contributed to their conclusion. The daunting task of being an expert witness is a daily challenge. Experts must keep current on new rulings, case law, and the latest technology in their chosen field. Experts should be certified, take proficiency tests, ongoing continuing education, refresher courses, lecture, and write articles! When interviewing an expert, be sure to ask for these extremely important qualifications. Retaining an expert should not be about the cost of the expert s service. It should be about retaining the most qualified, professional expert. A lack of convincing credentials may cause your expert to be disqualified. Not all states follow Daubert however, Florida has recently adopted Daubert. Daubert is not judge made law it is derived from FRE 702. FRE 702 is Congresses way of ensuring the trial judge maintains the integrity, reliability and relevance of the science and technical evidence presented. This law puts the trial judge in a unique position. He or she becomes the gatekeeper of the science in question. What is truly in question is how much scientific training does a judge have? Expert testimony could be excluded for any reason. This places an unfair burden upon judges. If we assume for arguments sake that the trial judge has no training in a particular forensic science, it is the responsibility of the expert to be exacting and informative. E lyn Bryan, BAI, CFDE, Certified Forensic Document Examiner and Handwriting Expert Board Accredited Investigator, Instructor, lecturer and author of forensic articles As a forensic expert, testimony should be compelling, convincing, and educational. The attorney needs to educate the expert as well, with a pre-depo or pre-court conference to be prepared to face a Daubert challenge. It is up to the forensic expert to convince the judge and jury that their testimony is reliable, relevant and based on empirical studies and sound science, not junk science. As an expert witness with an obligation to support their findings, the expert should employ and demonstrate a scientific method. Opposing counsel will certainly ask the expert if he or 22

23 Habitat for Humanity Build by James T. Ferrara On an early March Saturday morning in Boynton Beach, members of the South Palm Beach County Bar Association lent a helping hand to build a home for a deserving family through Habitat for Humanity. The day was dedicated to hanging drywall, and with some great supervision, members learned how to measure, cut and hang drywall throughout the house. At a quick meeting held before the work commenced, our drywall contractors discovered that Habitat for Humanity does not give a home to anyone and that families are expected to work a minimum of 100 hours on other homes before even being considered for their own residence. Once those initial hours are completed, the family undergoes an extensive background and credit check to ensure that they are able to pay a no interest mortgage and maintain their new home. After being assigned a home, the families are then required to put in at least another 100 hours in the construction of their home. All in attendance learned new skills and gained a greater appreciation for this wonderful program and the families that truly invest in their own home. 23

24 Lucky Brand Not So Lucky by Rachel B. Rudensky and Ira S. Sacks A recent ruling in the Second Circuit Court of Appeals may impact parties in trademark disputes, particularly in the way they negotiate settlements that impact future use of their trademarks. The trademark dispute between these parties started long ago. Since at least as early as 1986, Plaintiff Marcel Fashion Group, Inc. ( Marcel ) has sold a line of apparel under its federally registered trademark GET LUCKY. In 1990, Lucky Brand Dungarees, Inc. ( Lucky Brand ) launched its brand of jeans and casual apparel under the mark LUCKY BRAND, and other formatives of the word LUCKY. Lucky Brand quickly became an enormously successful clothing line, operating nearly 200 of its own retail stores in the United States, with hundreds of millions of dollars in annual sales. In 2001, Marcel filed a trademark infringement and unfair competition suit against Lucky Brand, which resulted in a 2003 settlement agreement. This, however, did not resolve the disagreements between the parties, and in 2005, Lucky Brand sued Marcel for trademark infringement after Marcel launched a GET LUCKY line of jeans and sportswear. Marcel counterclaimed against Lucky Brand s use of GET LUCKY, asserting infringement and breach of the 2003 settlement, and also sought to enjoin Lucky Brand from using the trademarks GET LUCKY, LUCKY BRAND, and other LUCKY formatives. That trial resulted in a jury finding that Lucky Brand infringed Marcel s GET LUCKY mark by using GET LUCKY, LUCKY BRAND, and any other marks including the word LUCKY after May 2003, and awarded Marcel monetary damages. Following the verdict, the parties negotiated and jointly drafted a Final Order and Judgment. While Marcel initially proposed the inclusion of a paragraph stating: Lucky Brand Dungarees, Inc. and