MIAMI-DADE JUSTICE ASSOCIATION

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1 MIAMI DADE MIAMI-DADE JUSTICE ASSOCIATION JUSTICE ASSOCIATION Editors: Arthur Garcia, Jr., Andrew Moss Winter 2009 President s Message It is now well-known that the influx of foreclosure cases has placed a tremendous strain on our court system and on the individual judges who have seen their caseloads multiply exponentially. In the past few months Manny Dobrinsky Chief Judge Joel Brown and Judge Jennifer Bailey, the Administrative Judge for the civil division, have implemented procedures to ensure that courts remain responsive to all litigants, and it is obvious that their efforts are paying great dividends. We as trial lawyers have a responsibility as well to ensure that the system is not unduly taxed. Prior to setting matters for a hearing, we need to make every effort to try and resolve our differences with opposing counsel. Once hearings are set, it is important to call chambers and let them know if the matter is ultimately resolved without the need of court intervention. I am amazed to hear judges lament how many times lawyers do not call and do not show up for special-set hearings. This type of behavior by lawyers contributes to the problem when we should be part of the solution. We need to help our judges get through their motion calendars as efficiently as possible. Finally, on a completely different note, our membership and board is comprised of extremely hard-working and dedicated attorneys. However, our organization as a whole and our board need to become more diverse. Thus, I encourage women and minority trial lawyers to become actively involved in our organization. The relationships we develop with the judiciary and the sense of satisfaction from the community service work we do is rewarding and well worth the effort. I also urge all our members to recruit minority members to join our organization. We need to become more diverse. On behalf of the Board, I wish all of you happy holidays and as always, a heartfelt thanks to our judiciary for all of their hard work and dedication. Thank you MDJA Members Inside this Issue: By Arthur Garcia Jr. If there is ever a time to thank you our members for your commitment to MDJA it is now. During economically challenging times, the first to be harmed are the most vulnerable in our community. When meeting your obligations to our organization, you enable your organization to follow through on the promises made to our community. Thanks to you, we have continued to sponsor and serve dinner at the Community Partnership for Homeless (photographs inside this issue). We have honored our promise to the children at Jackson Memorial Hospital s Pediatric Hematology and Oncology Departments. They have new entertainment systems and games and have gift certificates so they may purchase Birthday treats and cakes and for the few celebrations of milestones in their treatment. On behalf of the children at JMH and your Board of Directors, we THANK you! I am writing to express my sincere appreciation... The WII entertainment systems will help provide a social dimension for patients having an otherwise trying experience... the gift cards will aid in the celebration of milestones in patients lives and treatment process. Please share our tremendous gratitude. Sincerely, Aubree Thomas Child Life Program, Holtz Children s Hospital Justice James E.C. Perry Justice Jorge Labarga A View From the State Bench June 2009 Judicial Reception 1 Public Service

2 MDJA Board of Directors Executive Board Manuel L. Dobrinsky President Arthur Garcia, Jr. President-Elect Doug Eaton Treasurer Stephen Marino, Jr. Secretary Dan Dolan II Immediate Past President Yara L. Garcia Executive Director Board of Directors Join us on December 15, Annual Membership Elections Sponsored by THE BANK OF MIAMI 900 Biscayne Building 900 Biscayne Blvd. Miami, FL 5:30 p.m. Holiday festive attire Hors d oeuvres & cocktails Members only please Presidential Ball Gabrielle D Alemberte Stephen Cain Sean Cleary Douglas McCarron Andrew Drew Moss Judd G. Rosen Anthony Soto February, 20, 2010 The Ritz Carlton, Coconut Grove Carrie Feit John Gravante James Hannon T. Omar Malone Sagi Shaked William Wolk Please RSVP at: executivedirector@miamidadejustice.org

