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Winter 2016
Volume 5 / Issue 4
COLLABORATIVE LAW: FAMILY MATTERS CIVIL FORFEITURES
LAWFULLY SEIZED?
ARBITRATION V. MEDIATION WHICH IS MORE BENEFICIAL TO YOU?
THE IDEA PROTECTION BUSINESS:
INTELLECTUAL PROPERTY LAW AT UWF
Winter 2016 www.esrba.com The Summation 1
Table Of Contents
Escambia-Santa Rosa Bar Association 216 South Tarragona Street, Suite B Pensacola, FL 32501 Phone: 850.434.8135 Fax: 850.436.8822 email: esrba@esrba.com Lawyer Referral Service: 850.434.6009 Executive Director Michael Doubek mike@esrba.com Editor Patricia Buchanan Wright patriciabwright@aol.com Published quarterly by the Escambia-Santa Rosa Bar Association as a service to its membership. Any article herein may be reproduced provided credit is given both to The Summation and the author of the article. Articles appearing in The Summation are not to be construed as official expressions of the views of the Escambia-Santa Rosa Bar Association. Official positions are expressed only by formal resolutions adopted by a majority of the membership and will be so designated when published. Editorials are expressions of the opinion of the Editor. Due date for all advertisements, articles, and announcements is the first of the month for the issue you wish to advertise in. Address all editorial correspondence to the Escambia-Santa Rosa Bar Association office. For all inquiries concerning advertising rates contact Ballinger Publishing. “The Summation Committee is dedicated to providing a publication to the legal community which contains articles that are accurate, informative, entertaining, educational, relevant and timely.” Summation Committee If you have any comments or suggestions about The Summation, please feel free to express them to any of the committee members. If you would like to join the committee, please call the Bar office at 434.8135. Brooke Jones Clara Smith Caroline Peterson Lisa York Michelle Kelley
Carrie Cromey Gerald McGill Tami Stokes Susan Woolf
2017 Judicial Assignments
Page 6
Community Mediators
Page 8
Civil Forfeitures
Page 12
Uncontested Dissolution of Marriage
Page 15
Collaborative Law in Florida
Page 16
Young Lawyer Division
Page 20
Veterans’ Court
Page 26
Snapshots
Page 28
In every issue... From the President
Page 3
Board of Governors
Page 4
New Members
Page 5
Did You Know?
Page 10
Ask a Lawyer
Page 22
The Bottom Line
Page 24
News from the Clerk
Page 27
Calendar
Page 31
Owners • Malcolm & Glenys Ballinger Publisher • Malcolm Ballinger Executive Editor • Kelly Oden Editor • Hana Frenette Art Director • Guy Stevens Graphic Designer & Ad Coordinator • Anna Hitchcock Assistant Editor • Dawn Gresko Sales & Marketing Geneva Strange, ext. 21 Paula Rode, ext. 28 Visit our Website at www.ballingerpublishing.com Editorial Offices: 314 North Spring Street, Suite A Pensacola, Florida 32501 850-433-1166 • Fax 850-435-9174 Member of
Reproduction or use of the contents herein is prohibited without written permission from the publisher. Comments and opinions expressed in this magazine represent the personal views of the individuals to whom they are attributed and/or the person identified as the author of the article, and they are not necessarily those of the publisher. This magazine accepts no responsibility for these opinions. The publisher reserves the right to edit all manuscripts. All advertising information is the responsibility of the individual advertiser. Appearance in this magazine does not necessarily reflect endorsement of any products or services by Ballinger Publishing. © 2016 Ballinger Publishing. All Rights Reserved.
2 The Summation www.esrba.com Winter 2016
From the President Making Meaningful Resolutions By TIFFANY SULLIVAN
H
appy holidays to you all. It truly is the most wonderful time of the year. It is a time for being thankful, for spending time with friends and family, for celebrating the events of the year and for showering our loved ones with gifts and appreciation. It is also a time of anticipation, excitement and planning for the year to come. It is a time for creating New Year’s resolutions. A New Year’s resolution is a tradition, most common in the Western Hemisphere but also found in the Eastern Hemisphere in which a person makes a promise to do an act of self-improvement or something slightly nice beginning New Year’s Day
(Wikipedia). In 1985, according the Gallop Polls, approximately 50 percent of American’s participated in the New Year’s resolution tradition and approximately 45 percent of those resolving to make a common change, such as losing weight, exercising more frequently or quitting smoking were successful (Wikipedia). Of the most popular resolutions are losing weight, exercising more, eating healthier, stopping smoking and stopping drinking. Unfortunately, most people who resolve to make these changes fall right back into the pattern of habit to be avoided in only a few short weeks. The most common reasons for
participants failing to meet their goals are unrealistic goals, failure to keep track of progress and creating too many resolutions. I believe the key to success for any goal one sets is not so much about what the goal is, but why one wants to reach that goal. If in setting our New Year’s resolution(s) we focus on the “why,” I believe success in reaching those goals is much more likely to follow. What is your big picture purpose for the resolution(s) you are making? How does success in that resolution change your life for the better, change the community in which you live, impact your future? This year as you consider the resolution(s) you
will make, I would encourage you to more deeply consider your “why.” Rather than simply making a list of resolution(s), be purposeful about exploring the reasons those changes are important and how being successful in those changes will make you a better person, your community a better place to live, your future a more desirable place to thrive. It has been said that the key to happiness is living a life of purpose and meaning. Create resolutions that will result in more purpose and meaning in your life. Happy Holidays!
Winter 2016 www.esrba.com The Summation 3
Board of Governors By STEPHEN ECHSNER
Report from
The Florida Board of Governors
T
he Florida Bar Board of Governors met on September 30, 2016. The major actions of the Board and the reports received included: The Supreme Court approved a threehour increase in CLE requirements for each three-year reporting cycle and a new mandate to take technology-related CLE courses. With the September 29 opinion in case No. SC16-574, The Florida Bar becomes the first mandatory bar in the nation to require a CLE technology component because of the increased use of technology in law practices. Florida Bar members can take advantage of free technology courses offered by the Practice Resource Institute. In addition, 197 Florida Bar-approved CLE courses have been awarded technology credit representing 437 hours currently available. As of the release of the opinion, more than 2,386 Bar members have
already satisfied the new technology requirement as part of their mandatory hours. For continuing education courses and information, visit floridabar.org/CLE. In addition to current member communications tools, Bar members will soon be able to view brief weekly news-style videos highlighting key Florida Bar News stories. Recognizing that video provides more engagement and awareness and is easily sharable and accessible, the Board of Governors Communications Committee is launching this project through social media, the website and digital platforms beginning in late October. President Bill Schifino has appointed a Special Committee on the Constitution Revision Commission (CRC) to focus on developing and delivering member and voter education about the process that occurs every 20 years
4 The Summation www.esrba.com Winter 2016
in Florida. The Chief Justice, Governor and Senate President have announced that they are now considering their CRC appointments. For appointment applications and other CRC information, visit floridabar.org/CRC. Scott Richardson, vice chair of the Florida Board of Bar Examiners, praised increased cooperation between The Florida Bar and the bar examiners on a variety of issues. He said that law students are being encouraged to apply for the bar exam during their first year so that all investigations can be concluded before they graduate or seek legal internships. The Florida Bar is working with a software developer to study the possibility of deploying an optional trust accounting software for members. The software would assist with trust accounting technical compliance issues (see Rules Regulating The Florida Bar 5-1.1 and 5-1.2) that many
small and medium size law firms have. More information will be available in future issues of The Florida Bar News. A new member benefit was approved by the board, eFileMadeEasy, which helps law firms with the state court system’s electronic filing system. For a list of the more than 40 member benefits and discounts on bank programs, insurance, business needs, auto rentals and more, please visit floridabar.org/ memberbenefits. The Supreme Court received eight comments on proposed revisions to for-profit lawyer referral service rules that would create “qualifying providers.” A response was filed by The Florida Bar on Oct. 5. Filings are available on the case docket. Additional details on the proposed revisions are posted at floridabar.org/ proposedLRSamend.
