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Escambia/Santa Rosa Bar Association


Spring 2018

Volume 7/ Issue 1

Texting, At What Cost? The Struggle to Legislate Distracted Driving

In This Issue:

Argo Corner Accessing Records Online The Federalist Society

Table Of Contents

Escambia-Santa Rosa Bar Association 216 South Tarragona Street, Suite B Pensacola, FL 32501 Phone: 850.434.8135 email: esrba@esrba.com Lawyer Referral Service: 850.434.6009 Executive Director Michael Doubek mike@esrba.com Editor Michele Schamberger michele@esrba.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 Gerald McGill Susan Woolf Tanner Yea Michael Thomas Aurora Osborn

Carrie Cromey Caroline Peterson Michele Schamberger Sheryl Lowenthal Charlie Penrod Mike Doubek

From the President

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Board of Governors

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A Special Thank You to Stephen S. Echsner

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On The Move

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First Judicial Circuit of Florida Directory

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Young Lawyers Division News

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Judge Tarbuck Tribute

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Accessing Records Online

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Texting While Driving

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News From the Clerk

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The Federalist Society

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Argo Corner Page 16 Law Internships 101

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Phi Alpha Delta Thanks

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The Bottom Line Page 20 Did You Know? Page 21 In The Community

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Announcements and Calendar

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Owners • Malcolm & Glenys Ballinger Publisher • Malcolm Ballinger Executive Editor • Kelly Oden Editor • Hana Frenette Art Director • Guy Stevens Graphic Designer & Ad Coordinator • Carly Stone Assistant Editor • Tanner Yea 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. © 2017 Ballinger Publishing. All Rights Reserved.

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From the President Courthouse Clearance By JODI COOKE

If you practice law in state court here in Escambia County, you are no stranger to the security olympics at the front door of the M.C. Blanchard Building. Entry requires all non-courthouse personnel, including private attorneys, to remove belts, overcoats, change, jewelry, watches, and sometimes more in order to gain access to the Clerk’s office, the Court, or the law library. The line is often long and, while we certainly appreciate the security afforded by those efforts, the process can be tedious and time-consuming for attorneys who are in a hurry to make a hearing or obtain a necessary document. Those same attorneys, who passed extensive background checks through the Florida Bar upon admission to practice, have long requested some accommodation for less cumbersome access. Courthouse junkies rejoice, for ye need de-accessorize no more. Based on feedback from our members, on April 1, 2018, the Escambia-Santa Rosa Bar Association (ESRBA) will roll out a new ID Badge program for Florida Bar members who practice in Escambia County. The ID Badge will not be a state-issued Florida identification card, but it will entitle the holder to pass through security at the M.C. Blanchard Building without removing his or her belt, jewelry, or watch. Badge holders will still need to pass through the metal detector and have briefcases and any other items scanned. The Badges will be valid through March 2020 in accordance with the policies and procedures of court administration, as long as the Badge holder remains a member in good standing of the Florida Bar. ESRBA Members will receive a Badge application form via email on April 1st. Applications can also be obtained in person at the ESRBA Office. Applicants should complete the form and return it to the ESRBA Office with payment of $50.00. ESRBA staff will verify the applicant’s status with the Florida Bar and provide the applicant with instructions to have their photo taken by Studio One Photography. The ID Badge will be produced by ProLegal Discovery Solutions and available for pick-up at their offices within two business days. The photos taken by Studio One will also be used by the ESRBA in its membership composite to be produced later this year, its next membership directory, and other ESRBA productions. The ESRBA is excited to provide the ID Badges as a benefit to its members and appreciates the partnership with Studio One Photography and ProLegal Discovery Solutions that enables it to do so. This program simply could not have happened without their help. If you have any questions about the ID Badge program or to obtain an application, please contact the ESRBA Office at (850) 434-8135.

Spring 2018 www.esrba.com The Summation 3

Board of Governors By STEPHEN ECHSNER

Report from

The Florida Board of Governors The Florida Bar Board of Governors met on January 26, 2018, in Tallahassee. The major actions of the Board and reports received included: The Special Committee on Mental Health and Wellness of Florida Lawyers is holding four town hall meetings, seeking requests for information about establishing a 24/7 hotline/helpline for lawyers, and will soon be unveiling a focused Health and Wellness Center webpage with many resources for lawyers. A successful CLE seminar during the Bar’s Winter Meeting “The Secrets to a Happy, Successful Legal Career” and a limitedseating Miami seminar “All Rise! A Practical Guide to Lawyer Hope, Health and Wellness” were both videotaped and will soon be available for all Bar members to view. Visit the new webpage and bookmark it to access the growing list of resources available to Florida Bar members and see when the upcoming town halls are in your area. Members of the Florida Supreme Court attended the meeting and Chief Justice Jorge Labarga reported on a variety of issues, including the Florida Access to Civil Justice Commission, live Facebook broadcasts, a new podcast program, exploring guardianship issues, and monitoring the Constitution Revision Commission. The Florida Bar continues to provide technical assistance to the Constitution Revision Commission and a public education program for Floridians “Protect Florida Democracy: Our Constitution, Our Rights, Our Courts.” The Bar’s Special Committee on the Constitution Revision Commission in partnership with the Young Lawyers Division developed a 12-part video education series on each section of the Florida Constitution for the commissioners. The series is also avail-

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able for free continuing legal education credit to all Florida Bar members. Course numbers are listed here. The CRC Education Series is posted here. The CRC recently announced the schedule for a second series of public hearings to be held in Ft. Lauderdale, Melbourne, Jacksonville, Pensacola and St. Petersburg. As the board was meeting, the Florida Legislature completed its third week of the 2018 session. In addition to the hundreds of bills moving through the process, the House and Senate rolled out the first drafts of their budgets. The Florida Bar is monitoring the budgets, bills on appointments to Judicial Nominating Commissions, legislative review of federal and state court rulings, appointment of attorneys for dependent children with special needs, Guardian ad Litem directsupport organization, jurisdiction of county courts, and certification of judges. For summaries of legislative of interest to the legal profession and weekly updates: www.floridabar.org/legislativeactivity A pilot program for the proposed free automated trust accounting solution for Bar members could be underway by Annual Convention. A special committee has been working with a technology provider on a program to help Bar members avoid technical violations of trust accounting rules and resulting disciplinary action. At present, The Florida Bar Practice Resource Institute provides trust accounting and monthly reconciliation forms using Microsoft Excel free of charge, as well as other resources including the required compliance notice, FAQS and forms to open IOTA accounts. An amendment to Bar Rule 6-10.3 was approved which specified that one hour of the five required CLE hours of ethics, professionalism, mental health and sub-

stance abuse and bias elimination courses during each 33-credit, three-year CLE cycle must be in professionalism. The Supreme Court must approve the rule change. For more information on professionalism CLEs, visit https://www.floridabar.org/prof/pcle/. Based on a determination that an insurance product which reimburses attorneys for the costs incurred in representing a client in a contingent matter if the case is lost at trial may benefit the client, the Board decided that it may be permissible for attorneys to request reimbursement from their clients from any recovery for the cost of this “litigation cost protection” insurance. Bar staff has been directed to issue an advisory opinion which sets forth strict guidelines as to when an attorney may seek reimbursement for this cost and the requisite disclosures to the client. The February 15 issue of The Florida Bar News provides more details on the Board’s discussion. Amendments requested by the Supreme Court to the proposed rules to allow attorney spouses to military personnel stationed in Florida to practice under certain conditions were approved. The changes set a five-year limit on the practice and require those qualified to be mentored by a Bar member or associated with a Florida law firm. The petition was filed with the Supreme Court on Monday, Jan. 29, case number SC18-158. The Young Lawyers Division launched a Legal Accelerator website, a one-stop hub for advice on issues frequently faced by young lawyers. All Florida Bar members may benefit from the guidance provided. Log in to the Members Portal to access the site.

