New Nursing Home Bill in Florida (HB 661)

February 9th, 2011
A bill was filed yesterday in the Florida Legislature which, if passed, would dramatically change nursing home litigation in Florida as early as July 2011.  The text of HB 661  is here.   It was filed by newly-elected representative Gaetz, a 28-year old lawyer from the Panhandle.
Some highlights:
* evidentiary hearing would be required before a cause of action could be asserted (candidly, this would be procedurally unusual and would apparently be a requirement in addition to pre-suit)
*  plaintiff elects wrongful death or survival damages 60 days prior to trial
* non-economic damages capped at $250k regardless of # of survivors
* leave for punitive requires a proffer of admissible evidence; court would actually weigh competing evidence and not just take plaintiff’s proffer
* for punitive damages, a corporate defendant would need to actively and knowingly participate in conduct by a specifically-identified employee and contribute to damages
* once leave for punitives are granted, 50% of any settlement goes to the Quality of Long Term Care Improvement Fund BEFORE plaintiff lawyer takes percentage
* complinace with minimum staffing requirements can lead to presumption of appropriate staffing
* surveys are not admissible unless it involves the resident-at-issue in the case.

New Southern District of Florida Local Rules (Administrative Order 2011-5)

February 7th, 2011

If you practice in the US District Court for the Southern District of Florida, be aware of the new Amendments to the Local Rules, found here.

Some notable revisions:

1.  Per Rule 5.1, just about anything and everything can be e-filed.

2.  Per Rule 7.1, you do not file a motion and a memorandum of law.  The memo is deemed incorporated.

3.  Admiralty Rules are heavily re-numbered.

Rules take effect April 15, 2011.

Six (Free) Steps to Virus-Protect and Clean Your PC

January 31st, 2011

The article, “Clean Your PC in 30 Minutes,” recently ran in the February 2011 Palm Beach Bar Bulletin.  It provides simple advice for lawyers, office managers, and paralegals on how to “clean” your PC, using free software, and to keep it running without viruses and malware at no cost.  

Whether you bought a new PC for the holidays, need to clean out the old one or perhaps switched jobs and have a “new” computer, this will fine tune any machine without cost… and it takes about a half hour.

OJ Simpson is Innocent (so says former Florida defense lawyer)

January 10th, 2011

Former Florida lawyer F. Lee Bailey drafted a 50-page manuscript describing, more than 15 years after the event, why O.J. Simpson was not guilty of murder.

The timing and overall purpose for the document is unclear.  According to his website, Bailey runs a consulting service where he provides various law and public relation-related services.

The document itself reads as if it is a rough draft of something. Bailey references that it might become a book.  It does not read as if it is a polished, finished project.  While memories of the details of the case have likely dimmed for all but devout followers of People vs. Orenthal James Simpson, Bailey’s defense of OJ generally involves citing witnesses who never testified.

Unless you are already convinced that the verdict was correct, the author fails to convincingly address bloody gloves which were separated and found at the scene and Simpson’s home; the period of time (admittedly tight) where the murder could have occurred; Simpson’s dubious involvement in the “If I Did It” book; and the instances of mixed blood specimens.  There are sections where Bailey confronts some of the blood evidence (the only alternative explanation is that it was planted by the police) however the treatment is too brief and the conclusions are tinged by a one-sided, defense-lawyer-tone.   It is unlikely that the text, as is, will lead to wholesale change of readers’ minds.

He does have some interesting opinions/overview of Rules of Evidence and he sits in a unique position to comment on witnesses, both testifying and those who never made it.

Interesting but somewhat untimely reading unless you are a fan/foe of Simpson or Bailey.  That said, it is a free and quick read which you can find here.

Can You Post a Deposition to YouTube?

December 29th, 2010

Is the practice of uploading portions of depositions to YouTube as “widespread”?  Do you have the technology in your office to edit and post depos?  Will your ethics rules or judge allow it?  

Take a look at this December 2010 Palm Beach Bar Association “Bulletin” article for some answers.

Hit this link or click on “2010 Depositions on Youtube” under Articles along the right column of this site.

Florida Paralegal Ethics

November 10th, 2010

Thanks to the Paralegal Association of Florida for inviting me to speak at their 2010 Fall Seminar in West Palm Beach.

The powerpoint can be found here or using the link under “Materials” on the right column of this website.

The free legal ethics iPhone app is here.

No Email Friday?

October 28th, 2010

Thanks to the Palm Beach Bar Bulletin for running the article, No Email Friday?

Find yourself checking emails endlessly?  Being pinged by your cellphone, laptop, and PC?  Checking your iPhone at night or Blackberry in the a.m.?  Yes, that’s you.

Take this advice from a busy lawyer (who loves tech).  Set it aside and use good email management.  It’ll work.

Florida Bar News correction

October 13th, 2010

The October 15, 2010 Florida Bar News incorrectly listed my name as a “lawyer on the move.”  This is an error.  The corrected version is already available online,  here.

What is Your Child Doing on The Internet?