New Members Lacie J. Bowden Public Defender’s Office 190 West Government Street Pensacola, FL 32502 (850) 595-4100 Lacie_bowden@pd1.fl.gov Adam C. Cobb Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, FL 32502 (850) 433-6581 acobb@esclaw.com Renda Cook State Attorney’s Office 190 West Government Street Pensacola, FL 32502 (850) 595-4788 rcook@sa01.org Leah C. Garrett Wade, Palmer & Shoemaker, P.A. 14 North Palafox Street Pensacola, FL 32502 (850) 429-0755 Leah.c.garrett@gmail.com Geoff B. Joseph State Attorney’s Office 190 West Government Street Pensacola, FL 32502 (850) 595-4200 gjoseph@sa01.org
Christopher L. Melendez The Virga Law Firm 111 East Garden Street Pensacola, FL 32502 (850) 818-0236 Chris.melendez@thevirgalawfirm.com Josef Mitkevicius Josef Mitkevicius, P.A. 3298 Summit Boulevard Pensacola, FL 32504 (850) 972-9277 josef@mitkevicius.com Virginia C. Ralls James L. Chase & Associates, PLC 101 East Government Street Pensacola, FL 32502 (850) 434-3601 vralls@chaseattorneys.com Thomas A. Taylor State Attorney’s Office 190 West Government Street Pensacola, FL 32502 (850) 595-4262 Tataylor421@gmail.com Michael S. Thomas Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, FL 32502 (850) 433-6581 mthomas@esclaw.com
Nichole A. Lonergan State Attorney’s Office 190 West Government Street Pensacola, FL 32502 (850) 595-4548 nlonergan@sa01.org Michael A. McDonald State Attorney’s Office 190 West Government Street Pensacola, FL 32502 (850) 595-4200 mmcdonald@sa01.org
Winter 2016 www.esrba.com The Summation 5
2017 Judicial Assignments The new calendar brings with it new Judicial assignments in the First Judicial Circuit. Below are the judicial assignments by county. For details on effective dates, please visit FirstJudicialCircuit.org. Name
County
Division
Judge Michael G. Allen
ESCAMBIA
Division H
Judge Gary Bergosh
ESCAMBIA
Division N
Judge W. Joel Boles
ESCAMBIA
Division K, X (Drug Court)
Judge Amy P. Brodersen
ESCAMBIA
Division 3
Judge Thomas V. Dannheisser
ESCAMBIA
Division C
Judge Darlene F. Dickey
ESCAMBIA
Division L, R (Baker, Marchman, Incapacities)
Judge J. Scott Duncan
ESCAMBIA
Division F
Judge Jennifer J. Frydrychowicz
ESCAMBIA
Division 4 Division Q (TEAM Court)
Judge Jennie Kinsey
ESCAMBIA
Division P
Judge Pat Kinsey
ESCAMBIA
Division 5
Judge John L. Miller
ESCAMBIA
Division J
Judge Edward P. Nickinson, III Administrative Judge
ESCAMBIA
Division A, X (Drug Court), XA (Veterans Court)
Judge Linda Nobles Chief Judge
ESCAMBIA
Division M
Judge Coleman Lee Robinson
ESCAMBIA
Division G
Judge Jan Shackelford
ESCAMBIA
Division E
Judge Kerra Smith
ESCAMBIA
Division 2
Judge Joyce Williams
ESCAMBIA
Division 1
Name
County
Division
Judge John T. Brown
OKALOOSA
Division 001
Judge Michael A. Flowers Administrative Judge
OKALOOSA
Division 006
Judge John Jay Gontarek
OKALOOSA
Division 004
Judge Patricia Grinsted
OKALOOSA
Division C
Judge Terrance R. Ketchel
OKALOOSA
Division 005
Judge T. Patterson Maney
OKALOOSA
Division B
Judge Mary Polson Family Law Administrative Judge
OKALOOSA
Division 003
Judge William F. Stone
OKALOOSA
Division 002
Judge James Ward
OKALOOSA
Division A
Name
County
Division
Judge C. Robert Hilliard
SANTA ROSA
Division 1
Judge Jose “Tony” Giraud
SANTA ROSA
Division 2
Judge Marci L. Goodman
SANTA ROSA
Division B
Judge Ross Goodman
SANTA ROSA
Division D
6 The Summation www.esrba.com Winter 2016
Judge David Rimmer
SANTA ROSA
Division C
Judge John F. Simon, Jr. Administrative Judge
SANTA ROSA
Division A
Name
County
Court
Judge David W. Green
WALTON
County Civil, Circuit Civil, County Criminal, Traffic, Small Claims
Judge Jeffrey E. Lewis
WALTON
Circuit Civil, Dependency, Juvenile Delinquency, Baker Acts, Marchman Acts, Incapacities, Uncontested Probate, Guardianship, Domestic Relations/Family Law
Judge Kelvin C. Wells
WALTON
Circuit Civil, Circuit Criminal, Contested Probate, Guardianship, Domestic Relations/Family Law
Escambia County Divisional E-mail Addresses Effective December 7, 2016, each County Court and Circuit Court division was designated a “divisional e-mail address” to receive only proposed orders and motions. The judicial assistant’s existing e-mail address (jane.doe@flcourts1.gov) is to be used only for case scheduling and other business type communications with the judge’s office. The divisional e-mail address will remain with the division and not the judge during judicial rotations. CIRCUIT Judge Nickinson esc.DivA.eserve@flcourts1.gov Judge Dannheisser esc.DivC.eserve@flcourts1.gov Judge Jennie Kinsey esc.DivD.eserve@flcourts1.gov Judge Dickey esc.DivE.eserve@flcourts1.gov Judge Duncan esc.DivF.eserve@flcourts1.gov Judge Robinson esc.DivG.eserve@flcourts1.gov Judge Allen esc.DivH.eserve@flcourts1.gov Judge Miller esc.DivJ.eserve@flcourts1.gov Judge Boles esc.DivK.eserve@flcourts1.gov Judge Shackelford esc.DivL.eserve@flcourts1.gov Judge Nobles esc.DivM.eserve@flcourts1.gov Judge Bergosh esc.DivN.eserve@flcourts1.gov Judge Jennie Kinsey esc.DivP.eserve@flcourts1.gov Judge Nobles esc.DivR.eserve@flcourts1.gov COUNTY Judge Williams esc.Div1.eserve@flcourts1.gov Judge Smith esc.Div2.eserve@flcourts1.gov Judge Brodersen esc.Div3.eserve@flcourts1.gov Judge Frydrychowicz esc.Div4.eserve@flcourts1.gov Judge Pat Kinsey esc.Div5.eserve@flcourts1.gov MAGISTRATE Magistrate Hubley esc.DivS.eserve@flcourts1.gov Magistrate McIver esc.DivY.eserve@flcourts1.gov Winter 2016 www.esrba.com The Summation 7
Community Mediators
By GREG KNIGHT
T
oday’s busy lifestyles and heightened concern for personal and family requirements can result in a loss of focus on our larger community needs. Fortunately, there are those who recognize that exercising one’s civic responsibility contributes to a community’s overall well-being. I am pleased to report that an example of the spirit of civic duty is alive and well in the First Judicial Circuit’s Small Claims Mediation program. Since assuming the responsibilities as Mediation Services Director for the First Judicial Circuit, I have had the privilege of observing significant contributions made by volunteers who serve their communities with great commitment, enthusiasm, and talent. A volunteer’s personal satisfaction is a result of their ability to help those in conflict use effective communication and
self-determination to resolve disputes brought to the County Courts for resolution. Without pay and with some expense to sustain their Florida Supreme Court certification, these community mediators (or Certified County Court Mediators) provide invaluable services to disputants, the courts, and our communities. The court system is committed to the administration of justice, allowing us to live in a civil and peaceful manner. Community mediators encourage those in conflict to look past their differences to better understand each other’s perspectives, have an awareness of the costs and benefits for various options, find alternative solutions to better meet their needs, and determine whether or not to settle their disputes with mediation. When one combines
8 The Summation www.esrba.com Winter 2016
the fact that mediation offers disputants to a civil lawsuit an opportunity to resolve their differences in an amicable fashion, without the stress and uncertainty of trial, with the fact that 65 to 70 percent of mediated small claims cases result in a settlement, the benefits to everyone can readily be seen. Mediation represents a more productive and hopeful approach for individuals to discover solutions that allow for the needs of all parties to be addressed. Community mediators are welcomed from all walks of life and professional backgrounds, but they do share common desires to give back to their community and develop skills that are applicable to their personal lives. Community mediators have excellent listening skills, can remain calm even when others
around them are angry or upset, and can refrain from taking sides. Their personal fulfillment is derived from knowing they are making a difference in the way that those in our communities resolve their differences. Being a community mediator is not for everyone. If, however, you believe that you have the temperament and resolve to serve in this unique volunteer opportunity, please call me, Greg Knight, at 5954415 or contact me by e-mail at greg.knight@ flcourts1.gov.