3 Cases of the Month Segundo v. Reid, No. 3D , 2009 WL (Fla. 3d DCA 9/30/2009) The Third District reversed an award of attorneys fees to the plaintiff pursuant to a proposal for settlement, apparently carving out a new exception in and Rule The Court s opinion describes the case as unique but nevertheless everyone should be aware of it as there no doubt will be efforts to expand its reach. The court held that, because at the time of the proposal neither the plaintiff nor the defendant was aware of additional injuries resulting from the accident, which ultimately resulted in a verdict well in excess of the proposal, the trial court abused its discretion in awarding fees. The plaintiff was injured in an automobile crash when the defendant ran a stop sign. The medical records showed that the plaintiff complained of neck, back and shoulder pain, and noted that his shoulder was swollen, but the doctor treated only his neck and back pain. Two months after the accident, the plaintiff was treated in the emergency room for a shoulder dislocation, which was attributed to a slip and fall. Plaintiff suffered another shoulder dislocation after that. During discovery, the plaintiff referred only to neck and back pain. The court emphasized that the plaintiff acted in good faith and did not engage in gotcha tactics. Plaintiff served a proposal for settlement offering to settle for $10,000, which defendant rejected. Several months later, the plaintiff s attorneys obtained a continuance so they could determine whether the shoulder dislocation related to the car crash. After a doctor issued a report stating that it was related, the plaintiff s attorneys gave the defendant another opportunity to settle for $10,000, in a letter which was not a statutory proposal for settlement. The defendant rejected the offer. The plaintiff beat the offer at trial. The trial court awarded fees, but the Third District reversed. First, the Third District rejected the defendant s argument that the proposal was not made in good faith, noting that when the plaintiff made the offer he had a reasonable foundation for it. However, the court pointed out that (7)(b) allows the court to consider all other relevant criteria in determining the reasonableness of an award under the statute. The court held that the record demonstrated that, prior to the proposal for settlement, the plaintiff did not provide the defendant with any information indicating that the plaintiff would be seeking damages for a shoulder injury. Although it does not appear that the verdict itemized the damages attributable to the different injuries, the court deduced from the award, the evidence and the closing arguments that most of the damages awarded were for the shoulder injury, and without it the plaintiff would not have beaten the offer. Thus, to require the defendant to pay attorney s fees as a sanction for unreasonably rejecting the plaintiff s proposal for settlement would penalize the defendant for damages not pled nor proven until after the proposal for settlement was rejected and permit the plaintiff to benefit from the changing nature of his claim after the proposal for settlement expired. The court emphasized that the plaintiff acted in good faith and did not engage in gotcha tactics. For decades, courts have denied relief from settlements even though the plaintiff subsequently learns of additional damages attributable to the incident of which they were not aware when they settled. DeWitt v. Miami Transit Co., 95 So.2d 989 (Fla. 1957). In my opinion, this decision may be inconsistent with that general principle. Moreover, the defendant had an opportunity to settle for the same amount after learning about the shoulder, and still declined, so the equities do not appear to be entirely with the defendant. Finally, the Florida Supreme Court held in TGI Friday s, Inc. v. Dvorak, 663 So.2d 606 (Fla. 1995) that the statute requires that fees must be awarded regardless of the reasonableness of the rejection of a proposal for settlement. The reasonableness of the rejection may be considered in determining the amount but it is irrelevant to the question of entitlement. The factors listed in (2)(b) should be considered only in the determination of the amount of the fee to be awarded 663 So.2d at 613.

4 A View From the State Bench

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6 2009 Judical Reception

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8 Thank you to our 2009 Judicial Reception Corporate Sponsors and Firm Sponsors Corporate Sponsors Affiliated Healthcare-Barry Burak, D.C. Barry Burak, D.C. Brumm Vega & Associates, Inc. Champion Legal Graphix & Video Delta Group Delta Settlement Solutions Esquire Corporate Solutions Focus Trial Injury Funds Now Millennium Settlements, Inc. Physicians Medical Review-Peter Schosheim M.D. South Florida Pain & Rehabilitation Taylor Janovic White, Gendron & Kircher-Echarte Term Funding, Inc. The Bank of Miami The James Street Group Unlimited Languages Verasys, LLC Veritext Florida Court Reporting Vocational Economics Inc.-Anthony Gamboa Ph.D. Firm Sponsors Alan Goldfarb P.A. Biondo Law Firm Deehl & Carlson P.A. Dolan Law Firm Feiler & Leach P.L. Freidin & Dobrinsky P.A. Friedland Law Group Goldberg & Rosen Grossman Roth P.A. Hannon & Boyers, P.A. Homer Bonner P.A. Josephs Jack Kozyak Tropin & Throckmorton P.A. Kutner Rubinoff & Moss Lauri Waldman Ross, P.A. Law Offices of Arthur Garcia Jr. P.A. Law Offices of Robert L. Parks, P.L. Law Offices of Robert Rubenstein P.A. Malone Law Firm Michael S. Olin P.A. Personal Injury Legal Team Pita & Del Prado P.A. Podhurst Orseck P.A. Ratzan & Rubio P.A. Rossman Baumberger Reboso Spier & Connolly Shaked Law Firm Slawson Cunningham Whalen & Gaspari Stephen A. Taylor P.L. Stewart Logan P.A. Stewart Tilghman Fox Bianchi The Haggard Law Firm Ver Ploeg & Lumpkin P.A.