Liz Claiborne, Inc. [the parent corporation] are permanently enjoined from further use of GET LUCKY, the LUCKY BRAND trademarks and any other trademarks using the work Lucky, Lucky Brand refused to agree to those terms. Marcel s counsel removed the paragraph and resubmitted the proposed order without the paragraph. The Final Order and Judgment came to include an injunction against Lucky Brand using the trademark GET LUCKY, and affirming that the Lucky Brand Parties infringed Marcel Fashion s GET LUCKY trademark by using GET LUCKY, the LUCKY BRAND trademarks, and any other trademarks including the word LUCKY after May Two years later, the parties ended up in court again when Marcel filed a complaint against Lucky Brand, alleging that Lucky Brand infringed Marcel s GET LUCKY trademark by using the Lucky Brand marks in the identical manner and form and on the same goods for which they were found liable for infringement [in the 2005 Action]. The trial court granted Lucky Brand s motion for summary judgment on res judicata grounds, holding that Marcel s claims were precluded by the 2005 Action and Marcel waived its right to seek injunctive relief against Lucky Brand s use of LUCKY BRAND by failing to seek such relief in the 2005 Action. The trial court reasoned the Marcel could have, and indeed did, seek injunctive relief directed against use of the LUCKY BRAND marks in the 2005 Action, but then abandoned any such demand. The appellate court first addressed the district court s ruling that Marcel s 2011 suit was precluded by res judicata. Winning a judgment based on the defendant s violation of the plaintiff s rights does not deprive the plaintiff of the right to sue the same defendant again for the defendant s further subsequent similar violations. The Court explained that claim preclusion requires a showing that the earlier action involved an adjudication on the merits, the previous action involved the same adverse parties or those in privity with them, and the claims asserted in the subsequent action were, or could have been, raised in the prior action. The first two elements were present in this case the 2005 action was between the same parties as the parties to the instant suit, and that case was adjudicated on the merits. However, the claims asserted by Marcel in the 2011 case were not, and could not have been, raised in the prior action. In the 2005 action, Marcel sought, and won, damages for infringements that occurred after May 2003, but prior to the filing of the complaint. Therefore, the jury verdict could not be construed as awarding damages for infringements that had not yet occurred and might never occur. In fact, such an award could not have been granted because there was no showing that Lucky Brand would infringe the GET LUCKY mark in the future. The Second Circuit also held that Marcel s failure to obtain an injunction in the 2005 action covering more than use of the mark GET LUCKY did not shield Lucky Brand from liability for future infringements. Indeed, the Court characterized as illogical the proposition that a winning plaintiff s failure to seek or obtain an injunction immunizes the losing defendant from liability for future infringements. Ultimately, the Second Circuit concluded that the district court erred in ruling that Marcel s 2011 suit was precluded by its having sued Lucky Brand in 2005 for infringement of its GET LUCKY mark, and receiving an injunction only against use of mark GET LUCKY and not against the LUCKY BRAND trademarks, and any other trademarks using the word LUCKY. The grant of summary judgment in favor of the defendants was vacated, and the case remanded. This ruling may be seen as a blow to parties who reasonably believe they are negotiating an arms-length agreement avoiding injunctions against particular trademark use. The facts suggest that Lucky Brand considered that the terms of the jointly prepared Judgment and Order allowed it to continue to sell its successful LUCKY BRAND apparel. That protection was only against contempt, however. If Lucky Brand wanted an agreement that its use of the mark LUCKY BRAND or other LUCKY formatives did not infringe GET LUCKY, it should have negotiated for one. Future trademark defendants should be aware of that lesson when negotiating settlements. Rachel Rudensky focuses her practice on all aspects of intellectual property protection and enforcement, including licensing disputes, anti-counterfeiting, and litigation. She enforces intellectual property rights in the U.S. and abroad and practices before the Trademark Trial and Appeal Board. Rachel represents a diverse group of clients, including major sports organizations, toy companies, book and magazine publishers, apparel companies, financial services providers, hotels, and restaurants. Ira Sacks practices in the area of litigation with an emphasis on trademark and branding matters. He handles complex and highprofile cases involving trademark, copyright, and patent infringement issues, distribution disputes, false advertising, price fixing, dealer termination, monopolization and unfair competition, unfair trade practices, and trade secrets. Ira s clients include fragrance and fashion companies as well as national scientific laboratories, real estate developers, and financial institutions. 24