A Special Thank You To Stephen H. Echsner From the Escambia-Santa Rosa Bar Foundation By Mike Doubek


n December 31, 2017, Stephen Echsner stepped down as the Escambia-Santa Rosa Bar Foundation’s Board President after serving in that role since 2000. Over those 17 years, Steve has steered the Foundation through prosperous as well as lean times. All the while, the Foundation experience steady growth while having a positive impact many local individuals and organizations. Seventeen years ago, the Foundation was a small, struggling organization with an endowment of less than $15,000. Today, that endowment has grown to $115,000. It was always the running joke that Steve would continue to lead the Foundation as President until it reached the endowment goal of $100,000. We are happy to report – mission accomplished. Over the years, the Foundation has done so much more than just grow its endowment. It has served as a conduit for Bar Association related fundraisers to help area organiza-

tions and programs, as well as awarded grants for various endeavors. The Foundation has been involved in awarding grants totaling $203,743! Most of those grants ($189,873) were the result of special event fundraising activities such as the Young Lawyer Division’s Breakfast with Santa (formerly known as Holidays in January) $117,330, Gulf Coast Kids House Black Tie Gala, $51,000, and Law Week designated charities like Backpack Buddies, $9,115. The remainder of the grants were expended out of operating revenue for causes such as High School Mock Trial competitions, $4,800, Law Week Courthouse Tours for

school children, $3,250, John Appleyard publications for Middle Schools, $2,215, scholarships for legal studies at Pensacola State Colleges, among other assorted programs. Steve Echsner helped keep the Foundation’s focus on growing the endowment in the midst of all this great grant activity. One of the key components for securing the endowment was the creation of the Wall of Honor display in the M.C. Blanchard Judicial Building. The Wall of Honor was dedicated in 2007 as a way to celebrate the lives and careers of deceased judges and attorney members of the EscambiaSanta Rosa Bar Association. For a modest donation to the Foundation, the name of

a former member can be enshrined on the Wall. To-date, we honor 17 individuals on the display. The entire Escambia-Santa Rosa Bar Foundation Board of Directors, under Stephen Echsner’s leadership, should be proud of the positive impact they have made in the community over the last 17 years. Thank you for your hard work and dedication!

Mike Doubek is the Executive Director of the Escambia Santa Rosa Bar Association

Spring 2018 www.esrba.com The Summation 5

On the Move Greater Pensacola Chamber Honors PACE Award Winner Doug Bates, attorney with the Clark, Partington law firm, was named "Emerging Business Leader of the Year" for his vocation, advocacy and volunteerism in the community. A member of the boards of Pensacola State College Foundation and Pensacola Sports, Bates also serves as a youth baseball coach and raised more than $14,000 with the "Real Men Wear Pink" campaign for the American Cancer Society. The PACE Awards are presented to outstanding individuals in the community who have made significant contributions to the area's economic progress, according to a news release from the chamber.

Congratulation to the following ESRBA Members for being recognized as Inweekly’s Rising Stars for 2018

Cecily Parker Emmanuel, Sheppard & Condon

Virginia Ralls has become partner at Chase, Hidgon & Ralls, PLC

Hunter Higdon has become partner at Chase, Hidgon & Ralls, PLC

Benjamin Shell Emmanuel, Sheppard & Condon

Caityln Prichard Aylstock, Witkin, Kreis & Overholtz, PLLC

Galen Novotny has made partner at Emmanuel Sheppard & Condon

Eric Stevenson with Stevenson Klotz has opened a new office location at 510 E. Zaragoza Street, Pensacola, FL 32502

Frederick Longmire Office of the State Attorney

Jonathan R. Mayes has opened Law Office of Jonathan R. Mayes, PLLC, located at 201 East Government Street, Suite 33, Pensacola, FL 32502

D. Grayson Miller has joined Cole Scott & Kissane, P.A. as an associate.

Cameron Towns Gore Clark Partington

Buzz Ritchie has recently announced his retirement from The First Bank. Future correspondence may be sent to britchie143@gmail.com

Have you recently relocated or been promoted? Share your updates by

Adam White has made partner at Emmanuel Sheppard & Condon

emailing us at Christopher Klotz with Stevenson Klotz has opened a new office location at 510 E. Zaragoza Street, Pensacola, FL 32502

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Megan Crenshaw has joined the Escambia County Court Administration located at 190 W Government St, Pensacola, FL 32502


ESCAMBIA COUNTY JUDGES DIVISION FIRST NAME LAST NAME A Edward P. Nickinson, III C&T Jennie Kinsey E Jan Shackelford F J. Scott Duncan G Coleman Lee Robinson H Michael G. Allen J John L. Miller K&X W. Joel Boles L&R Darlene F. Dickey M Linda L. Nobles N Gary L. Bergosh P Thomas V. Dannheisser ONE Joyce H. Williams TWO Kerra Smith THREE Amy Brodersen FOUR & Q Jennifer Frydrychowicz FIVE Pat Kinsey

EMAIL esc.divA.eserve@flcourts1.gov esc.divC.eserve@flcourts1.gov esc.divE.eserve@flcourts1.gov esc.divF.eserve@flcourts1.gov esc.divG.eserve@flcourts1.gov esc.divH.eserve@flcourts1.gov esc.divJ.eserve@flcourts1.gov esc.divK.eserve@flcourts1.gov esc.divL.eserve@flcourts1.gov esc.divM.eserve@flcourts1.gov esc.divN.eserve@flcourts1.gov esc.divP.eserve@flcourts1.gov esc.div1.eserve@flcourts1.gov esc.div2.eserve@flcourts1.gov esc.div3.eserve@flcourts1.gov esc.div4.eserve@flcourts1.gov esc.div5.eserve@flcourts1.gov

DIVISION FIRST NAME LAST NAME A David Rimmer B John F. Simon C Ross M. Goodman D Marci L. Goodman ONE Robert Hilliard TWO Jose A. Giraud

EMAIL shelia.hansen@flcourts1.gov Jane.fillingim@flcourts1.gov robin.white@flcourts1.gov donna.flournoy@flcourts1.gov jena.labet@flcourts1.gov Debra.coker@flcourts1.gov

PHONE 850-595-4439 850-595-4442 850-595-4453 850-595-4465 850-595-3710 850-595-3715 850-595-4351 850-595-4448 850-595-4445 850-595-4459 850-595-4456 850-595-4464 850-595-4433 850-595-4430 850-595-4420 850-595-4427 850-595-4424