Greg Knight is the Mediation Services Director of the First Judicial Circuit.
Winter 2016 www.esrba.com The Summation 9
The Idea Protection Business: Intellectual Property Law By DAWN GRESKO By DAWN GRESKO
W
hat is intellectual property? Although it can be defined innumerable ways, in a nutshell intellectual property can be summed up as a creation of the mind— an idea, a piece of work, or an invention created uniquely by you. While modern society has laws and rules in place to protect our physical property— from damage and theft to our homes and the items found within, you might ask: What kind of protections do we have available for our intellectual property? What’s to stop the theft of our inventions, which are oftentimes intangible ideas? Here enters intellectual property law,
or IP, a topic recently added to the curriculum at the University of West Florida (UWF). To cover all our IP bases, The Summation spoke with J. Nevin Shaffer, Jr.—a Florida Board Certified Intellectual Property Law Specialist and Licensed Patent Attorney (registered in Florida, Alabama and Texas), as well as adjunct professor at UWF’s Department of Accounting and Finance. Shaffer spearheaded efforts to get intellectual property in as a collegelevel course for students at UWF. “I love what I do, I always say it’s the idea protection business,” said Shaffer. “Most lawyers you hire when something bad happens.
10 The Summation www.esrba.com Winter 2016
My job is to make sure nothing bad happens–to protect a new little idea and make sure it grows up.” As professor of the new intellectual property law course, which held its inaugural session this fall, Shaffer teaches a proper understanding of how to protect a business from competitors by showing them how to develop IP protection plans in his introductory course to IP law. If you’re thinking the class is strictly for pre-law students, think again. “My objective is to have IP as a required course at UWF,” said Shaffer. “Why? It’s not just valuable to pre-law students but to those
in various fields—folks who are business majors or want to become accountants.” For a real-world perspective, Shaffer has invited several local business people (and plans to invite more) including the following: Julie Sheppard of IMHC, Kelly Massey and Glenn McDuffy of SBDC, John and Marsha Martelli of Martelli Enterprises, litigation attorneys J.D. Smith and Brian Hancock, as well as Joel Smith of AppRiver and Mike Droogsma of Broussard’s Bayou Grill & Cajun Market. These special guest speakers talk to students about how intellectual property plays a role in how they run their respective businesses.
As Shaffer puts it, if you’re an accountant with zero knowledge of intellectual property, then you won’t know what to value and account for in order to provide max protection for your business under the law. For this reason, Shaffer aims to use the course as a platform to not only explain how intellectual property adds value to a business, but to explain and help students identify how any company has intellectual property, and discuss strategies a business can employ to start protecting IP at basic levels. In the course, Shaffer covers patents, trademarks, copyrights and trade secrets–what he refers to as the four building blocks of a secure intellectual property protection plan for a business. The course requires students to write a paper on how an imaginary business, as defined by the student, will protect its intellectual property in these four primary ways. For starters, a US patent is a grant of rights from the federal government regarding an invention; rights that include the ability exclude others from making, using, or selling your invention. There are various forms of patents including utility patents for things such as
processes and machines, design patents for novel ornamental designs for articles of manufacture, and even plant patents for certain asexually reproduced plants. A trademark, on the other hand, includes any symbol, such as a word, design, or slogan, used to identity and distinguish one company’s goods from the goods of others. Then there’s copyrights: a copyright is one form of intellectual property rights granted by the federal government for “original works of authorship.” The owner of a copyright has five basic rights: reproduce the copyrighted work, prepare derivative works, distribute copies, perform the copyrighted work publicly, and display the copyrighted work publicly. Finally, you have trade secrets: that’s any information not known generally in a specific trade, which is used to provide an advantage over competitors. But, what are some examples of trade secrets? Any and every thing from customer lists, chemical processes and formulas, designs and plans, data compilations, as well as manufacturing processes and/or techniques.
Four Building Blocks of IP Protection Plans 1. Patent:
a grant of rights from the federal government regarding an invention. A patent lasts a maximum of 20 years from the date of filing the application.
2. Trademark:
a symbol, including a word, a design, or a slogan, that is used to identify and distinguish one company’s goods from the goods of others.
3. Copyright:
one form of intellectual property rights granted by the federal government for “original works of authorship.” This includes literary, musical, dramatic, and pictorial works, as well as motion pictures, and sound recordings. Computer programs are also considered literary works.
4. Trade Secrets:
any information that has value in that it is useful in business and is generally not commonly known in the particular trade. For example: algorithms; designs, drawings, architectural plans and blueprints; data compilations, manufacturing or repair processes and techniques.
Winter 2016 www.esrba.com The Summation 11
finding probable cause for forfeiture. Hey, That’s where I come in if a client can afford an attorney to go after the agency That’s My Money and answer the complaint. A formal
By JACK WILKINS
I
answer with all viable defenses is then filed and the case is treated just as any other civil lawsuit. At the adversarial preliminary hearing the agency puts on a brief show of sworn testimony in order to show the judge a nexus between the sought after property and the alleged felonious act. Yes, the alleged criminal act must be a felony, not a misdemeanor unless it is a multiple DUI case. That is why vehicles and cash are the main issues in a forfeiture case. Cash is easily converted to a law enforcement agency’s uses while vehicles are simply sold at local auctions or used as undercover cars for law enforcement and snitches. That just sounds wrong doesn’t it? Why? Whenever you mix the power to take something away from someone that does not have the same power to fight the seizure, and mix that with money, budgets, and a rationalization of “they shouldn’t have had that money anyway because it was just dope money,” then the risk for abuse is ripe and high. Well, why would someone have all that cash on them if it were not illegally gotten? There are some people that still do not trust banks, the IRS, or the government so they have their money in cash so they can put their hands on it. Think divorced spouse wanting to keep their money matters private. Or, they just have never been in a position to open a bank account or a checking account. Case in point. “Antoine G.” was scheduled to come talk to me about his most recent occasion to be wrongfully accused of drug possession. However, before he could see me he was arrested for possession of various drugs and $7,800 in cash was seized from him. After having the criminal case dismissed I contacted the contract attorney asking for my (client’s) money. She stated she was going forward because the forfeiture
n law, forfeiture statutes are not favored and are strictly construed in favor of the party against whom the penalty is sought to be imposed. I Cabrera v. Department of Natural Resources, 478 So.2d 454, (3rd DCA1985) Why then are they used as a bludgeon against those people least able to defend themselves? Money, plain and simple. With ever decreasing budgets and increasing expenses, law enforcement agencies and municipalities use the Florida Contraband and Forfeiture Act to supplement their income. As you know, we have a long tradition and even fought a War of Independence over the taking of property and the unjust enrichment of the Crown for our labors. We just do not like the Government sticking its nose into our business and taking our “stuff’ right? I see most forfeiture cases come in one of two forms. The first is when a client is stopped in their car and drugs are found inside and they are arrested and the car seized. The defendant should get a copy of the forfeiture seizure paperwork which will direct them to call the forfeiture office to ask about how to get their car back. This usually entails “buying” their car back for a semi-negotiable price depending on the value of the car and whether it is paid off. The fee may be a few hundred dollars to a few thousand. The second is when the client is told the seizing agency is seeking to keep the vehicle/property as its own. This is the usual case for cash money and vehicles that are paid off and are of higher value. The agency then turns it over to their contract attorney to proceed with a formal complaint seeking a judge to issue an order 12 The Summation www.esrba.com Winter 2016
case was unrelated to the criminal case. Since discovery had been completed in the criminal case, I filed an answer and set the forfeiture case for trial. At trial and after the judge granted my motion for a directed verdict, I received my client’s money as well as fees. In that case, the only person arrested was my client who was not the driver of the car where the drugs were found. He was however, the only person in the car with any cash on his person. The agency saw what they believed was an easy score of cash and they went after it. They were wrong, and I made them pay for it. There are also viable defenses to these types of cases such as the “innocent owner” defense where the actual owner is innocent of any knowledge of the driver’s alleged illegal acts. Another defense is a claim of an illegal search after an illegal detention of a vehicle or person. However, the owner will still need the assistance of an attorney to press her case and recover her property because the seizing agency will not believe her when she claims to be an innocent owner or the victim of an illegal detention or search. The problem is not many people can afford to hire a lawyer as they are too often poor, innocent owners who lose out to the agency and their hired attorney. Is it any wonder why people today find it difficult to trust their Gub’ment whether it is national or local?