25 NOTICE TO ALL ATTORNEYS PRACTICING IN FORECLOSURES IN PALM BEACH COUNTY DISTRIBUTION OF NEW A.O /15 AND NOTICE OF MEETING MAY 15, 2015 There will be a meeting to explain the new procedures set forth in the Administrative Order on - Date: May 15, Time: 2:00 p.m. - Location: Jury Assembly Room Main Courthouse, 1st floor 205 North Dixie Highway West Palm Beach, Florida. - Everyone is invited to attend. - For more details as to the order at issue, go to documents/10179/15127/3.315.pdf Bankruptcy Committee Luncheon by John E. Page On April 8, the Bankruptcy Committee held a luncheon with a distinguished panel of four federal bankruptcy trustees, Robert Furr, Deborah Menotte, Margaret Smith and Marc Barmat. The panelists had diverse backgrounds and areas of expertise, which generated a fluid discussion of several interesting areas. Topics included practice pointers for bankruptcy practitioners, assets that trustee s routinely pursue and acts that will cause bankruptcy trustee s to challenge an individual s privilege of obtaining a discharge of debts. We encourage local bankruptcy and non-bankruptcy practitioners to attend our next event, a brown bag lunch scheduled for May 13, 2015 at the South County Courthouse from 11:45 am 1 pm where we will be discussing the interplay between bankruptcy and family law. John Page and Marc Barmat 25

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27 Domestic Violence In The Least Expected Places by Robin Caral Shaw Many attorneys, particularly those who litigate, have attended mediation. Many attorneys as well as former judges and people in other disciplines have taken mediation training. What surprises some people on the road to becoming Certified Circuit Civil Mediators is the requirement to take a minimal number of Continuing Mediation Education (CME) hours of Domestic Violence training. The three scenarios below bring this requirement into the realm of common sense for mediators, and should be taken into consideration by attorneys in their client representation. First scenario: A husband and wife are injured in a car accident and appear at mediation. The wife won't speak until the husband nods his consent, and she won't take her eyes off him while she's talking. What you may be witnessing is the control the husband exercises over his wife, typical in an abusive relationship. On the other hand, what you see may be a simple case of nerves which will pass as the mediation continues. Whether you are an attorney representing a party or the mediator, you should be aware of the behavior of the couple and observe their behavior as the mediation progresses. Why? Well, whose testimony is it anyway? If she's not trusted to share her opinions and viewpoints, how reliable is her testimony? Is the case being compromised by the abusive control exercised by one spouse over the other? What should an observant mediator (or attorney) do? If the mediator sees that kind of behavior, perhaps she should speak privately with the couples' attorney to learn whether he'd seen this aspect of their relationship in prior meetings with them. If there is adequate evidence of the circumstances of the accident, injuries caused, and expenses incurred, perhaps the statements of the parties in mediation may not be of much importance. The mediator might wonder whether the attorneys are aware of the coparties' behavior and how they are interpreting it. The normal response is to turn away or ignore less acceptable behavior. While that's fine at the dinner table, it may have a profoundly negative impact on a mediation or negotiation. If the mediator is alert enough to identify potential domestic abuse, and if there appears to be enough objective evidence for the mediation to continue, perhaps pursuing "better" testimony from the wife isn't necessary. A controlling spouse may feel threatened by the actions or statements of the mediator or attorneys, and may take out his fear on the spouse once the mediation is over. Separating the couple may make it worse, prompting the husband to be suspicious of the conversation taking place outside his hearing. Attorneys and mediators should be aware of the harm they may do by pushing a potential victim of domestic abuse. A mediator shouldn't ignore the dynamics in front of him or her nor should he or she feel obligated to address the situation. As with so much of mediation, it introduces another element to be recognized, evaluated, managed, and incorporated into the process and possibly discussed with counsel if attorneys are involved in the matter. Second scenario: Brother and sister business owners are negotiating the sale of their business. The brother is continually and aggressively demeaning and interrupting the sister's conversations with the buyer and/or his attorney. In this case, if the attorney for the buyer sees this repeated behavior, wouldn't he begin to