SANTA ROSA COUNTY JUDGES PHONE 850-981-5542 850-981-5540 850-981-5632 850-981-5541 850-981-5543 850-981-5544

Spring 2018 www.esrba.com The Summation 7

Young Lawyers Division

YLD Unveils Newest Member Benefit – Legal Accelerator Website By: Adam White


Small Affiliate of the Year Announcement By: Cecily Parker


s President of the ESRBA Young Lawyers Division, I am pleased to announce that our organization was recently named the Small Affiliate of the Year for 2017 by the Florida Bar Young Lawyers Division Board of Governors. This Award recognizes a local young lawyers division that uses few resources to provide excellent programing to its members. Our YLD received this award because of the programing we have worked hard to provide our members. This past year the YLD hosted many happy hours, lunches, and opportunities for members to connect. In addition, the YLD hosted a Law Week Judicial Reception, a Professionalism Panel for summer clerks and new lawyers, and a paddle boarding wellness event. The YLD has positively impacted the broader Pensacola community through sponsorships of Jazz for Justice, Backpack Buddies, Breakfast with Santa, OnBikes Pensacola, and the High School Mock Trial Competition. Our YLD looks forward to continuing this success next year through a variety of events and sponsorships that we are already planning. If you are a lawyer who is under the age of 35 or who has been practicing for fewer than five years, please join us at our Monthly Happy Hours held on the first Tuesday of each month at 5:30 PM at V-Paul’s. Also watch your email inbox for more information about upcoming events. If you have any questions about our YLD or would like to become more involved, I encourage you to reach out to me a cparker@esclaw.com or talk to any of our YLD Board Members. Cecily Parker is an associate at Emmanuel Sheppard & Condon and current President of the Escambia Santa Rosa Board Association Young Lawyer’s Division

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t the annual Affiliate Outreach Conference this month, The Florida Bar Young Lawyers Division (“YLD”) launched its new “Legal Accelerator” website. The Legal Accelerator can best be described as a “virtual mentor” that serves as a one-stop hub for obtaining advice on a variety of common issues encountered by young lawyers. This new website is housed behind The Florida Bar member portal and can only be accessed by licensed Florida attorneys. One of the primary roles of the YLD is to assist its members in the transition from law school to law practice. Over the past several years, the YLD has focused its efforts on providing resources to help new attorneys operate in today’s ever changing and challenging legal marketplace. In doing so, the YLD has created substantial content for its members including how-to videos, webinars, basic CLEs, blog posts, and more. The Legal Accelerator aggregates all of this previously existing content into one location. In addition to the existing content, the YLD has filmed approximately 1,000 mentoring videos covering approximately 500 topic areas. These videos, which continue to be created, have been filmed by over 100 experienced Florida practitioners, including Judges. This new website is the vision of current YLD President Zack Zuroweste. “This is the first website of its kind and will revolutionize the way in which young lawyers receive answers to a variety of questions. We want the Legal Accelerator to be the first-stop on every young lawyer’s path to solving an issue they may be facing,” said Zuroweste. Similar to Google, the Legal Accelerator is easily searchable and organized in a user-friendly manner allowing lawyers to efficiently and effectively find answers to their questions. The content located on the Legal Accelerator is divided into five (5) main categories: 1) Professional Development; 2) Ethics & Professionalism; 3) Substantive Legal Questions; 4) The Florida Bar; and 5) Health & Wellness. Additionally, the content is labeled with multiple “clickable” descriptive tags for even easier searchability across the website. Santo DiGangi and Andrew Pickett led the effort to create the new website as the current chairs of the Legal Accelerator Committee. “This revolutionary project could not have been achieved without the hard work and dedication of many people,” said DiGangi. “We hope that our members will utilize this cutting edge resource and benefit from the outstanding content it provides.” The YLD plans to continue to add additional videos and content to the website throughout this year. The Legal Accelerator can be accessed through The Florida Bar member portal located at www. floridabar.org Adam White is a partner at Emmanuel Sheppard & Condon and past President of the Escambia Santa Rosa Board Association Young Lawyer’s Division

Hero & A Scholar Tribute to Judge Joseph Quincy Tarbuck


etired Judge Joseph Quincy Tarbuck passed away on February 7, 2018, at his home in Gulf Breeze, Florida. A native of Pennsylvania, he joined the United States Army at age 17 after graduating high school. He served in an artillery unit in the Korean War and survived 37 & 1/2 months as a prisoner of war in North Korea. After repatriation, he studied geology at Florida State University where he was a member of Sigma Alpha Epsilon fraternity. He completed his education at the University of Florida College of Law.

Judge Tarbuck and Daisy

Joe Tarbuck moved to Pensacola and practiced law in the area for 23 years. He was a member of the Ancient and Accepted Scottish Rite Masonic Temple, 33rd degree, and the Gulf Breeze Rotary Club, among other civic organizations. Judge Tarbuck was appointed to the Circuit Court in 1982 where he served with distinction until his retirement in 2001. He continued to work for several years afterward as a Senior Circuit Judge.

Judge Tarbuck and son-in-law Eric Schurger, Esquire

Judge Tarbuck hunted and was a long time member of Hit-nMiss Hunting Club in Alabama. He also enjoyed woodworking and gardening. He rarely missed an episode of Wheel of Fortune. He was predeceased by his parents Miles and Agnes Tarbuck, sister Dorothy Kostelac, brother Nicholas Tarbuck, and sister Rose Dykes. He was preceded in death in 2001 by his first wife, Carolyn Williams Tarbuck, with whom he had four children and shared a passion for fishing at Toeshemoe Camp in Alabama. He is survived by his second wife, Anita Wallace Tarbuck, with whom he delighted in dining at local restaurants daily. She was his companion to the end of his life.

Daughter Elizabeth “Beth” Schurger, son-in-law Eric Schurger, Esquire, Judge Tarbuck and Carolyn Tarbuck

Judge Tarbuck also is survived by his son Joseph “Joey” Quincy Tarbuck, Jr. & daughter-in-law Leisa Tarbuck; son William “Billy” Miles Tarbuck; Christopher “Chris” Robert Tarbuck & daughterin-law Stacey Tarbuck; daughter Elizabeth “Beth” Schurger, sonin-law Eric Schurger, Esquire, and grandsons Chase and Jackson Schurger in whom he delighted.

Judge Tarbuck Spring 2018 www.esrba.com The Summation 9

Accessing records online brings lawyers into Gary Blankenship, contact with the ‘security matrix’ ByOriginally published in


ost Florida clerks of courts have placed their court records online, where they can be accessed by lawyers and the public.

However, users must go to each clerk’s website to gain access to that county’s court files, although a second statewide database of court records, now only available to governmental agencies, may soon be available to attorneys and others. Accessing the county-by-county records, according to Santa Rosa County Judge Robert Hilliard, can be a bit of a challenge. Hilliard chairs the Access Governance Board of the Florida Courts Technology Commission, which among other functions monitors clerks who are putting records online. “What we have in Florida are 67 independent counties overlaid by 20 judicial circuits, and each of those entities has certain policies and procedures that have been in operation for many decades. We are now transitioning into an environment that requires certain definition so it can be used by a computer,” Hilliard said. 10 The Summation www.esrba.com Spring 2018

The Florida Bar News

That means access for each county’s records will be through that county clerk of court’s website and there may be local rules or administrative orders that affect the access, he said, adding, “They have differences about what they choose to offer online versus over the counter.” Regular users can become “registered users” in a county, which will speed access because there is some identification of the user, Hilliard said. Accessing the records online will bring lawyers, perhaps for the first time, into contact with the “security matrix” that protects confidential information in court filings. Hilliard said the ticklish job about making records available via the internet is shielding sensitive information. The matrix divides potential users of court records into various categories — judges, attorneys of record, state attorneys, public defenders, the public, guardians ad litem, etc. — and then determines what access they will get.