John “Jack” Wilkins has been practicing law for 18 years and specializes in Criminal Defense, DUI & DWI, and Domestic Violence.
Civil Forfeitures
A Role in Crime Prevention By DEBRA LITTLE
L
et’s be real here! Illicit drug activities are on the rise and continue to flourish in every part of the country. The recent national epidemic of Methamphetamine usage and production is a cautionary example of the fact this issue is not going away anytime soon in our society. The cash received by the manufactures and traffickers is often converted into assets for personal use by drug dealers and incur no taxes or IRS reporting requirements as every other working class citizen. The reality is as long as it is profitable, dealers will continue to deal, users will continue to use, and society continues to pay the price. The stunningly obvious revelation that drug dealing is profitable and therefore drives the drug use epidemic has been overshadowed by the actions of a few law enforcement agencies that have abused the process, to the detriment of citizens. However, most law enforcement agencies largely carry out forfeiture procedures by the book and as prescribed by the law. The Florida Civil Forfeiture Act is an important tool in both preventing manufacturers and distributors of illegal substances from profiting and towards channeling those illegal proceeds back into our communities and law enforcement agencies for legitimate use. Recently, to the glee of drug dealers everywhere, Florida Governor Rick Scott signed the Civil Asset Forfeiture Reform Bill, SB 1044. The new law was hailed as a sweeping piece of legislation designed to reign in rouge agencies and eliminate the oft used tag “policing for profit.” In reality, the law simply tweaks an already comprehensive and effective law that, if properly implemented, serves its
intended legislative purpose. In any case, in an effort to settle the gleeful masses (drug dealers) and civil forfeiture naysayers let us review the forfeiture process and the new changes as of July 1, 2016. Frankly, few attorneys have handled forfeiture matters and most are unfamiliar with how the process works. The courts view Forfeiture proceedings as separate from the underlying criminal case and the outcome of the criminal case has no bearing on the forfeiture, with the exception of a 4th amendment suppression issue. Civil forfeiture is an in rem action brought against the property itself and these actions are intended to be remedial and are not punitive. For example, law enforcement can seize a motor vehicle used to transport and distribute illegal narcotics as a contraband article. To justify the seizure, the vehicle must have been instrumental in the commission of the felony and not merely incidental. Similarly, law enforcement can seize money gained from the sale of illegal drugs if a nexus is clearly demonstrated between the money and the narcotic activity -- even if the money cannot be traced to a specific narcotics transaction Additionally, Florida civil forfeiture case law has carved out a two-part process: (1) the seizure stage and (2) the forfeiture stage. The first stage, the seizure stage, begins when an authorized agency “seizes” property for which there is probable cause to believe that the property was used in violation of the Act. Property seized, under the Act requires notice to individuals entitled to notice notifying that person of the right to a post-seizure adversarial preliminary hearing. This notice must be given at the time of the seizure or within five working days after the seizure by certified mail. If a post-seizure adversarial hearing is requested the seizing agency must schedule a hearing within ten days after the request is received or as
soon as practical. At an adversarial hearing, the court reviews affidavits and any other supporting documents and takes testimony to determine if probable cause exists. The second stage, the forfeiture stage, is a proceeding in which the court or jury determines whether to forfeit the subject property upon clear and convincing evidence (old standard) that the subject property was used in violation of the Act. The seizing agency must file a complaint for forfeiture within fortyfive days after the seizure. The Circuit Court hears civil forfeiture cases and they are subject to the Florida Rules of Civil Procedure. Many cases are resolved prior to the conclusion of the forfeiture proceeding through settlement agreements. If a seizing agency obtains a final judgment granting forfeiture of real or personal property, it may retain the property for agency use, sell the property at auction or trade/transfer the property to a public or non-profit organization. If the seizing agency is a county or municipality, after satisfying liens and paying court costs, the proceeds shall be deposited into a special law enforcement trust fund to be used as authorized by §932.7055(5) for things such as crime prevention, providing additional equipment and matching funds for federal grants. Contrary to popular belief, forfeiture proceeds cannot be used to meet normal operating expenses of the law enforcement agency. Under the old statute, an agency that acquires at least $15,000 pursuant to the Act within a year must donate no less than fifteen percent (15%) of that money “for the support or operation of any drug treatment, drug abuse education, drug prevention, crime prevention, safe neighborhood or school resource officer programs.” As a result, a large percentage of the money confiscated through civil forfeiture goes to benefit the community. Now let’s talk about what has people so excited. What’s new?
Winter 2016 www.esrba.com The Summation 13
Civil Forfeitures
The first change in the new statue requires an arrest (no conviction) in order to seize property. NO arrest is necessary however if the owner of the contraband cannot be readily identified or the persons in possession deny ownership, the owner is a fugitive or deceased, the owner agrees to cooperate as a confidential informant or if the assets in questions are monetary instruments. Escambia County Sheriff’s Office “ECSO” already has a policy in place requiring an arrest for a seizure and I am not sure why any agency would seize property without an arrest. Who can argue with this addition to the statute? One point to the naysayers! Some other changes that I will briefly touch upon are the new requirements that supervisory personnel must make the determination to seize currency and notification must be provided to the agency’s legal counsel as soon as possible after a determination is made. In addition, if law enforcement seizes property, other than monetary instruments, and the arrested person is not the owner of the property, law enforcement must now prove the owner knew that the property was involved in criminal activity. This is an unnecessary addition that was already sufficiently covered under the previous statute. Any legitimate owner with standing can contest a forfeiture matter as an innocent owner as an affirmative defense. This is not a new concept. Finally, law enforcement agencies will be required to report detailed information about forfeitures, including receipts and expenditures, which will allow the State to track the value of seizures and how that money is ultimately spent. Lastly, the new statute now requires law enforcement agencies to meet a new legal standard of proof for final forfeiture, beyond a reasonable doubt, whereas before it was a clear and convincing standard. This new standard will not be
earth shattering as I am sure most agencies work good solid cases and have the evidence needed to meet the threshold. Agencies that collect more than $15,000 in forfeitures in a year must contribute at least 25 percent of the proceeds to a drug treatment, education or crime prevention program as opposed to 15 percent previously. Locally, the ECSO has continuously utilized forfeited monies as authorized by law to the benefit our community. ECSO has donated more than one million dollars to local nonprofit organizations, exceeding the percentage requirements under both the old and new statutes. In my opinion, the biggest hurdles implemented are the new requirement of obtaining a court order finding probable cause on all forfeitures within 10 business days of the seizure and the increased filing fee for the complaint to not less than $1,000. Really, 10 days! $1000.00 minimum! Okay, moving on because it would require too much ink to express exactly how burdensome, needless and pointless this actually is. Good thing for the citizens of Escambia County, we at the ECSO, have always run a tight ship, followed the law, and held drug dealers accountable. These changes may modify the way we go about doing things but it will not stop us from vigorously ensuring drug dealers do not profit in Escambia County. Get a job and pay taxes like the rest of us!
14 The Summation www.esrba.com Winter 2016
Debra Little is a Certified Litigation Specialist and General Counsel with the Escambia County Sheriff’s Office.