doubt the accuracy of the facts and figures provided by the sellers? Wouldn't he begin to suspect that he's not getting truthful information and wonder about their motivation for wanting to sell the business? What should an observant attorney do? If the attorney has doubts, perhaps he or she should speak privately with the sellers' attorney to learn more. Of course, it's possible that there is no attorney representing the sellers at this time, or that the attorney hasn't met his clients but only spoken with them by phone and/or . It's also possible that the attorney isn't attuned to the dynamics between the brother and sister. Does it matter? Is there sufficient qualified documentation of the value of the business to discount the personal issues between the brother and sister? It often does matter if either party wants to remain involved in the business. It often does matter if the goodwill of the business is associated with one owner. It often does matter if it affects the ability to actually complete the sale transaction. In my transactional practice, squabbling sellers have been the single most destructive force in the negotiations. If the deal is completed, the detritus of that negative relationship often carries over into the new owner's business doing harm not previously uncovered. All in all, the more aware buyer's counsel is, the more due diligence done, the less likely the dysfunctional relationship of the sellers will be of consequence. Ignoring the warning signs can be fatal to the deal. Third scenario: A deposition is being taken of an elder in an elder abuse or capacity case. If the caretaker/daughter is accused of abusing her father, or if the daughter has brought the question of the elder parent's capacity into question, attorneys and mediators must realize how complex the psychodynamics are of both the relationship and the case. The accuracy of the testimony will often be called into question, but the ability to provide clearly objective evidence is less likely. For example, if an elder has his daughter prepare checks for his signature, who can say with certainty that one or more of the checks were not written at the specific request of the father? Or in the amount specified? Or for a legitimate purpose? How valid would the testimony be of the daughter's husband who was present when the checks were being signed? This calls to mind not only the multi-millionaire Brooke Astor estate tampering case brought against her son that received a great deal of publicity over several years, but also of the smaller estates of the elderly where relatives or caretakers may take financial advantage of and may also abuse the senior. Conclusions: What you do may vary with each case. Without some thoughtful analysis, a matter may be made worse by either confronting or ignoring it. What's important is that both attorneys and mediators be aware of the dynamics of the relationship between coparties, assess whether those dynamics affect the matter under discussion, consider to what extent the business aspects of the matter are independent of those dynamics, and proceed with an awareness of that extra element of the case. While neither mediators nor counsel are responsible for "fixing" the interpersonal relationship of co-parties to a controversy, it should be recognized, taken it into consideration, and its relevance balanced against available facts, evidence, and testimony. It's not an easy road -- but it surely justifies having a CME Domestic Violence requirement for Circuit Civil Mediators, and should also be considered by non-family law attorneys in client representation. Robin Caral Shaw is a Certified Circuit Civil, Appellate, and Family Mediator, Lecturer and Assistant Circuit Civil and Family Mediation Trainer and Appellate Mediation Specialist. 27

28 Why are Attorneys Afraid of Conflict in Mediation? by Jeffrey Grubman The mediation process has evolved significantly over the past few decades. Mediation was initially viewed skeptically by trial attorneys who envisioned themselves as warriors ordained to try cases rather than settle them. Those same trial lawyers believed that if settlement was appropriate, they certainly did not require the assistance of a third party to effect the settlement. They would pick up the phone and call their opposing counsel and either work things out on their own or try the case. As courts throughout the country become overburdened, mediation became a popular forum to resolve disputes. Many courts throughout the country require cases to be mediated before the case can go to trial. Consequently, attorneys have been forced to participate in mediation. Because trial attorneys were not accustomed to the mediation process, the process initially looked somewhat like a court hearing or a trial. For example, in the early days of mediation, opening statements in mediation looked and sounded very much like an opening statement at trial. Trial lawyers in the early days of mediation, and some trial lawyers still today, had a difficult time finding the balance between advocating their clients