Following Trends in Florida Law

Archive for April, 2009

US Supreme Court Drops “F” Bombs (and No One Cares?)

Wednesday, April 29th, 2009

It is hard to imagine that a wordsmith like Justice Scalia can be handed such rich material such as a dispute over the FCC regulation of “F***” and “S***” — and so handily drop the ball by writing a boring Opinion.  Perhaps he felt it too easy.   Indeed, nearly every Justice chimed in with their own dissent or concurrence, with little interesting to say.   Aside from those of us looking for something purient or a zinger-rich opinion, purists will note there is nothing constitutional in these opinions.

In Federal Communications Commission (FCC) v. Fox Television Stations et al., the issue was whether “fleeting expletives” said by celebrities during award shows are indecent under the FCC standards.  Yes, we have Cher and Paris Hilton/Nicole Richie to blame for this.

"Have you ever tried to get cow shit out of a Prada purse" is not a constitutional issue

The FCC’s indecency ban dates back to George Carlin in the 1970’s.  We all know the story.  In 2004, the FCC said that nonliteral (expletive) use of the F-word and S-word could be actionably indecent — meanwhile, it let singer Bono off the hook for his F-bomb at an award show (it was used as an “intensifier rather than a literal descriptor”).  The “2004 order” specifically noted that the FCC was changing course from prior rulings and, henceforth, it was going to consider fleeting expletives sanctionable.  You’ve been warned.

We then undergo a bit of a time travel flip-flop.  Prior to the 2004 Order, two nitwit celebrities (Cher and Richie) drop their F and S bombs in a hostile and literal manner, respectively.  The FCC, in 2006, took action using the 2004 order.  Question for the courts, can the FCC change its mind on this issue in the manner it did?

Yes, as long as it acknowledges it is changing course and offers a reasonable basis for it.  The Court set out a few guidelines, but none are terribly interesting.  Bottom line, broadcasters will need to bleep bad words or have a damn good excuse why they missed it.

One Lawyer’s Advice on Twitter

Wednesday, April 29th, 2009

The ABA Journal Mobile ran an interesting piece on lawyers-using-Twitter, Think of Twitter as ‘Megatexting,’ But Proceed With Caution.  Law-tech commentator Jim Calloway offered that lawyers should not over-Tweet (suggests you don’t have enough to do), don’t tweet outside of your practice/target area, and… don’t ever think your tweets are private.

Lawyer Tells Client NOT to Use Social Network Sites in Hiring Process?

Sunday, April 26th, 2009

With the increase in social networking websites, there has been a corresponding increase in the “learning curve” as to how to properly use them.  The mainstream media and legal profession have shown us that Tweeting jurors, incriminating evidence on MySpace, and Facebook posts about personal misadventures is a bad idea for job-seeking and staying out of jail.

In short, we’ve been warned.

Now comes word that at least one lawyer is telling an employer NOT to use social network information?

According to the article, Bank Nixes Use of Social Networking Sites in Hiring Process, one lawyer is suggesting that her large banking client not use this information.  Why?  Because of concerns that employees or would-be employees would claim that the decision NOT to hire was based off of some discriminatory reason, such as seeing online photos of the applicant’s babies and making a discriminatory decision.

How would the applicant know?  There’s the risk that someone in HR talks too much.  How do you protect against it?  Block social networks from being accessed.

Going against the mainstream certainly makes this lawyer and her advice stand out.  We’re not going to suggest she’s wrong — it is a well-reasoned theory.  Employees inclined to say dumb things are going to exist whether they have access to the internet or not.  Facebook profiles and information are typically private unless someone is accepted as a “friend”; taking one piece of information from a Tweet, blog or MySpace page (e.g., the applicant pictured with young children) is a stretch to suggest that THAT one sliver of information was why someone was not hired.  Instead of shying away from freely-available information, what about developing a clear policy of handling it?

Your thoughts welcome via the “comment” link below.

Liability Waivers: Trial Lawyers v. Theme Parks, Florida Supreme Court vs. Legislature

Wednesday, April 22nd, 2009

In December 2008, the Florida Supreme Court handed down a significant opinion which held that liability waivers which parents signed for their children to participate in commercial activities were NOT valid.  The Florida Legislature, encouraged by the Florida tourism industry, was quick to act with House Bill 363/Senate Bill 886 which would essentially “reverse” the Court’s interpretation and permit businesses to use child liability waivers.

The Orlando Sentinel recently ran an insightful April 17 piece on the issue, Dilemma: How to let kids take risks, be safe from negligence.  The article accurately set out the opposing camps, with businesses on one side and activists/plaintiff lawyers on the other.  