Uncontested Dissolution of Marriage by Special Affidavit By JUDGE JAN SHACKELFORD
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scambia County Administrative Directive 2016-05 outlines the procedure for uncontested dissolution of marriage without a hearing by special affidavit. The advantage to attorneys is that they do not have to wait to get a hearing time with a judge since the packet can be submitted to the Court and signed once the time period has passed. However, in spite of the fact that the AD includes the necessary forms and checklists, there have been continuous problems with compliance resulting in additional effort by judges and judicial assistants to make sure the paperwork is complete. Sometimes the same mistake is repeated multiple times by the same attorney’s office, and there have been occasions when pressure has been applied to get a judge to ignore certain requirements. As a consequence of these problems, the Family Law Judges have decided that if the paperwork is not in order, the case will have to be set for a short hearing. Unfortunately, this can result in a significant delay for the client based upon the judge’s calendar. The purpose of this article is to outline some of the common problems
which can cause a packet to be rejected by a judge. When filing the initial paperwork, please list the child’s full name and date of birth in the petition, UCCJEA affidavit, and final judgment. Use the full social security number in the notice of filing the social security number. In order to participate in the special affidavit DOM, any Marital Settlement Agreement must be notarized. This is critical since the judge is not seeing either party to confirm his/her agreement to the terms and conditions. Recently, we have noticed a trend where one attorney is notarizing an agreement for both parties. The judges believe this is prohibited by Fla.Stat. §117.107(12). Certainly, attorneys can notarize an agreement for their own client. However, to notarize a MSA (or adoption paperwork) for the opposing party is a bad practice and could lead to unnecessary complications. If the MSA is not notarized, the case will have to be set for a hearing. Also, the judges prefer that you go ahead and file the MSA prior to submitting the packet and simply incorporate the MSA in the Final
Judgment. Often, attorneys state in the Final Judgment that they are attaching the MSA as “Exhibit A” and do not do so. Since judges are now using electronic signatures, it is much easier if a document is in Word as opposed to PDF which we cannot correct. Another common problem is the failure to file child support guidelines worksheets. Often there is a vague reference to the fact that since both parties have equal timesharing and “relatively” equal income, the parties have agreed to waive child support. Even if that is the case, the judges want to see the guidelines. Also, if a deviation of child support is sought, the attorney must file the appropriate motion. In addition, failure to include a specific parenting plan prevents the judge from accurately determining child support, thereby necessitating a hearing. Please do not file the notice of filing special affidavit until all of the other required documents are in the file. Use the forms attached to latest AD. Do not try and circumvent the checklist by creating your own checklist that does not contain all the required information. Use the address on file for the recipient of the notice of filing special affidavit or include it with the new address. Since judges are now signing electronically, which includes the date and time with the signature, there is no longer a need for blanks for
the day and month with a signature line for the judge. Simply stating “Done and Ordered,” and leaving room for the electronic signature is sufficient and less confusing. Please remember that the 15 day waiting period can only be waived if there are two attorneys. In conclusion, this procedure was developed for the convenience of attorneys and their clients. It is not a time-saver for the judges and judicial assistants. Once the packet has been submitted to our offices in proper form, we make every effort to review and sign the paperwork as quickly as possible. However, there is no promise that the paperwork will be “expedited” ahead of other work. It is not reasonable to call our offices within a day or two of submission to ask our judicial assistants about the status of the final judgment. On behalf of all the Family Law Judges in Escambia County, I hope this information will result in a better success rate on uncontested dissolution of marriage by special affidavit.
Judge Jan Shackelford is a judge of the First Judicial Circuit of Escambia County.
Winter 2016 www.esrba.com The Summation 15
COLLABORATIVE LAW IN FLORIDA By MARY G. MCDANIEL, MGM LAW P.A. 16 The Summation www.esrba.com Winter 2016
Collaborative Law
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he Florida Supreme Court has long recognized that family law cases needed “a system that provided nonadversarial alternatives and flexibility of alternatives; a system that preserved rather than destroyed family relationships; . . . and a system that facilitated the process chosen by the parties.” In re Report of Family Law Steering Committee, 794 So. 2d 518, 523 (Fla. 2001). In August 2016, The Family Law Rules Committee and The Florida Bar Board of Governors approved Family Law Rule of Procedure 12.475, which addresses the collaborative law process, and Bar Rule 4-1.19 which governs the attorney’s role in the collaborative process. Both are currently before the Florida Supreme Court for adoption. Once adopted, Sections 61.55-61.88, Florida Statutes will codify a system of practice of collaborative law to encourage the peaceful and early resolution of disputes through a voluntary settlement process. The collaborative law process is a unique non-adversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation. § 61.55, Fla Stats. (2016). The process also provides a method
to maintain certain information as privileged that otherwise might be public record had the parties opted to litigate their dispute within the court system. §61.58 Fla. Stats. (2016). Collaborative Law in Escambia and Santa Rosa Counties In May 2016, the first of many monthly meetings of Escambia and Santa Rosa attorneys and financial and mental health professionals interested in collaborative law, met to discuss launching a collaborative practice group in the area. In July, 2016, eleven attorneys, one mental health professional and one financial professional from Escambia and Santa Rosa counties attended a two-day training program on how to conduct a collaborative divorce. Since July, the newly trained collaborative professionals have formed the Northwest Florida Collaborative Law Group for the purpose of educating potential litigants on the collaborative process; a process that is private and conducted in a professional, respectful setting that fosters rather than erodes the parties’ relationship, which is available as an alternative to hostile, expensive, and destructive litigation.
In September, Northwest Florida Collaborative Law Group met with Escambia Family Law Judges to present a proposed administrative order to the First Circuit which recognizes collaborative law as an additional means of alternative dispute. What is Collaborative Law? Collaborative law is a voluntary settlement process that occurs early on in a dissolution or modification action. Depending on the issues, the process may involve a neutral financial professional, but always engages a neutral mental health professional, (MHP) who acts as facilitator, the parties and each party’s collaboratively-trained attorneys. The MHP does not act as counselor or therapist to either party, but rather acts as a neutral facilitator. The facilitator is selected by the attorneys and plays a critical role in the process in leading the parties through the process of identifying their goals and in creating strategies for obtaining them. Normally in family law, each party locks themselves into automatic positions from the outset: “50/50 timesharing” or “equal division of assets and debts”, and then spends their energy and money litigating a position that may or may
Winter 2016 www.esrba.com The Summation 17
Collaborative Law
not move them towards the larger long term goals. The collaborative process enables the parties to determine the issues that are most important to them through Interest Based Negotiation, a ‘win-win’ model of negotiation. Once the parties have retained a collaborativelytrained attorney and have agreed to participate in the collaborative process, each client meets individually with the facilitator. After each client meets with the facilitator alone, the clients meet together with the facilitator. Then the facilitator and both attorneys meet to identify the parties’ issues and to set the agenda for subsequent “Team Meetings” which include both parties, their attorneys, and the facilitator. Using Interest Based Negotiation, the facilitator engages the parties in a process designed to identify each party’s objectives or actual interests. It’s the facilitator’s role to assist each client in unearthing the things (interests) that are truly important to the client, as opposed to those things that a client may reflexively feel a need to fight about. For example, does a party really want more timesharing with the children or is their actual interest to pay less
child support? Once all interests of both parties have been identified, the parties brainstorm ideas to achieve their identified interests. The process allows the parties to create their own solutions to satisfy those interests that are most important. The parties’ emotional energy (and money) is used to formulate solutions to thoughtfully identified actual ‘interests’ that enhance each of their lives moving forward as opposed to fighting over fixed or reflexive positions that don’t advance the party’s actual interests. During the course of the normal process, months, sometimes years, are spent in the discovery process, often unnecessarily. The collaborative process does not involve discovery; it is based on full disclosure by both parties. Its success depends on the good faith efforts of both parties and their attorneys. The process is well-suited for dissolution of marriage; paternity, child support, timesharing; parental relocation; and modification of a prior final judgments regarding a family law matter. Collaborative law is not merely an alternative to mediation; it is a replacement to litigation. It is an entirely different process where success is defined by identifying
18 The Summation www.esrba.com Winter 2016
outcomes that optimize each party’s identified interests. Unlike litigation, where a litigant might keep score based on the number on motions granted or denied, by how much money they can force the other to spend, by how long the discovery process can be unnecessarily extended, or even by how long a party can delay resolution to torture the other party, the ‘win’ in collaborative goes to both parties. For additional information, please contact Mary McDaniel at 450-1755 or mgm@ mcdaniellawpa.com.