position while proceeding in a conciliatory manner with settlement being the goal of the mediation. Largely due to attorneys discomfort with finding that balance, it became commonplace in many parts of the country for attorneys not to make opening statements in mediation. This trend has even gained popularity in Florida. The decision by an attorney not to make an opening statement in mediation is often a wasted opportunity, because this is typically the only opportunity during the course of a litigation for an attorney to speak directly to his or her opposing party. A well prepared and delivered opening statement goes a long way towards achieving a favorable settlement for one s client. The custom of not make opening statements in certain parts of the country and in certain substantive case types has now sometimes led to skipping an initial joint session all together. Except in the rare situation where there is the potential for violence, this is a mistake. The parties and their counsel should at least be willing to sit in the same room with one another for some period of time while the mediator explains the process and lays the groundwork for a productive day. When there is a joint session, many attorneys instruct their clients not to say anything during that session. These attorneys apparently believe either that their clients will say things that could hurt the client s case or the client or the adversary will say things that could upset the other person and thereby make it harder to settle the case. The confidentiality that blankets the entire mediation process should ameliorate an attorney s concern about his or her client saying something that could hurt the case. The fact that a litigant may say something that will upset the other party is not enough of a reason to prevent parties from speaking. First, the fact that the parties are engaged in litigation is evidence enough that the parties are not happy with one another. Nobody should be surprised or devastated when one of the parties says something the other party does not like. More importantly, many people want their voices heard not just by the mediator (who they usually have never met before the day of the mediation), but by the party with whom they are litigating. This is particularly true in situations where the parties had a preexisting relationship, such as partners in a business or competitors. I have found joint sessions extremely helpful either with or without the attorneys present where the parties are encouraged to speak directly to their opponents. I can think of countless mediations where the parties met in caucus and negotiated through the mediator for hours and the case then settled during or shortly after a direct meeting with the parties. Nevertheless, many attorneys feel uncomfortable with the conflict that sometimes arises from these direct communications. Hopefully, the next time an attorney reading this article gets that uneasy feeling when the mediator suggests that the parties speak directly to each other, he or she will give it a try rather than viscerally reject the idea. Jeffrey Grubman is a mediator and arbitrator with JAMS. He is based out of the Boca Raton and Miami offices but mediates cases nationally. His practice focuses on securities/financial services, commercial/business, employment, and intellectual property. The following is a link to his bio: The information contained in this article does not constitute legal advice and are his opinions and not the opinions of JAMS. Jeffrey Grubman is a veteran ADR professional who has served as a mediator in approximately 1,000 cases in 24 states, the District of Columbia, and Puerto Rico in a wide variety of complex cases, including class actions and high impact, multi-party matters. Mr. Grubman works tirelessly to settle every case he mediates, employing a variety of creative settlement techniques. He joined the JAMS national panel in

29 Newly-Entered Standing Order On Discovery Motions by Mark Osherow On April 16, 2015, Judge Richard Oftedal, Circuit Judge, Foreclosure Division "AW" entered a standing order on procedures for outstanding motions on non-evidentiary matters and objections to discovery. The standing order generally provides litigants up to 60 days to secure hearings on nonevidentiary motions or face a ruling based solely on the filings. In addition, the court may set hearings on motions pending for 45 days or longer. Memoranda cannot exceed 25 pages unless an order granting a higher page limit is entered prior to the 60th day from the filing of the motion. The full text of the standing order can be found at standingorderdivisionaw.pdf SPBCBA-Sponsored Gift Gathering Gala To Support Legal Aid by Robert A. Bertisch, Executive Director, Legal Aid Society of Palm Beach County, Inc. On March 22, 2015, the South Palm Beach County Bar Association and the law firm of Isaacs Reid, P.A. hosted over 50 adults and children at the Schoolhouse Children s Museum and Learning Center in Boynton Beach in support of the Legal Aid Society of Palm Beach County s 27 th Annual Pro Bono Recognition Evening to be held on Saturday evening, May 9 th, 2015, at the Palm Beach County Convention Center. Families enjoyed yoga, Disney characters, games, storytelling and delicious sandwiches and treats at the museum as well as donating gifts to Legal Aid s silent auction. Denise Isaacs (left) and Andrea Reid (right) Parker Pressly and Grier Pressly Abby Beebe and Jon Beebe 29