September 28th, 2010

Don’t allow the hype — or the technology — scare you from understanding what your child is doing on the internet.  Be a great parent in the real world and online!  Learn the techniques to avoid the risks, draw (and enforce) boundaries, and serve as a role model for your child.  In fact, some of these guidelines might apply to you!

Special thanks to Rosarian Academy in West Palm Beach, Florida for the invitation to speak to parents.

The powerpoint can be viewed/downloaded here or follow the link under Materials (on right column on this site).

What Do The Lawyer Rating Internet Sites Say About You?

September 24th, 2010

U.S. News and World Reports recently issued their ranking of law firms (interestingly not in a straight list form, like the school rankings, but broken into sections).  Other sites, ranging from Avvo to Craigslist to RateAPartner.com also include rankings.  Are these useful for clients?  What do they say about lawyers?  Take a look at this month’s law technology article from the Palm Beach Bar Association September 2010 Bulletin, “What Do Internet Rating Sites Say About You?”  Hit the link or look to the right under articles for “2010 Lawyer Rankings.”

Will Twitter Ruin Your Legal Writing?

August 28th, 2010

Concerned that all your texting and abbreviated communications on Twitter will poison your brilliant legal voice?  Might want to consider how out-dated expressions have a greater effect.

Thanks to the Palm Beach County Bar Association which published this article in their September 2010 bulletin.

Hit the link for the article, Will Twitter Ruin Your Legal Writing?, or look on the right column under “Articles.”

Christopher Hopkins Joins Akerman Senterfitt

June 15th, 2010

Friends:

I am pleased to report that, effective Wednesday, June 16, I will be moving my law practice to Akerman Senterfitt LLP.  Both of Butzel Long’s Florida offices are being merged/absorbed into Akerman, the largest law firm in Florida (with 500+ lawyers nationwide).

You can check out the firm at www.akerman.com

My new contact information:

Christopher B. Hopkins

Akerman Senterfitt

222 Lakeview Avenue, Suite 400

West Palm Beach, Florida 33401

Direct: 561-671-3668

Cell: 561-635-3397

Fax: 561-659-6313

Email: 

Florida JEAC Opinion Allows Judicial Assistants to “Facebook Friend” Lawyers

June 8th, 2010

We previously mentioned the infamous? Judicial Ethics Advisory Opinion 2009-20 which prohibits a judge from “friending” lawyers who appear before the court.  That’s so 2009.

The next logical question for judicial social networking policies has arrived: does this apply to the JA?

Yes, at least in part.  A judicial assistant can friend lawyers who appear before the court.  However, the limitations may devour the rule here.  The JA cannot post anything which makes “reference to the judge or the judge’s office…”  and the posts must be “outside of the judicial assistant’s responsibilities and independent of the judge…”  Given the frequency that people use Facebook at work (including listing where they work in their profile) and the amount of time we all spend at the office, those prohibitions seem fairly high.

JEAC Opinion 2010-04 goes on to note that any lawyer who attempts ex parte communication with the JA via social networking sites should have their head examined and should be de-friended and reported to the judge.

Florida Cruise Line Passengers & Forum Selection Clause in the Ticket

June 7th, 2010

The Third District has presented to the Florida Supreme Court a question of great public importance as it relates to the enforceability of forum selection clauses in cruise ship tickets. While the dissenting judge suggests that this is just a “garden variety personal injury case with a contractual twist,” the panel (based in Miami) likely recognized the significance of the cruise line industry in Miami-Dade and elsewhere in the state.

In Walter Weisenberg v. Costa Crociere (Cope, Shepherd and Suarez), the forum selection clause read:

For cruises which depart from, return to, or make any
port call at a United States port, Passenger further agrees
that any suit against CARRIER shall be filed exclusively
in the United States District Court for the Southern
District of Florida located in Broward County, Florida,
and that any such suit shall be based exclusively upon the
admiralty jurisdiction of the United States District Court.

In short, it must be in federal court in Ft. Lauderdale and federal jurisdiction is conferred by admiralty law. The Plaintiff claimed that this was not sufficient notice of the need to file in federal court and that there would not be a jury. A prior case from last year, Leslie v. Carnival Cruise, involved a slightly different clause which did not require admiralty jurisdiction.

Question of GPI presented is:

IS A FORUM SELECTION CLAUSE ENFORCEABLE
IN CIRCUMSTANCES WHERE ITS EFFECT IS
THAT PASSENGERS WAIVE THE RIGHT TO A
JURY TRIAL BUT THE CLAUSE DOES NOT
EXPRESSLY SO STATE?

Facebook Settings, Part II of…

June 1st, 2010

The increasingly long history of Facebook and privacy settings continues as users want an easy way to limit access to information on a system designed to exchange information (in fact, the reason it is free, after all, is because you pay with access to your information).  New changes are reportedly afoot (again).

Facebook is good for lawyers in the sense that accessible information about witnesses, opponents, and experts may be easy to find due to Facebook’s privacy settings.  On the flip side, like everyone else, lawyers want their own information nailed down.

The article, Facebook Privacy Settings, was published in the June 2010 Palm Beach Bar Association’s Bar Bulletin (also on the right column of the screen, under Articles).  Hope it helps.