Mary G. McDaniel MGM LAW P.A. represents clients with family law needs in Escambia, Santa Rosa and Okaloosa counties.
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Winter 2016 www.esrba.com The Summation 19
Serving the Young Lawyer Division By FREDERICK V. LONGMIRE
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t’s my pleasure to serve as president for the Young Lawyer Division (YLD) of the Escambia Santa Rosa Bar Association (ESRBA) for the 20162017 year. Serving as President of YLD is a rewarding and humbling experience, which has given me the opportunity to collaborate with young lawyers working in every sector of the law and our local community. Our YLD is a subsidiary of our local bar—ESRBA. We are also one of several affiliate YLD organizations across our great state. As such, we are affiliated and approved by the Florida Bar Young Lawyer Division (“TFB YLD”). Our affiliation with the TFB YLD entitles us to several resources— including continuing legal education, networking opportunities, and even financial funding. Upon becoming president of our YLD, several young lawyers
asked me, what does the YLD do and what is its purpose? My response then and now is that at its core, YLD is a memberdriven organization with the goals of fostering relationships amongst our members, our judiciary, and our local community. In hopes of achieving these goals, at the beginning of my term of service, I set out to increase our YLD membership, garner more member participation, and offer our members the opportunity to participate in wide variety of activities. In fostering relationships amongst our members, YLD has hosted multiple networking events sponsored by local businesses such as Summit Bank, Wierzbicki Court reporting, V Paul’s, and Fish House. Recognizing that most YLD members rarely are granted an opportunity to speak with our judiciary in an informal setting, our
YLD organizes gatherings between our members and the judiciary. These events have been hosted by Fredric Levin aboard his yacht and at other times have taken place during periodic lunches with local judges across both Escambia and Santa Rosa County. These events afford our young lawyers an opportunity to gain insight, input, and wisdom from judges regarding not only the practice of law, but also maintaining a healthy balance between work and life. Understanding that the role of a true lawyer is not only advocacy, but also service, our YLD offers our members multiple opportunities to serve our local community. This year multiple YLD members will serve our community by participating in Breakfast with Santa, OnBikes of Pensacola, and Backpack Buddies. Other members serve our local community as mentors with Take Stock in Children and Youth Motivator, while others serve as teachers with Justice Teaching. I encourage YLD members or prospective YLD members to contact
me (flongmire@sa01. org) for more information and opportunities to get involved. I am certain that participating in YLD will benefit you professionally and personally. Our YLD is committed to bettering the lives of our members and the lives of those within our local community.
Frederick V. Longmire is the Escambia-Santa Rosa Bar Association’s 2016-2017 Young Lawyer Division President and Assistant State Attorney for the First Judicial Circuit.
Young Lawyer Division Cruise on Fred Levin’s Yacht: The Triple Crown On September 15, 2016, members of the ESRBA Young Lawyer Division cruised the open waters with Judge Ross Goodman, Judge Smith, Judge Brodersen, and Judge Bergosh. During the cruise, the lawyers and judges discussed the importance of maintaining healthy and balanced lives within our legal profession. Judge Ross Goodman was instrumental in setting up the cruise, which gave all involved an opportunity to actually experience an evening of balance and fellowship amongst one another. The YLD thanks Frederic Levin for his kindness, generosity, and time spent with the ESRBA Young Lawyer Division upon his yacht, The Triple Crown. Thank you, Frederick V. Longmire President of Young Lawyer Division
20 The Summation www.esrba.com Winter 2016
Getting Involved in the Young Lawyer Division By ADAM J. WHITE
O
ver the past year and a half, I have had the pleasure of serving the young lawyers of this circuit as the First Judicial Circuit’s representative on the Board of Governors of the Florida Bar Young Lawyers’ Division (YLD). My service has been extremely rewarding, as it has allowed me to work with some of the most talented and intelligent young lawyers from across our beautiful state to share ideas and discuss policies and programs for the betterment of our state’s legal community. In speaking with members of our circuit, it has become apparent that young lawyers, and experienced lawyers, are not aware of what the YLD does. The President of the Florida Bar, Bill Schifino, has stated that “The YLD represents the future of our profession. Without their drive, energy and innovative ideas, it would be impossible to accomplish all we do for the members of The Florida Bar and for Floridians in communities throughout the state.” The YLD is a work horse for the Florida Bar, producing programs that educate and provide support for attorneys beginning their careers – attorneys that comprise more than 26,000 members of the Florida Bar who are under the age of 36 or who have been practicing for five years or less. One of the most important roles the YLD
fulfills is assisting its members in the transition from law school to the actual practice of law. This transition includes the traditional YLD administered Practicing with Professionalism programs that are required for all first-year attorneys, as well as the Basic Skills CLE courses that attorneys must complete within their first three years of practice. However, the YLD has now gone even further, launching a website dedicated to assisting young lawyers to start their own law firm: startmyfloridalawfirm.com. The YLD also produces webinars which are
catalogued on the YLD website: Flayld.org. These webinars provide free CLE credit and concern various topics of interest to young lawyers as a benefit to members of the YLD. The YLD has also created a library of “How-to” videos on topics such as “How to Represent a Personal Injury Client Pre-Suit” and “How to Handle a Basic Eviction.” Additionally, the website hosts the YLD blog, where young lawyers from around the state write on timely topics of interest to division members. Simply put, the YLD works extremely hard to provide opportunities for the young lawyers of our state to become successful. I encourage YLD members to reach out to me (ajw@esclaw.com) for more information and for opportunities to get involved. The YLD is a wonderful organization
doing a great deal of hard work for the good of the Florida Bar.
Adam J. White is the Florida Bar Young Lawyer Representative for the First Judicial Circuit. He is an associate attorney with Emmanuel, Sheppard & Condon and has primary practice is general civil litigation with emphasis in construction law, contract and commercial litigation, and employment law.
Winter 2016 www.esrba.com The Summation 21
Arbitration v. Mediation By SHARI THIEMAN GREENE What are arbitration and mediation? Arbitration and Mediation are types of resolving disputes without going through the Court system. They are different methods of what is called Alternative Dispute Resolution (ADR). Taking a case through the Court system is called “litigation.” The ‘alternative’ component means that the parties resolve their differences outside litigation. ADR, especially Mediation, is favored for a lot of reasons, primarily because
it can be far less expensive and more expedient than litigation. What is the difference between arbitration and mediation? Arbitration is when one or more trained neutral people, usually lawyers or judges, act as the decision-makers, like a judge or jury, to decide the outcome of a dispute. The adverse parties present their respective cases to the arbitrators, including witness testimony, documents, and argument, and
22 The Summation www.esrba.com Winter 2016
the arbitrators make the decision about how to resolve the dispute. At the end of an Arbitration, there is usually an Arbitration Award that sets forth the decision and the parties’ rights and responsibilities. An Arbitration Award usually can be filed and enforced in a court of law. Mediation is when a trained neutral person works with the adverse parties to try to find a solution both sides can accept to end the dispute. The Mediator is not the decision-maker, and has no power to
decide the outcome. The Mediator simply tries to help the disputing parties find a solution to resolve the issues without going through litigation. In Florida, Mediation is confidential, which allows the parties to make concessions and offers to resolve the case that cannot be used against them if the case ends up in court. At the end of a successful Mediation, the parties sign a Mediation Agreement or Settlement that is an enforceable contract.