30 Sheriff Bradshaw Speaks at Luncheon by Andrew M. Dector On April 14, 2015, Sheriff Ric Bradshaw spoke at the Association s monthly luncheon. The Sheriff has had a long and distinguished career in law enforcement spanning 43 years. As Sheriff, he oversees the largest law enforcement agency in Palm Beach County with over 4000 employees and approximately 5500 volunteers. At the luncheon, Sheriff Bradshaw addressed three current topics including the use of body cameras and whether or not they would have had any effect on the outcome of events in places such as Ferguson, Missouri, Cincinnati, New York and South Carolina. The Sheriff also addressed the controversy surrounding medical marijuana. The third topic discussed was the state of homeland security in South Florida and in particular, Palm Beach County. With respect to body cameras, Sheriff Bradshaw suggested that they because they only photograph in a two dimensional manner and fail to take into account many other factors facing a law enforcement officer during an incident, they are not very useful. To put a halt to the recent incidents involving police shootings of unarmed suspects, the Sheriff suggested that law enforcement officers put more distance between themselves and suspects and slow down events as best possible to be in a better position to assess the situation and secure more law enforcement assets. As for medical marijuana, the Sheriff, along with the Florida Sheriff s Association, is opposed to its legalization. The Sheriff cited to studies which found that there was a 50 percent increase in juvenile incidents and traffic fatalities in those states where medical marijuana is legal. Lastly, the Sheriff informed the membership that regardless of whether or not the Department of Homeland Security is shut down, South Florida is protected. First, the Palm Beach County coastline and for that matter the South Florida coastline is one of the only ones in this country covered by coastal radar. More importantly, the Palm Beach County Sheriff s Department has deputy posted in the Washington, D.C. area at a national homeland security monitoring center who reports directly to the Sheriff. Marc A. Kaufman, Sherriff Ric Bradshaw, Mark Osherow 30

31 On April 27th over 45 members and guests participated in the SPBCBA s Annual Golf Tournament held at the Boca Country Club. This year s a portion of the proceeds benefited the Palm Beach County Legal Society. After a round under perfect weather, the contestants were treated to a dinner and happy hour sponsored by Joel M. Weissman, P.A. The winning foursome was from Palm Beach Legal Aid. Daniela Gordon won the contest for coming closest to the pin, sponsored by Alpine Jaguar and Jeff Sarrow was the winner of the putting contest, sponsored by Assouline & Berlowe. Thanks to Alpine Jaguar, there was a Hole In One contest for a three year lease of a Jaguar. The Bar Association would also like to thank the following firms and companies for their generous sponsorship of this great annual event Sajdera Morris, Akerman, A Better Process, Mark A. Kaufman & Associates, Gold and Gold, P.A., Shraiberg, Ferrara & Landau, P.A., Brenner Real Estate Group, Raymond James, The Law Offices of Robin Bresky, Greenspoon Marder Law and Steinberg Garellek. 31

32 6th Annual Nuremberg Luncheon by Robert A. Bertisch, Esq., Executive Director, Legal Aid Society of Palm Beach County, Inc. On April 17, 2015, Temple Beth-El of Boca Raton, in partnership with the South Palm Beach County Bar Association and Lynn University, pr esented the 6th Annual Nur ember g Luncheon at Temple Beth-El. Over 300 individuals attended this inspirational event. This year s luncheon honored former Connecticut U.S. Senator Christopher J. Dodd with the Marilyn and Jay Weinberg Rule of Law Award. The senator shared with the audience his father s recollections as the leading attorney at the Nuremberg trials held in Germany after World War II and explained how his father s experiences impacted his future as a U.S. Senator. He collected these memories in his book, Letters from Nuremberg: My Father s Quest for Justice. The recipient of the 2015 Civility Award was retired Judge Ron Alvarez in recognition of his outstanding tenure as a circuit court judge in Palm Beach County s Juvenile Division. As a juvenile court judge, he always ensured that the state s Department of Children and Families protected the health, safety and welfare of the abused, neglected and abandoned children who came before him. His passion for the children he served both inside and outside of the courtroom was an inspiration to the entire legal community. The inspiration behind the Annual Nuremberg Luncheon is Rabbi Jessica Spitalnic Brockman, who has organized and coordinated the luncheon for the past six years. Christopher Dodd, Mark Osherow Ron Alvarez, Christopher Dodd 32

