Res Gestae - April 2013

RES GESTAE

THE OFFICIAL PUBLICATION OF THE LEE COUNTY FLORIDA BAR ASSOCIATION

APRIL 2013

Justice Teaching

Investing in our future

BP Oil Spill Claims Nothing to Lose

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RES GESTAE | APRIL 2013

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Contents 6

Letter from the President

8

Letter from the Editor

by Nanci DuBois

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by Mary C. Evans, Esq.

Justice Teaching: Uniting the legal profession and Florida’s next generation

by Hon. John S. Carlin

13

Dean Milhizer’s Side Bar Electronic discovery: what you don’t know can hurt you

by Dean Eugene R. Milhizer

14

Moving Past the Nightmare

BP settlement claimants have nothing to lose

by Sara Fitzpatrick Comito

13 21

New Advertising Rules

22

Real Estate and The Legal New Normal

17

2013 Law Week Calendar

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Who Said That?

by Hon. John S. Carlin

The long journey of voice identification and analysis in the courts

by David B. Watts

by Henry Lee Paul

On the Bench From the Bar

Randall Spivey, Esq.

by Sara Fitzpatrick Comito

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26

The Dish

University Grill

by Sara Fitzpatrick Comito

30 34

Social Scene

44 45

Calendar of Events

4

We make every effort to ensure the accuracy of the information published, but cannot be held responsible for any consequences arising from omissions or errors. Opinions expressed by our writers and advertisers are not necessarily opinions shared by the LCBA, Res Gestae, or CONRIC Publishing.

COVER PHOTO: Connie Ramos-Williams

News and Happenings

RES GESTAE | APRIL 2013

CONTRIBUTING WRITERS Judge John S. Carlin Sara Fitzpatrick Comito Nanci DuBois Mary C. Evans, Esq. Charlene Laurent Henry Lee Paul Dean Eugene R. Milhizer Nikki Smith David B. Watts

ON THE COVER: Honorable John S. Carlin

Legal Briefs

100 Club Members

PUBLISHER Connie Ramos-Williams 239.690.9840 EDITOR-IN-CHIEF Anne Dalton, Esq. EXECUTIVE EDITOR Nanci DuBois 239.334.0047 ASSOCIATE EDITOR Sara Fitzpatrick Comito LAYOUT AND DESIGN Kat Godina ADVERTISING DIRECTOR Linda Fiore 239.690.9840

Res Gestae is published monthly by CONRIC Publishing in partnership with Lee County Bar Association. All editorial, advertising and photos may be submitted for consideration through email to: resgestae@leebar.org.

Hon. Jay B. Rosman

by Sara Fitzpatrick Comito

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staff box

BILLING INQUIRIES 239.334.0047

by Charlene Laurent and Nikki Smith

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239.334.0047 resgestae@leebar.org

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Copyright 2013. Lee County Bar Association, Inc. All Rights Reserved. No portion of the publication may be reproduced in part or in whole without prior written permission of the Lee County Bar Association. To inquire about such permission, please contact Nanci DuBois, Executive Director of the Lee County Bar Association at info@leebar.org.

Note from the President Lee County Bar Association ADMINISTRATIVE TEAM “Are you wearing that ugly coat to dinner?” After those words came out of my Mother’s mouth recently, I faced a choice…reply with something sarcastic, or remain respectful. Oh how I wanted to let loose with a real body slam of a oneliner. A comeback so smart I could do an obnoxious happy dance in celebration. But I did not! Oh no, Dear Reader, I chose the respectful route, and how could I not? You know those old codgers can’t help what comes out of their mouths. (Tee hee! Wait until she reads THAT!) As I’m chuckling to myself about calling my Mother an old codger, which she is not, I can’t help but think back to my childhood. My paternal grandfather was a coalminer who spoke very little English and who signed his name with an X. My maternal grandfather, on the other hand, worked for the government and held the highest security clearance a civilian could hold at the time. I can envision him smiling and laughing at the card table after he beat the pants off us at Shanghai again! I’m smiling – happy memories inside the head of a happy girl.

And now that I’m waxing historical, were you at the February general membership meeting? If you weren’t there, you missed the debut of a real gem, a tribute to the Lee County Bar Association in the form of an oral history on DVD. After we viewed part of the video, I asked if anyone knew what an outhouse was, and if they knew because they had seen one in a book, or because they had hands-on experience.