Ask a Lawyer Which is better, arbitration or mediation? Different lawyers may give different answers, but, based on my 18 years of experience, Mediation is much better. Arbitration is sometimes (but not always) quicker and less expensive than litigation, which is why it was created. But, it has some distinct disadvantages. Typically, Arbitration is binding, which means that the decision is final, and there are no appeal rights. That can a problem, because, if the Arbitrators are completely wrong on either the facts or the law, there is nothing you can do about it. Even if the Arbitrator makes a mistake, the parties are bound by the decision. (If the Arbitration is non-binding, the parties can appeal a poor decision to the Courts). Mediation is an excellent method of ADR, and it allows the parties to control their own destinies. Mediation usually is used together with either Arbitration or litigation. Selfdetermination is one
of the best attributes of mediation. The mediator cannot force the parties to make concessions and resolve the issues, but can strongly encourage the parties to do so, often coming up with creative solutions. Since the mediator has no actual power, though, there is no guaranty that there will be any solution at the end of mediation. If the mediation does not result in a resolution, the parties can then return to arbitration or litigation. Mediation is a good way to try to resolve differences more quickly and less expensively than either of the other options. How much do arbitration and mediation cost? The cost of each can vary widely. Typically, the costs of ADR are split equally between the parties participating, but sometimes, one party agreeing to pay more or all of that cost can be used as a good negotiating point. Arbitration costs depend largely on how many Arbitrators are involved and how
detailed and extensive they allow the process to be. One Arbitrator will cost about the same as a lawyer with the same amount of experience (maybe $200-400/hour), but three Arbitrators, obviously, will cost three times that. Some Arbitrators will limit the parties’ ability to do very much discovery, which can keep costs down, but some will allow almost unlimited discovery, which might mean a number of depositions and other investigation that can be very costly. The actual Arbitration can last a few hours, all day, or over a few days. Mediation is usually relatively inexpensive. The parties can choose to participate early in the dispute, which can save additional money. A good Mediator also usually charges about the same as a comparably experienced attorney ($200 to 400/hour), and Mediation also can last a few hours, all day, or a few days. There is no limit on the number of times a dispute can be mediated, so, if the first one does not result in a resolution,
another attempt might work. In my experience, parties are considerably more satisfied with the speed, cost, and outcome of a dispute using mediation than either arbitration or litigation.
This information is not intended to be a substitute for obtaining legal advice from an attorney. No person should act or rely upon any information in this article without seeking the advice of a qualified attorney.
Shari Thieman Greene is a partner with Lynchard, Greene & Seely. Ms. Greene is a Florida Supreme Court Certified Circuit Civil Mediator. Her areas of practice include civil litigation, COA/HOA representation and construction law. She is licensed to practice in New Mexico, Texas and Florida.
Winter 2016 www.esrba.com The Summation 23
The Bottom Line
Giving the Gift of Yourself By CAROLINE PETERSON
A
s the holiday season gets into full gear, everyone is getting into the spirit of giving their money, time, and talent. Why does the giving have to be during only this time of year? There are so many local charities and people that could use your help throughout the year. Our legal community that includes attorneys, clerks of court, paralegals, secretaries and support staff, is gifted with talents that would be beneficial to Legal Services of Northwest Florida (LSNF) all year long. LSNF has year-round projects that benefit our community and the best part is that they do not take an enormous amount of time to do great things. Carrie Cromey from LSNF (www.lsnf.org) gave me a quick outline of some wonderful projects that we can get involved in from now until May. In January, LSNF will collaborate with local homeless programs and shelters to provide a legal clinic for EscaRosa Coalition for the Homeless (ECOH) on U-Count Homeless
Service Day. January is also Poverty Awareness Month. Why not take on a case or support a local agency to help bring people out of poverty? February gives us the opportunity to help explore and address racial justice issues or help support one of the LSNF attorneys in attending Florida Legal Services Racial Justice fellowship. You could also support LNSF working with victims of sexual violence, which is another focus in February. Spring cleaning begins in March, how about donating some gently used furniture or other supplies that could benefit a LSNF or another non-profit. How about volunteering a little time to answer phones or to provide office support? April and May are very busy months focusing on Fair Housing, Child Abuse Prevention, and Elder Law, not to mention Law Week. You could help a child by volunteering for the Guardian Ad-Litem program (GuardianAdLitem.org).
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They take volunteers all year and you do not need to be an attorney or have an extensive skill set. All you really need is a few hours a month and a heart for kids. Our circuit has over 17,000 kids that could use our help. Law Week has many fun events including the Pro-Bono Clinic which is just a few hours on a Saturday morning in late April or early May. You could also get involved by volunteering at the luncheon or judicial reception. The Northwest Florida Paralegal Association (NWFPA) has been a supporter of Favor House (favorhouse.org) for the past several years. This organization support victims of domestic violence. They can use donations of time, talents, money and gently used items to help our local community recover and rebuild from domestic violence. Another local organization is Habitat for Humanity (pensacolahabitat. org) which helps lowincome people and
others in need build their own homes. This organization has many different programs and different avenues for volunteerism. All of the above suggestions are just a very brief list of small ways that you could get involved in today. The level of your involvement is completely up to you. You can volunteer for a specific event, a few hours, or monthly. Donating to our community will bring great rewards to you personally, and it will also build a stronger, smarter, and better equipped community and that’s the Bottom Line.
Caroline Peterson RN, CP, FRP is a registered nurse and certified paralegal with Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor.
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Winter 2016 www.esrba.com The Summation 25
Escambia County Veterans’ Court Off To A Great Start By MIKE DOUBEK
On Tuesday, Sept. 13, the Escambia County Veterans’ Court graduated its first class. The graduation ceremony, presided on by Circuit Judge Edward P. Nickinson and Okaloosa County Judge T. Patt Maney. Four deserving veterans, including one each from the Marines, Navy, Army and Coast Guard, had the criminal charges levied against them dismissed after successfully completing treatment and other courtordered conditions. Last year Judge Edward Nickinson spearheaded the Escambia County Veterans’ Court Program, a specialized court that serves veterans struggling with treatable behavioral, mental, or chemical health problems. It is modeled after the Okaloosa County Veterans’ Court established by Judge Patt Maney. Judge Maney, a retired U.S. Army Reserve brigadier general was severely wounded in Afghanistan
in 2005 and spent 20 months recovering at Walter Reed Army Medical Center. Judge Maney said the experience “left me sensitive and sympathetic to the plight of some 200,000 wounded warriors with traumatic brain injury, and their families and their communities and veterans in general.” He then came up with the idea of working with homeless veterans in court, spearheading a “Stand Down” event in Okaloosa County. He also wanted to build on and codify this combination of compassion for our veterans and court related business. During the 2012 Florida Senate session, the Senate passed the T. Patt Maney Veterans Treatment Intervention Act; creating a pretrial veterans’ and service members’ treatment intervention program. The program takes into account a veteran’s service and creates an opportunity to avoid recidivism and criminal
Volunteer mentors present flags of each of the four branches of service
records that would limit their future opportunities. Similar to the Okaloosa program, the Escambia Veterans’ court is a voluntary program which promotes sobriety, recovery, restoration and stability, through a coordinated response involving cooperation between all stakeholders in the process. There is a specialized court docket for veteran defendants that substitutes traditional court process with a problem solving model. Partner organizations that make the program successful include the U.S. Department of Veterans Affairs, the First Judicial Circuit Court of Florida, the Okaloosa County State Attorney’s and Public Defender’s Office, the Okaloosa County Department of Corrections, to name a few. The Veterans’ Court services include one-onone judicial supervision, group evaluation by the
Judges Maney and Nickinson with the four Veterans’ Court graduates on Sept. 13
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collaborative team, intensive probation supervision, employment and housing assistance, medication monitoring, counseling and mentors. Judge Nickinson recognizes the special challenges many veterans experience as they reintegrate into civilian life. For some, the challenges lead them down the road to criminal behavior. For those eligible veterans in the justice system who are willing to work hard to make their lives safer and more productive, Veterans’ Court provides an alternative to incarceration. It is not an easy path to take. The judges and stakeholders hold each veteran in the program accountable for their progress and their actions. As is testimony by these four Veterans’ Court graduates, the effort is well worth while. An additional seven veterans graduated during a ceremony on Dec. 13.