Judges basically have access to all information, except records expunged or sealed under F.S. Chap. 943. Attorneys of record get access to most records except those sealed under F.S. Chap 943, made confidential by R. Jud. Admin. 2.420, and some domestic relations records. Attorneys not of record have the same access as the public, Hilliard said. The matrix establishes two levels of public access. Those who physically go to a clerk’s office may get slightly better access than those who anonymously pull up records online. “I look at it [the security matrix] as a giant [oldfashioned telephone] switchboard,” Hilliard said. “On one side, you’ve got all this information, some public and some private. On the other side, you’ve got all these different people with different roles. You’ve got citizens, attorneys, private investigators, guardians ad litem, moms and dads of kids, physicians, and judges. The access security matrix is the

switchboard between all these different roles and all this different information.” The matrix is based on state laws governing confidentiality, Bar and court rules, and administrative policies, and the FCTC worked with the Bar’s Rules of Judicial Administration Committee and the Office of the State Courts Administrator in assembling the document. The matrix is still being refined. The FCTC at its August meeting adopted a tweak to fix part of the matrix, which blocked judges from getting financial information in an obscure type of case. And Miami attorney Joe George led a charge to change another section of the matrix, which prevented the parents of children with disabilities from accessing and filing information online after they filed to become guardian advocates for their children. The FCTC recommended changes to the Supreme Court, which has final jurisdiction. “The matrix is designed to be responsive to change as the system evolves. It’s relatively new and really has been out in the field a relatively short time,” Hilliard said. “It is only when something is put into the field that you can identify issues that come up.” According to Office of the State Court Administrator records, Holmes, Suwanee, and Taylor counties are not yet providing any online access. Seminole County has had its application approved to begin a pilot program. Certification is pending for Hamilton County’s pilot program. Bay, Brevard, Lee, Monroe, Pasco, and Wakulla counties are conducting their pilot programs for online access. The remaining 56 counties have been certified by the Supreme Court, on the FCTC’s recommendation, and are providing online access. “The clerks have been just great about working with us,” Hilliard said. The second system being worked on, which could solve the problem of having to go to each county to get its records, is an expansion and upgrading of the existing Comprehensive Case Information System, or CCIS, which is maintained by the state’s clerks of circuit courts. CCIS provides case and statistical information to the courts and other state agencies. In a report to the FCTC at its August meeting, Maryann Marchese,

“The access security matrix is the switchboard between all these different roles and all this different information CCIS project manager for the Florida Court Clerk & Comptrollers, said the upgrade, known as Version 3.0, will give real-time access to cases in each clerk’s case management system, as well as data from those systems. There will also be search capabilities. “All 67 counties provide case data to CCIS,” Marchese said. “Sixty-five of the 67 have implemented CCIS 3.0, which includes the real-time web service. The remaining two are planning to implement it . . . by the third quarter of this year.” Currently, CCIS has 44,370 active users in 167 agencies, Marchese said. At an earlier FCTC meeting, FCCC IT Director Melvin Cox said part of the improved CCIS plan is to add all public access security roles, including attorney access. This security enhancement, when completed, will allow clerks the opportunity to examine the feasibility of giving attorneys and other users onestop access to statewide court records

and allow them, for example, to check pending statewide legal actions for a potential client. One task necessary for that access will be meshing the CCIS data with the security matrix, Marchese and Hilliard said. “We want to make sure the data is validated, reliable, secure, available, audited,” Marchese said. Molly Kellogg-Schmauch, spokeswoman for the FCCC, said the upgrade to CCIS is expected to be finished by the end of the year. “Access for other entities, including attorneys, will be determined once that is finalized and will require a policy decision by the clerks,” she said. Hilliard said the electronic access to court records has many advantages, pitfalls, and unknowns. He noted some companies are “data mining” court records for information, and there have been cases in which inmates have accessed various records from different databases and different agencies to try to identify police informants. “It brings sometimes unforeseen consequences,” he said. “Lawyers serve the public, and that’s one thing that we keep in mind. This is often stuff that is time-critical for many people, like the media, the attorneys, the parties. As we move more into an electronic model from our paper-based model, we certainly don’t want to do anything to slow it down.

Spring 2018 www.esrba.com The Summation 11

Texting, At What Cost? The Struggle to Legislate Distracted Driving by Michael S. Thomas

By now, we all know that texting while driving is dangerous. As far back as 2009, a New York Times poll showed that 97% of Americans supported a prohibition on texting while driving.


y 2014, a National Safety Council poll found that 73% of respondents believed that texting while driving laws needed stronger enforcement. While there is overwhelming support for texting while driving legislation and awareness of the dangers brought by using one’s cellphone while driving, many drivers have no intention to follow these laws. A State Farm survey conducted in 2014 found that, although 81% of the respondents believed that texting while driving was “very distracting,” 33% of all drivers and 58% of drivers age 18-29 admitted to texting while driving. Perhaps more alarming, the Florida Department of Highway Safety and Motor Vehicles reported nearly 50,000 crashes and 235 fatalities in Florida related to distracted driving in 2016 alone.

Needless to say, texting while driving is unquestionably a bad thing to do. Of course, “texting” is only one of the many distracting features that our phones today offer us. In addition to enabling interpersonal communication, our “phones” enable us to access the internet, play video games, take hi-definition videos, perform video calls, and even serve as a navigation system or electronic personal assistant. Unlike cellphone technology, which continues to significantly evolve each year, legislation aimed at curbing cellphone use while driving has been slow to upgrade. As of 2017, 47 states, Washington D.C., Puerto Rico, Guam, and the U.S. Virgin Islands all banned cellphone use while driving in some form. But many of these states only ban the act of receiving or sending a text message or email. For exam-

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ple, Louisiana law states that “no person shall operate any motor vehicle upon any public road or highway of this state while using a wireless telecommunications device to write, send, or read a textbased communication.” On the other hand, even the state laws which broadly prohibit cellphone use in general are not without their flaws, as many of these states allow “hands-free” cellphone use. If the intent behind distracted driving legislation is to make our roadways safer, allowing “hands-free” cellphone use arguably defeats the purpose behind distracted driving legislation. While many of us may feel as though we are safer drivers when using some form of hands-free technology, some studies would suggest voiceto-text technology such as Apple’s Siri still places significant cognitive demands upon drivers, even without

drivers taking their hands or eyes off of the road. One study conducted by AAA found hands-free technology to be so cognitively demanding that drivers remained cognitively distracted for up to 27 seconds after finishing a phone call or selecting a song to play! So what’s a legislature to do? Florida joined the list of states banning some form of cellphone use while driving in 2013 when the state enacted § 316.305, the Florida Ban on Texting While Driving. Like many other texting while driving laws, Florida’s law bans “manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communications device or while sending or reading data on such a device for the purpose of nonvoice interpersonal communication…” Yet Florida breaks from the majority in one crucial way:

Florida enforces its prohibition as a secondary offense. This means that an officer cannot make a traffic stop solely based on the driver’s violation of the texting while driving statute; there must be another underlying offense to justify the traffic stop.

Yet Florida breaks from the majority in one crucial way: Florida enforces its prohibition as a secondary offense.

Critics of Florida’s ban argue enforcing the law as a secondary offense hampers law enforcement’s ability to cite drivers for blatant violations of the law. A year after Florida enacted its ban, law enforcement had only issued roughly 2,000 tickets for texting while driving. These statistics are shockingly low when compared with Florida’s enforcement of its seatbelt law, which became a primary offense in 2009. In 2014 alone, Florida issued 279,200 seatbelt citations. This is significant because the Florida Department of Transportation estimated that 88.8% of drivers and passengers wore their seatbelts in 2014, a number that is ostensibly much higher than the number of individu-

The Florida Legislature is currently debating whether to amend § 316.305 to classify texting-while-driving as a primary offense, enabling law enforcement to issue a citation for texting-while-driving without having to wait for a driver to commit another offense. Although the House Bill has the support of Florida Speaker of the House Richard Corcoran, some legislators on both sides of the isle have expressed concerns. Some on the right cite civil liberties and a hesitancy to allow drivers to be pulled over for looking up directions on their phones. Conversely, some on the left fear enforcing the texting while driving law as a primary offense could lead to increased racial profiling. Senate Bill

als who refrain from using their phone while they drive.