A few hands went up and some heads nodded in acknowledgement. I went on to ask if anyone else in the room was the grandchild of a coalminer. Just one nod of acknowledgement to that one.

The reason I was asking, and the reason I am bringing it up now, is to make you think back too. What is in your history? Have you heard any good stories from your parents? Did you write any of them down? Did you make a tape recording of them? (Young lawyers, a ‘tape’ is something we used back in the day before compact discs were invented.) I hope you will take a moment to ask your parents about their childhoods, or, if you are so blessed as to still have your grandparents alive, I hope you will ask them. Why? Two reasons: First, we should remember where we came from, and how far we’ve come, if for no other reason than to stay a little humble.

(Yeah, like humility is a problem among lawyers. Hah.) Second, I hope you get infected with a love of history.

I hope you view that fabulous video and I hope it inspires you to do something to preserve your own history and to become more involved with the Bar Association and its members who have so much to share. In other words – I’ll see you soon! In the meantime, I’m off to buy a new coat. |RG|

Mary C. Evans, Esq. mary@maryevanslawyer.com | (239) 226-1062

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RES GESTAE | APRIL 2013

EXECUTIVE DIRECTOR Nanci G. DuBois EXECUTIVE ASSISTANT Lisa Poulin LAWYER REFERRAL & PRO BONO COORDINATOR Ghaylene Reyes

EXECUTIVE COUNCIL PRESIDENT Mary C. Evans, Esq. VICE-PRESIDENT John D. Agnew, Esq. SECRETARY Anne Dalton, Esq. TREASURER Scott Atwood, Esq. MEMBER-AT-LARGE Kelly Fayer, Esq.

YOUNG LAWYERS DIVISION PRESIDENT John Miller, Esq.

COMMITTEES

HISTORY E. Bruce Strayhorn, Esq. & Jenna Persons, Esq. LAW RELATED EDUCATION Scott Atwood, Esq. LAW WEEK Hon. John S. Carlin LIBRARY Robert L. Donald, Esq. MOCK TRIAL Renee Binns, Esq. PAST PRESIDENT Karla Y. Campos-Andersen, Esq. PRO BONO Vanessa Cordero, Esq. and Katie Berkey, Esq. MEMBERSHIP Kelly Fayer, Esq. SOCIAL EVENTS Kelly Fayer, Esq. & Amanda Mitteer-Bartley, Esq. TECHNOLOGY Michael E. Chionopoulos, Esq.

PRACTICE SECTION CHAIRS

ALTERNATIVE DISPUTE RESOLUTION Anne Dalton, Esq. CRIMINAL LAW Keith Upson, Esq. REAL PROPERTY, PROBATE & TRUST LAW Kenneth Kemp, Esq. GENERAL CIVIL & BUSINESS LITIGATION J. Jeffrey Rice TORT LITIGATION Preston John (PJ) Scheiner, Esq. FAMILY LAW Rana Holz, Esq. & Jo Ellen Kane, Esq. LAND USE & GOVERNMENTAL LAW Russell Schropp, Esq.

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Letter from the Editor We have such an exciting line-up of events coming your way, I hardly know where to begin.

If your practice allows you time to pursue your artistic side, we’d love to have your work displayed in our very special art show, coming in July.

I’m coordinating the artists for this exciting opportunity graciously offered by the Sidney & Berne Davis Art Center. Send an e-mail to info@leebar. org with ART SHOW ENTRY in the subject line, won’t you? We will have the Grand opening during ArtWalk on July 5, and “our” LCBA Opening for our Thursday Social in July. We may even display some of our top entries in an upcoming issue of Res Gestae.

Coming up soon are some events we always look forward to bringing your way: Law Week (see Judge Carlin’s feature for details) features our “Law in the Mall” community outreach event, Law Day Blood Drive and Law Week Awards Luncheon. We do hope you will participate in our “Law in the Mall” community service event on Saturday, April 27th by contacting Gus Simmons, and in the Law Day Blood Drive on Wednesday, May 1. Yes, you can even make an appointment in advance to give blood! Henderson Franklin Starnes & Holt, PA adds their gift to those who donate: a little box of Norman Love Confections chocolates. In case you needed another reason.