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34 YLS Joint Happy Hour by Mitchell W. Goldberg On February 26, 2015, the Young Lawyers Section of the South Palm Beach County Bar Association held a joint happy hour with the Young Lawyers Section of the Palm Beach County Bar Association at Saltwater Brewery in Delr ay Beach. Members of both respective sections enjoyed craft beers and food trucks on site while taking the opportunity to network and meet other attorneys in the area. There was a great turn out from both section and a good time was had by all! On April 22, 2015, YLS held is annual Bowling Bonanza at Boca. All proceeds from the event were used to benefit the Legal Aid Society of Palm Beach County. A great time was had by all! (L-R) Colleen Hoot, Chris Sajdera, John Page, Bob Bertisch, Michael Liss, Sean Lebowitz, Russell Greenstein from Milemark Media), Taryn Sinatra, Scott Weiss 34

35 ELECTRONIC DISCOVERY BASICS (PART II): ESI COLLECTION, ANALYSIS AND PRODUCTION by Mark R. Osherow Technology is critical to obtaining, collecting, analyzing, sorting, searching and delivering ESI. This includes methods for analyzing metadata, and tagging data for categorized review. Understanding both data review and production concepts is critical. Consideration must be given to whether ESI should be produced in native format or in some other format that also provides associated metadata. Metadata can be added to populate specified fields to aid in sorting and review. After ESI has been obtained, it may be uploaded to a review platform. The ESI is subjected to optical character recognition (OCR), sorted, and made available for review. The data can then be searched, culled, tagged, and reviewed. A review of associated metadata may also be involved, given the parameters and litigation issues. With some review platforms, key phrases, contextual groups, directory information and categories, and clusters can be specified and used to filter data. Issue coding or key phrase coding can also be performed. Specific categories of documents can therefore be identified. A protocol should be implemented to ensure that reviewers categorize ESI pursuant to the same tagging procedures. A specific protocol and supervision ensures consistency. SEARCHING, CATEGORIZATION AND PRODUCTION OF ESI Searching by contextual groups can be a useful analytical tool. threads, including attachments to s, are an example of a contextual group. Searching by directory information such as dates, names, addresses, and other parameters can result in the production of a dataset that reflects interrelationships in a particular document group. Category and cluster searching can also assist in the identification of material ESI. Category searches include searches by author, date created or modified, or other criteria. Clustering includes and attachments, or groups of document types that are related. Visualization tools also assist with understanding categorized ESI. Visualizations use a social network analysis, a context group structure analysis, or a topical cluster analysis. Social networking analysis maps the relationships between people, groups, and organizations and visually demonstrates the flow of information between these groups. Context group analysis looks at a context group such as an thread, and maps the flow of information between the senders and recipients in a visual fashion. Cluster analysis visually identifies relationships typically based on keywords or phrases. Based on the volume of materials identified, the researcher may decide the analysis should proceed further to investigate a particular group of documents. Bar graphs may identify a word, a date, or other category across a document group which focuses the initial inquiry on the area that seem to have the greatest potential for productive discovery. An analysis strategy using available tools can enhance understanding of a particular case. Under the current landscape, attorneys need to know about ESI platform review tools in most circumstances to enhance the ability to rapidly address what is or is not relevant to a particular case. Failure to use available techniques can result in the inadvertent production of too much, irrelevant or privileged or confidential information. In some circumstances, the lack of understanding of the tools will comprise the ability to understand and review critical data. Knowledge of ESI techniques is becoming mandatory for attorneys in many states, and could well be required in Florida in the near future. Competency in some areas of practice may already require such fluency. Having completed the analysis and culling of documents, ESI will be ready for production. In advance of production, certain redactions may be appropriate or required. The documents will general also be electronically numerically tagged for identification. In the old days, this was done by "bates stamping". Now this task is handled electronically. The above techniques can also be utilized to further analyze and segment documents produced by an opponent. CLAWBACK AGREEMENTS Even with sophisticated tools, and methods, the volume of ESI typically reviewed heightens the risk of inadvertent disclosure of privileged documents. Therefore, at the outset a written clawback agreement should be utilized to protect all parties. Ideally this issue will be addressed at an initial meet and confer conference and an appropriate clawback agreement executed, and 35