90 and House Bill 33 each attempt to address these concerns: both bills would add a new provision to the law requiring law enforcement to advise those suspected of texting while driving of their right to decline a search of their cellphone, and legislators have proposed requiring law enforcement to collect and report the race and ethnicity of those ticketed for the offense. The fate of the Florida Ban on Texting While Driving may very well be determined by the time of this article’s publication. Regardless of whether the Senate or House bill becomes law, one thing is certain in light of the overwhelming statistics: it’s best for all of us to keep our phones out of sight and out of mind when we get behind the wheel.

Michael Thomas is an associate attorney with Emmanuel Sheppard & Condon.

News from the Clerk

Court Managers in the M.C. Blanchard Judicial Building by Pam Childers


s you walk the halls of the Clerk’s Office at the M. C. Blanchard Judicial Building, you may notice some new faces smiling at you from the front counters – and you may be wondering where some of the more familiar faces have gone. The introduction of electronic court records has brought with it efficiencies, leading to reassignment of some personnel while others have naturally come to the end of their tenure with the Clerk’s office. Allow us to take you on a walk behind the scenes of the Clerk’s courtside offices. The Traffic Division includes Collections and is located on the first floor. The 13 employees in Traffic assist the most walk-in customers of any division and collect an average of over $70,000 in traffic fines and court-ordered financial obligations each week. Donna Oquist assumed management of Traffic after the retirement of Sandy Johnson in the summer of 2017. Donna has relied on her more than 12 years of experience managing the Circuit Criminal Division to take on Traffic and Collections. On the second floor, Circuit and County Criminal collapsed into a single “Criminal” Division in January 2016 under the management of Cassie Gilmore. Cassie brings to the Clerk’s Office her 22 years of experience in the private sector and a Master’s Degree in Public Administration. The office was restructured to allow for more cross-training of the combined 16 staff members and a focus on customer service and E-Portal filings. While 40% of the employees are relatively new, there are very seasoned employees guiding the office priorities and demanding workload. Around the corner, Ann Smith manages Probate, Marriage, Guardianship, and Mental Health. Her staff of five provides service to customers experiencing life’s highs and lows with tact and finesse. They join 14 The Summation www.esrba.com Spring 2018

over 100 happy couples in holy matrimony each month and issue over 4,000 marriage licenses per year while also performing their myriad of other duties. Ann has been with the Clerk’s office for 16 years and is extremely knowledgeable in all areas of her division. Next door to Probate is County Civil. That staff assists landlords, tenants, and litigants in small claims and county civil cases. The staff of four, managed by Karen Thorsen, is quiet and diligent about their work while providing hands-on assistance to persons who often have little experience with court processes such as small claims and evictions. Christy Sande was promoted to Manager of Circuit Civil in November 2015. Since then, she and her staff of six have provided seamless support to the judiciary through multiple judicial rotations while continuing their high level of service to the public. While the foreclosure case load has subsided over the past few years, they continue to hold approximately 75 foreclosure sales each month. Family Law tends to draw the most foot traffic on the second floor. Cheri High became the manager in November of 2015, just in time to lead the staff of 13 through a renovation that brought about private interview rooms and a secure waiting area for petitioners of injunctions. Factors that impact the speed of service provided in this division include an increase in pro se litigants, who require additional assistance and direction, and the training of new personnel. Currently, over 1/3 of the employees are new to the division. Tucked away in the accounting area, Codey Leigh, Esquire, hit the ground running as Director of Court Services in December 2016. He directly supervises three court divisions plus the accountants.

The Escambia County Clerk’s Office collects approximately $14 million annually, which must be balanced daily prior to being transferred to the State of Florida to fund Clerk budgets and mandated trust funds. Next door to Accounting, the jury office staff of three efficiently issue summons to over 55,000 individuals per year while also taking care of mail services. Any downtime is spent scanning and verifying records. It may take years, but eventually historical records will also be available online. You may have noticed the Court Division employees began wearing new blazers in the courtroom recently. The biggest change for Court Division came in mid-February as Marilyn Taylor, manager for over 11 years, left the Clerk’s employment to spend more time with her family. Marilyn’s absence will be felt by many who have worked with her throughout her 23 years with the Clerk. Some of you may remember when Marilyn was a courtroom clerk, always proficient in her duties and a smile for everyone. Her laughter will be missed by many. The Clerk hopes to fill the vacancy through an internal application process. Benjamin Franklin is quoted as saying, “Without continual growth and progress, such words as improvement, achievement, and success have no meaning.” Along this vein, the Clerk’s Office embraces each change in personnel – from entry-level staff to management – as an opportunity to advance and provide outstanding customer service to the judiciary and the public. Submitted by Jessica Whittle, Legal Assistant, and Pam Childers, Clerk of the Circuit Court and Comptroller

by Judge Gary Bergosh A local chapter of the Federalist Society recently formed in Pensacola, Florida in 2017. The Federalist Society is a nonpartisan and nonprofit organization dedicated to legal education and is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Emerald Coast Chapter held its first meeting at the Pensacola Yacht Club on October 4, 2017. The guest speaker was Hans A. von Spakovsky, a graduate of the Massachusetts Institute of Technology with a law degree from Vanderbilt University School of Law. Von Spakovsky is a senior fellow with the Heritage Foundation and a former member of the Federal Election Commission. A recognized authority for civil rights, civil justice, the First Amendment, immigration, the rule of law, government reform, campaign finance restrictions, voter fraud and voter ID, enforcement of federal voting rights laws, administration of elections and voting equipment standards, he spoke to the audience about immigration. He shared information about the law and about metrics for those living in Florida illegally, including children currently protected under the Deferred Action for Childhood Arrivals (DACA). According to von Spakovsky, as of 2015 there are almost 1 million people illegally residing in Florida, which costs taxpayers more than $3 billion dollars for education; more than $1.5 billion in public assistance, public health and government services; and over $550 million dollars for law enforcement annually. Later in his address, von Spakovsky also discussed illegal voting during elections. Von Spakovsky has stated,

Voter fraud is a problem, in the Commonwealth of Virginia and nationwide. The database that the Heritage Foundation started less than two years ago is already up to 474 cases and 755 criminal convictions and this is just the tip of the iceberg, since many cases go unreported and unprosecuted. According to a 2016 report by the Public Interest Legal Foundation, a small sample of only eight counties in Virginia showed 1,046 non-citizens who were registered to vote, many of whom had voted before they were removed from the voter rolls.