I’m looking for some great new sponsors to join my “true blue” sponsors for the Law Week Awards Luncheon held at Royal Palm Yacht Club, May 3, and our Third Annual Voices for Kids Charity Golf Tournament held at Raptor Bay Golf Club, May 18 . Let’s do lunch and sign your firm or business up today, or simply download the form on our website calendar. Once you sign up to sponsor, please send me your logo in .jpg format so that we may include it in all our event promotions.

Our most recently updated information on upcoming events can be found online at www.leebar.org. Don’t miss out! Register & pay online to attend or sponsor an upcoming event. Be sure to add these events to YOUR calendar.

We’re always glad to see you!

If you have enough business in your legal practice, do not read this: “GET A FREE RUN TIL JUNE 1” in our Lawyer Referral Service!

Contact Ghaylene Reyes, our Lawyer Referral Service Coordinator, at LRS@leebar.org to take advantage of this special deal and “try it on to see if it fits” between now and June 1.

Nanci G. DuBois info@leebar.org | (239) 334-0047 ext. 102

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RES GESTAE | APRIL 2013

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Since its creation in 2006, I have served as a member of the Select Committee on Justice Teaching as the representative for the Twentieth Judicial Circuit. Justice Teaching was created by Justice R. Fred Lewis during his tenure as Chief Justice of the Florida Supreme Court. Justice Lewis was greatly concerned that high-stakes standardized testing had resulted in a lack of civic education about the fundamental rights guaranteed by the United States and Florida Constitutions.

Instead of sitting on his laurels, Justice Lewis took action and vowed to create an initiative by which an attorney or judge would volunteer with every public elementary, middle, and high school in Florida. While naysayers proclaimed that he would never succeed because thousands of attorneys and

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RES GESTAE | APRIL 2013

judges would not simply volunteer their free time to educate schoolchildren, Justice Lewis proved them wrong. More than 99% of Florida’s public schools have a Justice Teaching volunteer assigned, and in 2011 Justice Teaching expanded into private schools.

The wonder of Justice Teaching is that it constitutes a ready-made initiative with complete lesson plans available for attorneys to access online at www.justiceteaching.org. There are step-by-step instructions for volunteers so that hours of preparation before entering the classroom are neither required nor necessary. All that is needed is one hour per month of your free time and a desire to educate the next generation of Floridians about civic education and our constitutional rights.

Those who participate have stated that the students are not the only ones who benefit from Justice Teaching. Our volunteers describe Justice Teaching as an inspiring, fulfilling, and enriching experience. One volunteer, who visits “her” students on the way to work every day told Justice Lewis, “It is a joy to

teach the Constitution to these students and I am grateful for this opportunity to do so.”

Any attorney or judge who is hesitant to serve because of the thought of appearing in a room of inquisitive faces need not despair. Each Justice Teaching volunteer views a training session during which Justice Lewis himself presents multiple lesson plans, all of which are accessible on the Justice Teaching website. Thus, volunteers are able to see Justice Teaching operate in a real-world format before ever stepping into a classroom.

Further, there is a support network available to our volunteers, including Select Committee members like myself; Justice Lewis, who has made it a prerogative to visit a school once a month ever since his appointment to the Florida Supreme Court; and the Justice Teaching database coordinator, Michelle Ballard, who can suggest lesson plans or answer questions that you or your assigned school may have about Justice Teaching.

is of time the essence

when

10% Discount on Transcripts Ordered at Time of Deposition or Hearings / Trials

Although there are approximately four thousand Justice Teaching volunteers all around the State of Florida, volunteers are always needed and welcome as new schools open and private schools learn about the initiative. If you would like to make a difference in the lives of the children in our community, serving as a Justice Teaching volunteer is an important and worthwhile way to accomplish that goal. You will be joining the ranks of thousands of others who have derived pleasure and joy from working with and bringing civic education to the next generation of Floridians. I encourage you to visit the Justice Teaching website and read about Justice Lewis’ vision. You will undoubtedly find his passion for education to be infectious, as I have. If you elect to become a Justice Teaching volunteer, I guarantee that you will not regret your decision. |RG|

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Dean Milhizer’s Side Bar

electronic discovery What you don’t know can hurt you.

by Dean Eugene R. Milhizer Video of Ave Maria School of Law E-Discovery Panel of Experts available to Bar members for CLEs Electronic Discovery, or “E-Discovery,” has become important to the practice of law and the education of our future lawyers. Aside from the increased risk exposure to malpractice, with upwards of 90% of business information stored electronically, the need for training in the area of E-discovery is no longer a luxury – it is becoming a necessity.