The article missed, however, the provocative April 15, 2009 Staff Analysis which challenged the Kirton v Fields opinion as “new law solely based on [the Court's] subjective assessment of ‘good’ pubic policy.”  It also advanced that the Court had acted “in violation of the separation of powers provision of the Florida Constitution.”

You can follow the progress of House Bill 363 here.

West Palm Lawyer Suspended by Florida Supreme Court

Sunday, April 19th, 2009

The Palm Beach Post reported earlier this month that local plaintiff lawyer, A. Clark Cone, was temporarily suspended from the practice of law by the Florida Supreme Court while there is an investigation into allegations of taking over a half million dollars from various clients.  He also reportedly filed suit for a client in South Carolina, despite not being licensed in that state.

Cone’s father ran a law firm which “schooled some of the top attorneys in the state, including Florida Supreme Court Justice Barbara Pariente.”

An initial search on the Florida Bar website appears to indicate Cone is “in good standing.”  However, clicking on the “YES” link reveals the temporary suspension.

The 165-page Petition for Emergency Suspension was predicated upon sworn complaints from a former paralegal, several clients, and a Bar auditor who reviewed the attorney trust accounts.

Sticklers Unite — April 16 a Grammar and Tax Holiday?

Thursday, April 16th, 2009

Yes, your taxes are due.  And you should use good grammar.  Today is the 50th Anniversary of the beloved?  notorious? Strunk and White, “Elements of Style.”  If you think of taxes and writing, it’s a big day for lawyers.

In my former firm, a great percentage of my time was spent “correcting papers” — otherwise known as proof-reading letters and motions written by associates who either never knew or quickly disgregarded how to write.  That was not a practice of wielding picky sentence formation rules, it was avoiding embarassment for the firm.  Fortunately, those days are over; that said, poor habits abound when you post on two blogs a week, so nobody is perfect.

The ABA brought this anniversary to the forefront and you can read their take in Choose Your Grammar Battle and Take a Side.  They put a comma in their title while I left it off.  Who is right?  But the mainstream media isn’t as superficial as one might seem.  The might USA Today likewise recognized the day in Elements of Style, Still Fashionable After 50 Years.

Joint Proposals for Settlement Continue to Fail in Florida Courts

Monday, April 13th, 2009

Recent statistics show that Florida courts, more likely than not, strike down Proposals for Settlements on appeal. So much for encouraging settlement. In fact, such was the opinion of a sitting appellate judge. In the last year, more than half of the Florida state appellate decisions involving Proposals have stricken them. Going back further, the failure rate increases.

A May 2008 First DCA opinion provided the groundwork for the theory that Proposals are tricky little creatures. More recently, in September 2008, a conflict emerged between the First and Second DCAs. On various grounds, we’ve seen the Third and Fourth Districts recently shoot down Joint Proposals in Central Hyundai v. Shaw and Brown-Eger v. Noon. A detailed article on suggested practices and wording of Proposals for Settlement can be found under “Articles” on the right column of this website (as well as here).

The issue of joint Proposals for Settlement under Florida Statute 768.79 and Florida Rule of Civil Procedure 1.442 jumped back to life in the March 18, 2009 Fourth District opinion of Daila Cano v. Hyundai Motor America, Inc. and Guillermo Cano, where the full court (with Hazouri concurring) held that the Proposal form was not valid.

In the Cano opinion, a dispute arose over husband and wife’s purchase of a vehicle, for which a warranty lawsuit resulted. Before trial, Hyundai served the couple with a single, joint Proposal for Settlement which did not set forth the amount of money attributed to each claimant. The case went to trial but the husband was dropped as a party. Hyundai won. The trial court upheld the Proposal nonetheless, holding it was valid because the Canos’ claims were indistinguishable.

The Fourth disagreed. Under the Brower-Eger v. Noondecision, a joint proposal shall state the amount and terms attributable to each party [Fla. R. Civ. P. 1.442(c)(3)] and our Supreme Court has rejected any deviation from the strict requirements of [F.S. 768.79] and [Rule 1.442] [which lead the court to conclude that] a settlement offer made to or from to or more parties… must specify the amount attributable to each of them.”

This, the court held, was a bright line rule. Here, there were two plaintiffs and Hyundai’s Proposal failed to specify the amount attributable to each; although their claims may have been indistinguishable, it did not change the outcome. The court found there are no exceptions to the multiple-party-appportionment-rule.

Judge Hazouri echoed the First DCA’s 2005 call for the Florida Supreme Court to re-visit Rule 1.442 in order to amend it so that it less strict and more favorable to encouraging settlements.