Following von Spakovsky’s speech, he answered substantive questions from the audience while everyone continued to enjoy the free and robust hors de oeuvres provided by the chapter. Attending the presentation included a dozen sitting and retired judges, the Mayor of Pensacola, an Escambia County Commissioner, an Okaloosa County Commissioner, a Gulf Breeze city council woman, and several attorneys and business men and women. On December 13th the chapter held its second meeting. The guest speaker was Ed Whalen, a Phi Beta Kappa honors graduate of Harvard University and Magna Cum Laude graduate of Harvard Law School where he served as the Editor of its Law Review. After law school, Mr. Whalen clerked for United States Supreme Court Justice, Antonin Scalia with whom he forged a lifelong friendship. Mr. Whalen co-authored a book about the late Justice, Scalia Speaks, with Justice Scalia’s eighth child, Christopher Scalia. The book is a compilation of several speeches given to many differing groups by Scalia during his tenure on the Supreme Court. Whalen noted the foreword to the book was written by Scalia’s colleague, Justice Ruth Bader Ginsburg and further stated that while Scalia and Ginsburg disagreed on

many issues, they respected each other professionally and became very close personal friends through the years they served on the Court. After autographing the book for many attending the event, Whalen then read several passages from his favorite speeches given by Justice Scalia, which can only be found in his book. After Whalen’s presentation there were perceptive questions from the audience that once again included many judges, attorneys, local politicians and business men and women. One non member attendee proclaimed that the Emerald Coast chapter of the Federalist Society had twice now hosted speakers of “Tiger Bay Club quality” for free along with gratis heavy hors de oeuvres. The Emerald Coast Chapter welcomes all citizens of the community to its quarterly speaker presentations which is free. The Chapter’s next speaker is Justice Charles Canady. Justice Canady will speak at our next chapter meeting on Wednesday, April 11, 2018 at the Pensacola Yacht Club. There will be reception at 5:30 p.m. followed by his presentation on the “Separation of Powers” at 6:15 pm. Gary Bergosh is the president of the Emerald Coast Chapter of the Federalist Society. For the last decade he has served as a Circuit Court Judge in the First Judicial Circuit of Florida. He was formerly the Chairman of the Escambia County School Board and is a retired U.S. Marine Corps Lieutenant Colonel. Spring 2018 www.esrba.com The Summation 15

Title IX: Rules Governing Gender Equality


ationally, one-in-four college women report being victims of rape or attempted rape, according to oneinfourusa.org. Through Title IX, victims on college campuses report campus crimes like these to university officials, along with dating violence, stalking and others. Title IX is not a new program; it was passed by Congress and signed by then-President Nixon in 1972 under a section of the Educational Amendments. Currently, Title IX provides colleges and universities with rules governing gender equality—ensuring that all students, male or female, have equal access to education. The federal law seems straight-forward and reads at just 37 concise words: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” But Title IX has been interpreted in a multitude of ways and covers more than just simply gender equality. In 2011 and again in 2014,

the Obama Administration, through the Office of Civil Rights-- the agency that enforces Title IX, published “Dear Colleague Letters,” which addressed the legal processes schools were expected to follow with sexual misconduct cases. The letters instituted action items like an appeals process for not-guilty findings-- a form of double-jeopardy-set a 60-day time limit on investigations processes and, most importantly, established the utilization of the preponderance of evidence standard. In Sept. 2017, Education Secretary Betsy DeVos announced possible changes to Obama-era protections for sexual abuse or misconduct victims on college campuses with the drawing back of two “Dear Colleague Letters.” A rescission of the letters may lead to permanent changes to the legal processes universities are compelled to follow, but the Education Secretary’s main focus is the shift of evidentiary standards-from the preponderance of evidence to one requiring clear and convincing evidence. Dear Colleague Letters

16 The Summation www.esrba.com Spring 2018

by Rachel Witbracht

are guidance letters “to give schools a clearer path to approaching and investigating sexual misconduct claims,” said Karen Rentz, Title IX Coordinator at the University of West Florida. They are not mandatory rules, but more of strongly suggested plans of action. “It was a fabulous thing because people that were victims of sexual assault and sexual misconduct on campus that weren’t getting attention, now got attention,” Rentz said. “It was a very positive aspect.” “The truth is that the system established by the prior administration has failed too many students. … [V]ictims of a lack of due process … have told me that the current approach does a disservice to everyone involved,” DeVos said, announcing her allegiance to “school choice.” The shift in evidentiary standard, from the preponderance of evidence-- a lower standard of evidence, to clear and convincing evidence-- one that is higher, will affect the reporting of campus sexual misconduct cases. The preponderance

standard requires that the evidence favor at least 51 percent of one side. “A lot of these cases go off credibility,” Rentz said. With the clear and convincing standard, though, there must be some concrete evidence of wrongdoing. Many sexual assault cases happen privately and without witnesses, which means the shift in the standard may make it harder to prove a crime even happened. Currently, only 20 percent of female student victims, ages 18-24, report sexual assault to law enforcement, according to the Rape, Abuse & Incest National Network (RAINN). And knowyourtitleix.com found that only between 2-10 percent of rapes are false reports. These harrowing statistics have left many questioning DeVos’ decision to bump up the standard of evidence a notch; she contends that “accused students [are] denied fair process.” One sentiment shared by survivors of sexual assault and advocates for victims is that this could make college campuses less safe. Sexual misconduct cases are already grossly underreported, and

Dana Bolger, Co-Founder of To Know Your IX, believes that the changes will only discourage reporting further. “No matter what policy changes they may or may not make,” Bolger says, “rape survivors everywhere are hearing one message loud and clear: that they matter less than the students that hurt them,” Bolger said. But there were some who welcomed the change. Before announcing the dismantling of the letters, DeVos met with three groups separately: victims of sexual assault, university officials and attorneys and, most controversial, falsely accused students. The falsely accused students and their advocates regard the Dear Colleague letters to be a huge overstep into the education system by the executive branch. Groups like The Foundation for Individual Rights in Education (FIRE), the National Coalition for Men, and other “men’s rights” activists denounced Obama’s

regulations ever since the passing of the letters in 2011. Joe Cohn, the policy director for FIRE, says that the lower standard of evidence, the preponderance standard, “exists within a parallel judicial system,” meaning universities do not have the same discovery and investigations processes that the judicial system provides. With the adoption of the preponderance of evidence standard, those accused face the same burden of proof in civil cases but do not retain the same fundamental due process rights—like the right to an attorney or to subpoena witnesses. With two strong arguments from both sides, DeVos has decided to take all comments into consideration by opening up a “notice and comment period” in March for remarks and opinions about the changes in the Title IX regulations. DeVos will hear from the same people she met with before announcing the changes (victims and their advocates, university officials

and attorneys and the falsely accused and their advocates). The comment period is sure to bring implications for sexual misconduct allegations on college campuses. After a 30-day span of taking all opinions into consideration, the Department of Education will make an official decision regarding the changes. Because of this, plaintiffs from three non-profit organizations filed a civil suit in the Northern District of California. The National Women’s Law Center heads the suit and are joined by Equal Rights Advocates, SurvJustice and the Victim Rights Law Center. Fatima Goss, the president of the National Women’s Law Center, says that the revocation of the letters leaves a “chilling effect” on college students and clearly discriminates against women. Women make up 90 percent of adult rape cases according to RAINN, which is why the suit highlights the implications and discrimination faced by

women with the changing of regulations. “In the lawsuit, we show how the Department based its decisions on sexist stereotypes and legal mistakes and put forth an illegal policy without following proper procedures. Our message is clear: when the government breaks the law and betrays student survivors, the civil rights community won’t let them get away with it,” the National Women’s Law Center published on their website. Rachel Witbracht is a Legal Studios Senior at the University of West Florida. She plans to attend law school this fall.