Recently, the Ave Maria Law Review and the Ave Maria Moot Court Board presented what we believe to be the first panel in Southwest Florida on “Electronic Discovery : Reflections From the Bench” at our Vineyards campus in Naples. The panelists were the Honorable John M. Facciola, United States Magistrate Judge for the United States District Court for the District of Columbia, and the Honorable Andrew J. Peck, United States Magistrate Judge for the United States District Court for the Southern District of New York. The day-long Panel was moderated by Ave Maria School of Law Adjunct Professor Steven Teppler, a nationally recognized expert on electronic discovery. Besides students, faculty and local members of the bar, attendees included members of the ABA Electronic Discovery and Digital Evidence Committee.

The panel considered a wide array of topics including how social media, e-mails, texts, sms messages and tweets are entered into evidence; the impact on criminal procedure discovery of cell phones, mobile devices, and GPS tracking; and many other current and emerging electronic discovery issues.

Professor Teppler has been a great addition to our Law School.

Steve lectures nationwide on evolving theories of computergenerated information and evidence in an electronic data universe. He is the founder and CEO of a content authentication provider, an active member of ABA committees, and leader in the area of digital evidence. He is an active author, and his publications include contributions to the book Foundations of Digital Evidence (American Bar Association, July 2008) and

co-authorship of Digital Evidence Lifecycle Management: A Guide for Attorneys, Enterprise, and Technologists Professor Teppler has practiced law since 1981 and advises private and public sector clients about risk, liability, and compliance issues unique to information governance. As an adjunct professor at Ave Maria Law School, Steve developed and teaches our Electronic Discovery offerings. According to Professor Teppler, “Ave Maria School of Law is one of only a handful of law schools in the country that offers training in this emerging area of the law. I was pleased to be a part of this distinguished panel and to explore this important subject.”

We welcome area members of the bench and bar to learn more about E-Discovery. A video of the E-Discovery panel at Ave Maria School of Law is available to Lee Count Bar Association members by calling 239-687-5405. CLEs may be applicable and we invite you to investigate that option. |RG|

Ave Maria School of Law President and Dean, Eugene R. Milhizer, has presented lectures, speeches, and seminars at law schools and other venues across the country, and his legal scholarship has been published in many prestigious law journals. He can be reached at ermilhizer@avemarialaw.edu, or at 239-687-5305. www.avemarialaw.edu.

RES GESTAE | APRIL 2013

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Moving Past the NIGHTMARE BP settlement claimants have nothing to lose

by Sara Fitzpatrick Comito This month we mark a grim anniversary. Three years ago on the evening of April 20, the BP deepwater well known as Macondo exploded, killing 11 workers. Transocean’s Deepwater Horizon subsequently sank, hemorrhaging a catastrophic five million barrels of oil into the Gulf of Mexico. There are a lot of superlatives related to the spill, which maintains the ignominious distinction as the nation’s worst environmental disaster. As BP consequently faces the largest civil fine in history, former chief Tony Hayward has ostensibly gotten his “life back.” Thousands of ordinary citizens would like to do the same. Fortunately, local attorneys are on hand to help them file a claim in advance of the April 2014 deadline for the Deepwater Horizon Economic Damages Settlement.

Get evaluated According to the Deepwater Horizon Claims Center, as of early March, BP had paid out about 1.6 billion dollars under this program alone, and estimates the total cost will reach approx. $8.5 billion. However, many individuals and businesses have yet to file a claim. What’s the hold-up? “My real simple advice for anyone is to get them evaluated,” said Hank Didier, Jr., whose background is in complex litigation, consumer issues, business law and environmental land use. He is a founding partner of Economic Recovery Group, headquartered in Winter Park.