9 Special Honors MDJA Honors Judge Margarita Esquiroz and Judge Manny Crespo by Andrew Moss At the Miami Dade Justice Association s annual Judicial Reception, our organization was proud to present the Hon. Margarita Esquiroz with the 2009 Justice Harry Lee Anstead Award. The award is given annually to a judge who consistently demonstrates the essential ingredients of professionalism, character, competence, and commitment. Judge Esquiroz became Florida s first appointed female Hispanic judge in 1979, following her tenure as an assistant attorney general. Then, in 1984, she was elected to the bench as one of the few Hispanic circuit judges at the time. She is a graduate of the University of Miami School of Law, where she graduated in the top ten percent of her class. After 30 years on the bench, Judge Esquiroz has earned the recognition of her peers and the bar. The Miami Dade Justice Association is proud to recognize her with the Harry Lee Anstead Award. As an indication of how much the late Hon. Manny Crespo meant to our legal system, the Miami Dade Justice Association has created an award in his honor. Fittingly, the award recognizes Judge Crespo as a champion of the legal profession; a compassionate, fair and respectful jurist; and a selfless mentor known for his indomitable spirit and energy. Any attorney who had the opportunity to appear before Judge Crespo undoubtedly would agree that he deserves this recognition. At our 2009 Judicial Reception, the Miami Dade Justice Association was honored to present the first Manny Crespo Award to Judge Crespo s family, which was accepted by his son Manny Crespo, Jr., who was fortunate to have practiced law with this father. Manny Crespo Jr. (pictured to the right, alongside his mother, Aracely Crespo and Ana Fernandez; his late father's J.A., had these heartfelt words to say: On behalf of the entire Crespo family, I thank the MDJA for recognizing the late Hon. Manny Crespo. We are continuously humbled by all the recognition we have the honor of receiving on his behalf. He loved his family, colleagues, profession and community immeasurably. The return of that love upon his passing has been a tremendous comfort to us. It has also served personal inspiration to me, as his proud son and colleague, to keep his good works and legacy alive through service to the community and bar. Manny Crespo, Jr.

10 Honoring Justice James E. C. Perry

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13 Honoring Justice Jorge Labarga

14 P U B L I C S E R V I C E P U B L I C S E R V I C E

15 P U B L I C S E R V I C E P U B L I C S E R V I C E

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18 Members: Please take a few moments to add to your favorites the new Member Services link: The MDJA website is accessible and available to all MDJA member benefits is exclusive and for members only Activate your account Pay & future membership dues on line Upload depo transcripts, legal forms, and more! Why put your client s future in the hands of the defendant? Insist on using a dedicated plaintiff organization. Insist on The James Street Group. We become your unpaid advisor Innovative settlement techniques Settlement conference attendance Access to the highest rated annuity companies Medicaid conservation planning You do have a choice when it comes to structured settlements. THE JAMES STREET GROUP STRUCTURED SETTLEMENTS (800)

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20 MIAMI DADE JUSTICE ASSOCIATION Miami Dade Justice Association 8004 N.W. 154 Street, #561 Miami Lakes, FL prsrt std U.S. postage paid permit # 5306 miami, Florida Design and Printing by E Grafix Plus, Inc