Are AHCA, DCF and other State Agency Reports Admissible in Florida?

Saturday, April 11th, 2009

Many nursing home and assisted living facility (ALF) lawsuits in Florida make reference to state surveys in the discovery phase in order to bolster a claim or seek leave for punitive damages. Surprisingly, there is little to no direct Florida law on the issue.

Long term care litigation lawyers may want to take note of M.S., the Father v. Department of Children and Families which was issued by the Fourth District in early April.

In that case, the Panel (Warner, Stevenson and Damoorgian) kept out of evidence a DCF welfare record after a detailed discussion of reports, hearsay, and the business records exception.

Miami Herald Reports “News” of Florida Law Firm Lay Offs

Thursday, April 9th, 2009

The downturn in the legal sector — like everywhere else — is certainly not news however a recent story in the Miami Herald also caught the attention of the ABA Journal.

On Monday, the Herald ran an article, Lawyers Forced to Adapt to Economic Climate, discussing how firms such as Holland & Knight, Akerman Senterfitt, Hunton & Williams, Adorno & Yoss, Becker & Poliakoff and others have handled the downturn — including layoffs, temporary salary cuts and even hiring contract lawyers at $30 per hour (”a growing practice in the industry…”).  Probably not the best “advertising” of the quality of your legal services to have that quote in the newspaper.

The ABA Journal picked up the thread in Times So Tough, Lawyer Had to Layoff His Own Wife…

How Do You Sue Lloyds of London in Florida? Not This Way…

Tuesday, April 7th, 2009

A 2004 lawsuit sought to sue an insurance company or companies and therefore named, “Lloyd’s Underwriters at, London, a/k/a Underwriters, Lloyd’s of London.”  The defendant filed a Motion to Dismiss as well as an affidavit disclaiming that Lloyds was neither a corporation nor insurance company.  Two years later, the suit was amended to name “Certain Underwriters at Lloyd’s, London.”  That too was found insufficient.

“The defendant described in the amended complaint is not an entity capable of being sued any more than ‘a certain driver in Broward County’ would be a proper defendant…”

The Florida court made reference that a policy number might help.  It appears then, that “certain underwriters” with the policy number might be enough to get the case going; then discovery should yield the actual underwriters.

The Fourth District opinion is Certain Underwriters at Lloyd’s, London v. Gilbraltar Budget Plan, Inc., Puritan Budget Plan, Inc., Perry & Co., Equity Premium, MHD Premium Finance Company, Freedom Finance Company, First Grampian Finance Corporation, RDL Premium Finance, Inc. and Delta Finance Company, Inc.  The Panel was Gross, Farmer, and Maas (associate judge).

Florida Bar Sends Proposed Advertising Amendment to Florida Supreme Court

Sunday, April 5th, 2009

On April 1, no joke, it was reported that the Florida Bar sent to the Florida Supreme Court a proposed amendment to Bar Rule 4-7.1 which would allow lawyers to communicate (read: advertise) to former clients and other lawyers without meeting the usual advertising regulations.  Previously, the senior editor of the Florida Bar News opined that lawyers “aren’t concerned” about that type of regulation (“Attorneys Not Very Concerned About Lawyer-to-Lawyer Ads”).

The Court recently tossed out a Bar proposal to regulate websites; let’s see how this lawyer advertising de-regulation effort fares…

Obama Administration Broadens FOIA “Openness”

Thursday, April 2nd, 2009

According to a March 19, 2009 memo from the U.S. Attorney General, the federal government is going to be considerably more “open” in responding to Freedom of Information Act (FOIA) requests.  No longer are departments supposed to withhold documents simply because they can.  The new rule rescinds the 2001 Bush Administration stance.   Some commentators are still not thoroughly pleased, although grateful for the now-mandatory explanation for redactions.  The Miami Herald, meanwhile, claims it is a “win for transparency.”

Retired 5th DCA Judge Pleus Sues Florida Governor Crist Over Replacement

Wednesday, April 1st, 2009

The Orlando Sentinel seems to be the only state media outlet with the breaking story that retired Fifth District Court of Appeal Judge Robert Pleus has sued Gov. Crist — over the failure to name Pleus’ replacement.

Pleus complains that the Governor, in a politically charged move, has rejected a list of names for the position because they did not contain any minorities — the story suggests that Crist “ would wait until he could appoint new members to the nominating panel before filling the appeals court seat.”

Retired Judge Pleus argues that Crist is required under the state constitution to appoint a replacement, instead of playing a waiting game.  Pleus is represented by a former president of the American Bar Association.

Story is here.

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