The firm, which has offices in Fort Myers, Cape Coral and Naples, was formed solely to work in referral relationships with business and consumer litigation firms across Florida to help their clients process BP oil spill claims. “The program is so broad in scope their clients won’t know that they qualify unless they get evaluated.”

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Speaking of scope, Sawyer Smith has handled approximately 1,100 such claims, and said the work of The Wilbur Smith Law Firm on behalf of its clients has “already dispersed over five million dollars into the local economy.” He anticipates doing much more, too, considering many companies haven’t taken the crucial first step. A common metaphor among attorneys doing this work is the pebble that gets tossed into the pond, and the ripples grow to reach every square inch of that pond.

It’s not only commercial fishing that takes a hit, for instance, although Smith has had his share of clients in that sector.

“I spent two months in Everglades City,” he said. “Here are guys that get up at 4 a.m. and fish until 7 at night. If you’re a crewman, you’re making $100 a day. I thought it was important that someone represent that industry.” He said a little bit of money goes a long way to those folks, who are suffering the worst stone crab season in a decade or more – a claim can mean a captain can buy his boat outright, for instance, or new nets or a new motor, maybe give someone a job. Smith characterizes people in the commercial fishing industry this way: “They’re hardcore, and they’re nice and they’re appreciative.”

Remove all doubt Frank Aloia of Aloia, Roland & Lubbel, LLP also employs the pebble and pond metaphor, and pointed out one client that is not involved in tourism, fishing or the restaurant business.

Instead, this is a small paving contractor in Naples who will likely get a nice settlement from the program, to the tune of $225,000. Small business owners typically will use the money to reinvest into the business. “He’s already told me he’s got his eye on a new paving machine, which is going to make him

more money.” Submitting a claim is a win-win, regardless of the outcome, according to Aloia. Even if clients don’t qualify, “they have received a professional opinion that removed all doubt.”

Fail to submit a claim by the deadline, and “you’ll be left with that pang of wonder: ‘Did I leave money on the table?’”

Aloia admits that, as a business owner himself, he understands the skepticism attached to the notion of getting something for nothing. However, this settlement is a way for the oil giant to clear its inventory of claims in the most costeffective manner possible. “This is something BP negotiated, with very high-powered attorneys working in their interest.”

Keep in mind how each sector of our economy ties in to the other. Imagine a couple from the Midwest who forgoes their planned vacation to Fort Myers Beach because they somehow missed the PR messaging that The only oil on our beaches is suntan oil. “They don’t come to Southwest Florida and fall in love with it, with the warm weather and the beaches,” Aloia said. “So they don’t buy the house that needs the bedroom remodeled, and they don’t need the plumber,” and so on down the line. He freely calls it an “obscure fact pattern,” and, as a business lawyer, also identifies working on a contingency basis as an unusual methodology for him. However, he feels strongly enough that anyone who could have a claim should submit it that he’s taking on the extra workload, while commenting, understandably, “I feel like I could use a clone.”

Randall Spivey of The Spivey Law Firm has also dedicated a portion of his workload to the BP settlement. “Claims are ranging from tens of thousands of dollars to hundreds of thousands of dollars,” he said. “The money is there for Florida businesses, with little effort in compiling documents and no cost based on the contingency fee process for them to utilize this opportunity.”

The time is now Although the deadline is a year away, Spivey emphasizes that time is of the essence. “The time to act is now so that the forensic accounting work can be completed and documents compiled for a successful claim,” he explained. He also identified an opportunity for attorneys to work together. “We pay the maximum referral fee of 25% to legal counsel, and welcome the opportunity to partner with them to file for their business clients’ and friends’ BP Deepwater Horizon Claims.”

All the attorneys Res Gestae interviewed for this story expressed some common themes: • If you think you’re not eligible, think again. Our economy is interconnected. When one sector takes a hit, we all do, and the ripple effect can take place over several years.

• It’s not a difficult process to file a claim, but you are more likely to be successful with the help of an attorney.

• There’s no cost for a claim to be evaluated and submitted.

Clients only pay attorneys when their claim comes through.

• Business owners tend to reinvest the claim money back into the business, whether in assets or staffing.

• The claims process is an opportunity to develop and strengthen networking referral opportunities with each other.

• Claims money will help infuse the economy at large, so locals can begin spending more money close to home.