36 ordered by the court, where necessary or required. FORMAT In addition, the methods and forms of production must be addressed. Under Florida Rules of Civil Procedure and Rule 34 of the Federal Rules of Civil Procedure, the requesting party may specify the desired form or forms of production for identified categories of information. Generally, if the party fails to make such a request, the information must still be produced in a form or forms in which it is ordinarily maintained or is reasonably usable. Most documents are either provided in native format, TIFF or PDF, or a combination of formats. PST (Outlook) files and text messages are now also becoming common. The process of producing electronically stored information is time consuming and the parties should attempt to negotiate reasonable production schedules often with rolling production where appropriate. Use of a third-party vendor to host data, provide a review platform, and to make the ESI available, either by export or at a "cloud" based location, should be considered. While there are significant charges involved (and these should be considered carefully), use of a third party to handle ESI, can reduce costs, relieve use of personnel, and provide for a clear chain of custody, and other considerations. Also, the cost can be apportioned among several parties. Use of search tools may also provide a level of consistency in working with the ESI, which may facilitate collaboration. There are also tools now available that can be used in smaller matters. EDiscovery technology is no longer solely the province of large firms or Fortune 500 companies, and their counsel. Parties should monitor costs carefully, and not necessarily accept a particular vendor's cost structure where the costs appear excessive relative to the actual value of the storage and platform services provided. Fortunately, as the legal profession has adapted to the reality of the electronic workplace, costs have come down both because of the business economics, and the demands and increasing sophistication of the marketplace. Mark R. Osherow is Of Counsel with the statewide law firm Broad and Cassel in its West Palm Beach office. He is board certified as a specialist in business litigation by The Florida Bar and is currently the President-Elect of the SPBCBA. Available technologies should be considered to analyze ESI, and to identify discoverable and producible information. Through the use of available technology, litigants and their counsel can successfully and costeffectively manage the large volume of data that today exists only in electronic format. 36

37 Gladstone & Weissman, P.A. Welcomes New Partner Taryn G. Sinatra Marital and family law firm Gladstone & Weissman, P.A. Principals Peter L. Gladstone, Esq. and Jeffrey A. Weissman, Esq. are pleased to announce that Taryn G. Sinatra, Esq. has joined the firm as a partner, effective April 20, In the last five years, Sinatra practiced marital and family law as a sole practitioner at the Law Offices of Taryn G. Sinatra, P.A. in Delray Beach. Prior to opening her own practice, she was an associate attorney with a small firm in Boca Raton, focusing her practice on marital and family law. From , she served as an assistant state attorney in Broward County, prosecuting various crimes from misdemeanors to first degree felonies. Sinatra is admitted to The Florida Bar, and is a member of the Palm Beach County Bar Association, South Palm Beach County Bar Association, South Palm Beach County Chapter of Florida Association for Women Lawyers, and the Young Lawyers Section of the South Palm Beach County Bar Association. Julia Wyda Joins Brinkley Morgan Brinkley Morgan, a full-service South Florida law firm established in 1975, has announced that attorney Julia Wyda has joined the firm s marital and family law practice group as an associate. Wyda is an active member of the Family Law Section of the Florida Bar, serving as Co-Chair of the CLE Committee from and currently serving as Vice Chair of the Publications Committee and as a member of the Executive Council, Alternative Dispute Resolution Committee, Equitable Distribution Committee, Legislation Committee, and Support Issues Committee. She is also an Officer of the South Palm Beach County Collaborative Law Group and a member of the Palm Beach County Chapter of the Florida Association for Women Lawyers, the South Palm Beach County Bar Association, and the Palm Beach County Bar Association, where she served as President of the Young Lawyers Section from and currently serves on the Board of Directors. 37