Spring 2018 www.esrba.com The Summation 17


he UWF Legal Studies Program is always looking for lawyers who are willing to supervise student interns. Here are the answers to the most frequently asked questions about Legal Studies Internships and Legal Studies Student Interns: 1. Do I have to pay them? If the placement is at a private, for-profit firm or corporation: Yes, you must pay them at least minimum wage. If the placement is a non-profit or government agency: No. The cost to the student to earn 3 credits in any internship is approximately $650.00. 2. What can I assume about these students? A. Minimum Cumulative GPA 3.0 B. Minimum Legal Studies GPA 3.0 C. Successful completion of these courses, at a minimum (with a minimum grade of “C”): - Legal Ethics - Evidence - Civil Procedure - Legal Research and Writing - It is likely that they will have completed many other courses, too. D. A student is only allowed to do an Internship for credit if they have the permission of the Legal Studies faculty. 3. How many hours per week will they be interning? If the student signs up for a 3-credit hour Internship, they are required to spend 200 clock hours at the placement site performing substantive legal tasks (approximately 20 hours per week). If the student signs up for 6-credits, approx. 40 hours per week. 4. What is expected of the Supervising Attorney during the Internship? A. Maintain status as a Member in Good Standing with the Florida Bar. B. Supervise the student consistent with R. Regulating Fla. Bar 4-5.3. The supervising attorney should have the desire and ability to teach as well as the time to carry out the supervisory responsibilities. C. Assign the student intern substantive tasks comparable with those assigned to a paralegal or legal assistant. Increasing levels of responsibility assigned to the student intern during the term is encouraged. Ensure that those assignments are satisfactorily completed. D. Provide the student intern with frequent constructive feed18 The Summation www.esrba.com Spring 2018

back regarding their performance. E. Notify the Internship Coordinator when the student intern is not fully meeting the responsibilities assigned. F. Meet with the Internship Coordinator and the Student Intern (and any other employees who work with the Student Intern) at the internship placement site to discuss the student intern’s performance. The Internship Coordinator will schedule this meeting shortly after the midterm evaluation is completed. G. Review and sign the student intern’s weekly time sheet. Students are required to record their “billable hours” and submit them weekly to the Internship Coordinator. H. Complete a mid-term evaluation and a final evaluation of the student intern’s performance (forms to be provided). Discussion of these evaluations with the student Intern provides greater guidance for improvement. 5. How do I sign up to get a Legal Studies Intern? A. Email the Internship Coordinator, Susan Harrell at: sharrell@uwf.edu She will send you a form to fill out and return. B. Based on the information you provide, when a student is available for placement with you, the Internship Coordinator will contact you, confirm that you are still interested in working with a Student Intern and ask who the supervising attorney will be. C. The student will schedule an interview appointment with the Supervising Attorney for the purpose of discussing mutual goals and expectations. The student will provide a current resume’, a “personal statement” and a proposed schedule of hours for the term. D. After the interview, if both parties wish to proceed, the UWF Affiliation Agreement will be sent to the Supervising Attorney for signature and return to the Internship Coordinator so that all UWF signatures can be obtained. E. The student intern may only participate in the Internship during the published dates of the term in which the student is registered for the Internship at UWF. Specifically, first day of classes through last day of classes for the specified term. Dr. Susan Harrell is an associate Professor in the Legal Studies Program at the University of West Florida

NewAlpha Members Phi Delta Thanks Clark Partington

The University of West Florida Pre-law Chapter of Phi Alpha Delta would like to express our gratitude to the law firm of Clark Partington for their continued financial support that allows UWF students to annually visit FSU Law School for free. This year, we were able to cover the travel and lodging costs for 15 students, and Clark Partington’s support enabled these students to attend. This contribution gave students a unique and valuable opportunity to tour a law school, sit in on classes, and speak with students and admissions representatives. Phi Alpha Delta is a professional law organization comprised of pre-law students, law students, legal educators, attorneys and judges fostering the exchange of ideas and promoting the core values of the legal profession. The UWF pre-law chapter hosts numerous academic events throughout the year, and continues to seek ways to connect with the legal community of Northwest Florida. For more information or to get involved with Phi Alpha Delta, please contact our faculty sponsor: Professor Charlie Penrod at cpenrod@uwf.edu

The Bottom Line

Medical Records Requests in the Computer Age by Caroline Peterson


very legal practice that involves personal injury or death will by necessity involve medicine; the more you know, the more value you add to the case. Analysis of medical records can help the attorney determine whether the case can or cannot be supported, enhance and demonstrate damages, identify the type of experts that will be needed or, ultimately, prove the case at mediation, arbitration or trial. This process will necessitate that you gather medical records from healthcare providers. Florida and Federal law provide a few different methods in which to obtain medical records, and this article will discuss traditional hard copy requests and “Hitech” electronic requests. First, what are traditional and Hitech medical record requests? A traditional request is one where you send a letter to the healthcare provider asking for hard copy i.e. paper copies of records according to the Florida Statues 395 and Florida Administrative Code Rule 64. Hitech stands for Health Information Technology for Economic and Clinical Health Act, which is part of the America Recovery and Reinvestment Act of 2009. This act contains incentives related to health care information technology in general and was specifically designed to accelerate the adoption of EHR/EMR (Electronic Health Records/Electronic Medical Records) systems among healthcare providers. Once the EHR systems are implemented

by the healthcare providers, the Hitech Act provides the patient with the right to obtain their Personal Health Information (PHI) in an electronic format a/k/a ePHI (electronic Personal Health Information). Second, why would you want to get records via a Hitech request vs. a traditional medical record request? A traditional medical record request is sent to healthcare providers i.e. doctors, hospitals, ambulatory surgery centers, pharmacies, etc. asking that they send you (the attorney or patient) a hardcopy/paper copy of the patient record. It can be extremely costly to reimburse the medical provider under a traditional request and the records can be very bulky. In fact, the high cost of medical records often impairs the investigation of possible medical malpractice, disability and personal injury claims. This puts a huge burden on the attorney who needs the records in order to assist the client with claims and the client themselves in getting good quality continuity of care. The Hitech Act was designed to help patients obtain their PHI so that they can receive better care and get their records quickly, in an emergency situation, by providing a portable format (ePHI) for records to be delivered to the patient or a designated 3rd party. Additionally, the Hitech Act also provides for a lower cost to the patient or their attorney. While the Hitech Act does not state an exact fee for providing the records, it does state that

20 The Summation www.esrba.com Spring 2018

it shall not be greater than the entity’s labor costs in responding to the request, which would be the cost of copying plus postage, see 42 U.S.C §17935(e). A traditional request can involve a retrieval/research fee, cost of supplies, per page fee, postage, delivery fee and sales tax, see FL §395.3025 and FL Administrative Code Rule 64B8-10.003. The cost savings can be enormous. If you order a hospital record, which consists of 3,000 pages, the cost (if you use the $1.00 per page method) would be around $3,000.00. If you use a Hitech Act request, the cost could be as low as between $6.50 to $28.50, (which is a standard industry fee that is being used by some 3rd party medical records providers). By using the Hitech request, you are not only saving your company and the client money, but you are reducing our carbon footprint--thereby helping our environment too! Another cost benefit of the Hitech Act is the fact that you do not have to scan the documents, which saves your staff time and the cost of paying someone to scan the documents. A Hitech request can be used by plaintiff’s firms, as well as defense firms with the plaintiff’s authorization making litigation less expensive for both sides. To be successful with Hitech requests, a particular process must be followed. The request must come from the patient; it must contain the patient’s name, address, contact information and date of birth; clearly state

dates of service and items requested; specifically request that the items be provided in electronic format only including where to deliver the information (email or physical address); and have the patient sign the request. If the records are going to be provided to a 3rd party i.e. attorney, make sure to include that information in the letter as well as a release form signed by the client allowing the provider to send the records to them electronically. Additionally, you can include a color copy of photo identification (for signature matches) as well as birth or death certificates and Power of Attorney, if applicable. As our society becomes more and more dependent on computers and other electronic devices in the provision of medical and legal services, we need to adapt our practices accordingly. Successful law firms will adopt methods that make the most of the electronic format, which in turn will benefit all parties in the form of lower cost and greater efficiency and that’s the Bottom Line.