Judge Patt Maney, Judge Edward Nickinson, and Representative Mike Hill presenting the Certification of Completion to Thomas Edwards
News from the Clerk
Access to Confidential Records: Not Always Logical Submitted by Susan A. Woolf, General Counsel, on behalf of Pam Childers, Escambia County Clerk of the Circuit Court & Comptroller
Recently, the Clerk’s office was presented with a question–why did an attorney of record for petitioners in an adoption case not have access to all of the court records? A judge had been informed that the attorney representing the petitioners in an adoption matter would not have access to the court records in that case without a court order. Logically, it seems like it would be obvious that the attorney representing the couple petitioning to adopt a child would have full access to the court records in that case. However, the law is not always logical. Let’s look at the analysis of the situation that was at issue. Adoptions arise from three different scenarios: (1) following a case in Dependency court where the parents’ rights were terminated; (2) a voluntary and consensual relinquishment of parental rights; and (3) a relative or step-parent adoption. The petition for adoption at issue was filed in Dependency court because it arose from a termination of parental rights (TPR) case. In accordance with the requirements of the State Reporting System (SRS) directed by the Office of State Courts Administrator (OSCA), the Clerks have been instructed to open petitions for adoptions arising from TPRs as
Dependency cases with DP case numbers. Pursuant to §39.0132, the Clerk shall keep confidential court records in Chapter 39 cases, which are Dependency cases. The statute describes certain categories of persons that have access to the confidential records in Dependency cases without a court order. The list of persons with access without a court order does not include attorneys of record of petitioners for adoptions. While the statute allows “parents of the child and their attorneys” with access to the records without a court order, at the time that a petition for adoption is filed, the petitioners are not the legal parents of the child. Chapter 63 pertains to adoptions. Adoptions in scenarios where there has been a voluntary relinquishment of rights and adoptions by relatives or step-parents are filed in Domestic Relations (Family Law) and given DR case numbers. Section 63.162(2) states, “All papers and records pertaining to the adoption . . . are confidential and subject to inspection only upon order of the court . . . .” While the statute provides certain exceptions to the confidentiality of adoption records, none of those exceptions applies to an attorney of record for the
petitioners in an adoption. Therefore, attorneys of record for petitioners for adoptions in Domestic Relations cases need a court order to access court records in a pending adoption case. Pursuant to the current Access Security Matrix issued by the Florida Supreme Court, AOSC16-14, attorneys of record and the parties in pending adoptions in Domestic Relations cases have access to confidential records. Accordingly, access is granted pursuant to the Florida Supreme Court order that mandates the matrix. (Their access is limited once the adoption file is closed.) The matrix does not have a separate category for “Adoptions – Dependency.” Clerks are required to provide access to court records in accordance with the matrix. In summary, following the requirements of OSCA’s SRS directives, an adoption arising from a TPR is opened as a Dependency case. In accordance with §39.0132, court records in Dependency cases are confidential, and attorneys of record for adoption petitioners are not included in the list of persons who have access without a court order. Attorneys of record for petitioners in adoptions in Domestic Relations cases have access to the court records while the case is pending
pursuant to AOSC16-14, a Florida Supreme Court administrative order. With regards to access for attorneys for petitioners for adoptions arising from TPRs, AOSC16-14 and the matrix are silent. As described, Clerks have conflicting instructions, statutes, and a Florida Supreme Court order pertaining to the access for attorneys of record for petitioners to court records in adoptions arising from TPRs. While it is logical that an attorney of record for the petitioners in an adoption should have access to the case, the fact remains that the Clerk is trying to interpret and follow conflicting or, at best, inconsistent mandates, and the mandates do not in themselves lead to a logical conclusion. In agreement with the judiciary in Escambia County, the Clerk in Escambia is now providing attorneys of record in all types of adoptions access to the cases in which those attorneys have made an appearance on behalf of the petitioners, regardless of whether the petition is filed in Dependency or Domestic Relations. However, we also are seeking clarification from the Florida Courts Technology Commission and Florida Supreme Court to address this particular scenario and provide clear instruction.
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Judge Amy Brodersen Investiture...
Judge Brodersen’s husband Geoff and son William assist with her robe
Escambia Clerk of Court Pam Childers reads the appointment from Gov. Rick Scott to Judge Brodersen
Judge Jan Shackelford administers the Oath of Office as Judge Brodersen’s mother Penny Price holds the Bible
PLSSA Auction & JA Luncheon...
This year’s holiday charity auction raised $1,400 for Capstone Adaptive Learning and Therapy Center Escambia and Santa Rosa judicial assistants enjoy the luncheon in their honor 28 The Summation www.esrba.com Winter 2016
ESRBA Holiday Party 2016 at Gulf Coast Community Bank...
Aiden, Bridget and Isabelle Roberts Mike Doubek and Malcolm Ballinger
Emily Huang, Christopher Lee, and Leah Garrett
Bill Wade, Maureen and Gerry McGill
Hank Gonzalez and Greg Brock Linda Wade joined by Judges Amy Brodersen, Jan Shackelford, and Kerra Smith
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Legal Services of North Florida’s Jazz for Justice 2016...
Young Lawyer Division Breakfast with Santa 2016...
Santa and his elves prepare to meet the little ones for Breakfast with Santa Foster children prepare to give back to foster fathers with an array of holiday presents collected for foster fathers 30 The Summation www.esrba.com Winter 2016
Announcements
Calendar
Jonathan Walker Appointed as Judge of Compensation Claims
December 26 Christmas Day Observed Bar Office Closed
On September 12, 2016, Governor Rick Scott announced the appointment of Escambia-Santa Rosa Bar Association member Jonathan Walker as Judge of Compensation Claims. Jonathan Walker, 50, of Pace, has been a managing partner with Conroy Simberg since 2002. He was previously an assistant county attorney in Walton County from 2000-2001 and an assistant state attorney for the First Judicial Circuit from 1997-1999. Walker received his bachelor’s degree from University of West Florida and law degree from Samford University. Judge Walker began serving the court in Panama City in October.
January 2 New Year’s Day Observed Bar Office Closed January 16 Martin Luther King Day Bar Office Closed January 19 January Bar Meeting Featuring: Nicole Grinnan (UWF Underwater Archaeology) New World Landing Noon - 1 pm
Honorable Robert Hilliard Appointed to the Trial Court Budget Commission Santa Rosa County Judge, Robert Hilliard, has been appointed by Florida’s Supreme Court Chief Justice Jorge Labarga to serve a six-year term to the Trial Court Budget Commission. The purpose of the Trial Court Budget Commission is to oversee the preparation and implementation of the trial court component of the judicial branch budget. The Commission is directly responsible for recommending budgeting and funding policies and procedures for the trial court budget, in order to support a trail court system that will effectively carry out the administration of justice. The Commission’s membership is comprised of 14 trial court judges and seven trial court administrators.
Tiffany Sullivan Appointed Executive Director of Innovation Coast Tiffany Sullivan will tap into her background as an attorney and community leader to guide her new role as executive director. She credits relationship-building as the driving force behind her success. Jim McClellan, chair of the board of directors for Innovation Coast, and director of marketing and communications for AppRiver, said the board is excited to have someone of Sullivan’s caliber joining the organization. Sullivan, who grew up in Jay, Fla., practiced as a civil and commercial litigator for 14 years. She serves in several leadership roles in the community, including the Santa Rosa County Chamber of Commerce, Escambia/Santa Rosa Bar Association, Leadership Santa Rosa, Pensacola Young Professionals and Boys and Girls Club— Santa Rosa County. She is also a representative of LegalShield, a service that provides legal counsel to members. When Sullivan assumed her role as executive director on Nov. 1, she began to manage day-to-day operations; direct recruitment and membership development of technology and knowledge based companies; and work closely with related organizations to plan fundraising activities and campaigns. Sullivan will hit the ground running as she oversees the Innovation Awards, the most lucrative business plan competition in Florida. For more information on Innovation Awards, please visit awards. innovationcoast.com.
January 27 Judge Jeffrey E. Lewis Investiture M.C. Blanchard Judicial Building, Courtroom 407 2:30 pm February 10 Dependency Seminar M.C. Blanchard Judicial Building, Multimedia Room 9 am – Noon February 16 February Bar Meeting Featuring: Pensacola Opera “Dead Man Walking” Noon – 1 pm February 23 RIMKUS / ESRBA Seminar Pensacola Grand Hotel 8:30 am – 4:30 pm
Classifieds If you would like to place a classified ad in the next edition of The Summation, please call (850) 433-1166 ext. 29, or send an email to dawn@ballingerpublishing.com.
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