Caroline Peterson is a senior paralegal at Levin PApantonio Law Firm and serves as the medical-legal paralegal for the Medical Negligence Department.

Did You Know?



enry David Thoreau once said, “This world is but a canvas to our imagination.” Personally, I could not agree more. Having a background in the arts, I love meeting other artist within the legal community. Sometimes, it’s the individuals you least expect that turn out to have the ability to turn a blank canvas into a work of art.

In an effort to make our local courthouses more welcoming and attractive, the Escambia Santa Rosa Bar Foundation recently established an “Art in the Courts Project” to review potential donations for their suitability. It was through this project that I learned that our current ESRBA Member, Paul Flounlacker, has the ability to turn those so called blank canvases into a piece of Art.

“I had a piece that was an example of this area’s nature and thought it would be an appropriate work for a courthouse.” ~ Paul Flounlacker. Being born and raised in Pensacola, Paul could honestly proclaim that he’s a true Pensacolian. He is one of five children. Paul has always enjoyed doodling; however, it was not until the summer of 2014 when he got serious and began taking painting lessons from Bill Harrison out of Point Clear, AL. If you are lucky, you may have come across one of Paul’s original pieces within the community. The second piece that Paul painted in Bill Harrison’s class juried into Pensacola’s Quayside Art Gallery First City Art Show on 2014. Then in 2015, another piece of Paul’s work was selected for the Pensacola Museum of Art’s Members Exhibition.

Over the years, Paul has had the wonderful opportunity to donate at least 10 pieces. According to Paul, his favorite style of art is “impressionism leaning toward the abstract”, and he has recently “developed an interest in nighttime cityscapes in the rain.”

Michele Schamberger is the current ESRBA Marketing and Member specialist Spring 2018 www.esrba.com The Summation 21

In The Community


On February 16 , the Escambia Santa Rosa Bar Association hosted its 2018 Candidate’s Forum featuring fellow ESRBA Members: Charles Beall, Jeremy Branning, and Joseph Passeretti. Each candidate had the opportunity to discuss and answer questions provided by guest.

Every First Tuesday of the Month Hosted by FindLaw and V. Paul’s located at 29 Palafox Place

The University of West Florida Mock Trial Team hosted the Seventh Annual UWF Argo Invitational on Jan. 13-14. The tournament, sponsored by the Stetson University College of Law, featured 28 teams this year, making it the largest Argo Invitational to date. Valerie Prevatte, Dr. Susan Harrell, Alan Bookman, Christine Cook, and Dr. Kimberly McCorkle

Dr. Kimberly McCorkle and Alan Bookman

The Young Lawyers’ Division and Bar Foundation would like to recognize the impressive amount of work and effort the students put into the annual Mock Trial Competition. Therefore, to reward the students’ hard work and encourage them to continue their interest in the law, at this year’s competition the YLD and Foundation presented a scholarship to the students receiving the Best Attorney and Best Witness awards. Each scholarship will be in the amount of $250, to be used at the winning student’s discretion. And, as it has in the past, the Bar Foundation will award $500 to the winning team, to help defray its costs of travel to the state competition.

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YLD President, Cecily Parker, presenting Gulf Breeze High School with this year’s $500 Scholarship award.



2018 Directory Updates Court Administration Page 33: Judge Jennie Kinsey’s JA: Rachael McKinley, email: Rachael.McKinley@flcourts1.gov Page 34: Hearing Officer John Albritton’s JA: Cary Carter. No longer Carter-Strebel Page 42: Judge David Green’s JA: Joanna Cosson, email: Joanna.Cosson@flcourts1.gov

ESRBA Members Aloi, Nicole Antoniette (Page 59) Public Defender’s Office 190 West Government Street Pensacola, FL 32502 PHONE: 850-595-4100 EMAIL: Nicole_aloi@pd1.fl.gov Beckish, Robert (Page 62) MSGOFLA 815 South Palafox Street Pensacola, FL 32502 PHONE: 850-434-6674 FAX: 850-434-9667 EMAIL: rbeckish@msgofla.us Condon, Thomas (Page 71) The Law Office of Thomas Condon, P.A. 21 East Garden Street, Suite 200 Pensacola, FL 32502 PHONE: 850-434-3571 FAX: 850-434-7366 EMAIL: cmc@westconlaw.com George, Katie (Page 80) Department of Children & Families 160 Government Center, Suite 601 Pensacola, FL 32502 PHONE: 850-595-8057 FAX: 850-946-7499 EMAIL: katie.george@myflfamilies.com Hamlin Jr., Paul J. (Page 85) Paul J. Hamlin, Jr., Esquire The Hamlin Law Firm, P.A. 307 West Chase Street Pensacola, Florida 32502 PHONE: 850-912-8530 EMAIL: phamlin@hamlinlawfirm.com

Langham, Pamela (Page 93) Office of General Counsel University of West Florida 11000 University Parkway Pensacola, FL 32514 PHONE: 474-9200 EMAIL: plangham@uwf.edu

Practice Pointers Seminar M.C. Blanchard Judicial Building Friday, April 6th Technology Seminar M.C. Blanchard Judicial Building Friday, April 13th April ESRBA Luncheon- The Role of Arbitration Presented by Michael Schofield Thursday, April 19th Legal Jeopardy Foundation Fundraiser Dinner Pensacola Yacht Club Thursday, May 1st Practice Pointers Seminar M.C. Blanchard Judicial Building Friday, June 1st

Mayes, Jonathan R. (Page 98) Law Office of Jonathan R. Mayes, PLLC 201 East Government Street, Suite 33 Pensacola, FL 32502 PHONE: 850-432-1599 FAX: 850-433-6222 EMAIL: john@attorneymayes.com Schurger, Eric D. (Page 113) Department of Children & Families 160 Government Center, Suite 601 Pensacola, FL 32502 PHONE: 850-595-8057 FAX: 850-946-7499 EMAIL: eric.schurger@myflfamilies.com Waddell, Amy Kicklighter (Page 123) Waddell & Waddell, P.A. 1108-A North 12th Avenue Pensacola, FL 32501 PHONE: 850-434-8500 FAX: 850-434-0971 EAMIL: amy@ourfamilyattorney.com Waddell, Jason A. (Page 123) Waddell & Waddell, P.A. 1108-A North 12th Avenue Pensacola, FL 32501 PHONE: 850-434-8500 FAX: 850-434-0971 EAMIL: jason@ourfamilyattorney.com

Is your information incorrect in the 2018 ESRBA Member Directory? If so, please contact the ESRBA office at Michele@ESRBA.com with the corrections you would like to be made to your account.

New Members Shannan D. de Jesus Law Office of Shannan D. de Jesus, P.A. 5511 Mill Race Circle Pace, FL 32571 Adam Royal Beggs & Lane 501 Commendencia Street Pensacola, FL 32502

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 tanner@ballingerpublishing. com. Fall 2017 www.esrba.com The Summation 23

Providing Quality Insurance Services For Over 25 Years 850-484-7011

Come see us at our new address located at 11 West Garden Street Pensacola FL 32502 www.mcmahonhadder.com

24 The Summation www.esrba.com Fall 2017

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