Let’s not forget the damage that has been done. As Sawyer Smith put it, “BP did this horrible thing and it’s not just that they devastated an eco-system and hurt a commercial fishing industry. The effects go everywhere.” Working together to get an economy back on its feet seems a worthwhile goal. If BP’s Claims Administrator Office is going to need its own blow-out preventer due to the sheer volume of its workload, then maybe that’s a type of poetic justice. In the meantime, let’s make sure anyone who could file a claim by the deadline understands the process and what’s at stake. |RG| RES GESTAE | APRIL 2013

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Naples, Florida (239) 513-1122 Fort Myers (239) 482-0019

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2013 LAW WEEK CALENDAR OF EVENTS

by Judge John S. Carlin Chairperson, Law Week

Law Week will be celebrated in Lee County from April 27, 2013 through May 3, 2013. This year’s events include the following activities: SATURDAY, APRIL 27 - LAW IN THE MALL: Law in the Mall will be at the Edison Mall on Saturday, April 27, 2013 from 10 a.m. to 2 p.m. This event is being coordinated

by Attorney Gus Simmons. Contact Gus at (239) 204.9376 or gus@itsmylegalright.com

WEDNESDAY, May 1 - LAW WEEK BLOOD DRIVE: Attorney Luis Rivera (344-1323, luis.rivera@henlaw.com) is coordinating a Law Week Blood Drive. The Blood Mobile will be parked at the SE corner of Martin Luther King Blvd. and Monroe from 8 a.m. to 3 p.m.

THURSDAY, May 2 - JUDICIAL APPRECIATION RECEPTION: The Lee County Association of Women Lawyers President, Attorney Kelly Fayer is coordinating a Judicial Appreciation Reception set for Thursday, May 2 from 5:00 p.m. to 7:00 p.m. at Art of the Olympians. This event will honor the Judiciary of the Twentieth Judicial Circuit, Second District Court of Appeal and the Middle District of Florida.

Contact Kelly at (239) 415-3434.

FRIDAY, MAY 3 – SECOND DISTRICT COURT OF APPEAL ORAL ARGUMENTS: Second DCA Judge Darryl Casanueva has scheduled oral arguments at the Lee County Justice Center Tower, 2122 Dr. Martin Luther King Blvd., Fort Myers, Florida, 7th Floor, Courtroom 7A, from 8:30 to 11:30 a.m. Local high school students have been invited to attend this court session and speak with the judges in a question and answer session.

FRIDAY, MAY 3 - LAW WEEK AWARDS LUNCHEON: The Twentieth Annual Law Week Awards Luncheon will be held on May 3 at 11:30 a.m. at the Royal Palm Yacht Club. The luncheon will honor Law Enforcement Officers of the Year for the City of Fort Myers, City of Cape Coral, City of Sanibel and the Lee County Sheriff ’s Department. Also, the Dr. James A. Adams Lee County Teacher of the Year for Law-Related Education will be awarded to an outstanding teacher, and the prestigious Liberty Bell Award will be presented to a very deserving member of our community.

MAY 17 JUDICIAL ASSISTANTS FRIDAY, APPRECIATION: The Lee County Alliance of Legal Professionals presents a luncheon at Royal Palm Yacht Club on May 17 @ 11:30 a.m., honoring our dedicated Judicial Assistants (contact: Barbara Cavallaro @ 337-7337).

I would like to personally thank all of the attorneys who are volunteering their time to ensure another successful Law Week in Lee County. If there are any activities that you would like to participate in, please contact any of the committee members for assistance. |RG|

RES GESTAE | APRIL 2013

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WHO SAID THAT? The Long Journey of Voice Identification and Analysis in the Courts

By David B. Watts, CLI, CFE, FCI

Paul Gordon Cary was charged with murdering a young woman by stabbing her multiple times with a large knife in the kitchen of her home in Plainfield, New Jersey. The year was 1966 and I was a young detective in the Union County Prosecutor’s Office assigned to help Assistant Prosecutor Michael Diamond with trial preparation of the case. Of critical importance was identifying the adult male who called the police dispatcher reporting the victim injured and needing help. Given the timeline, only the killer or another adult male at the crime scene could have made that call. Other trace evidence also pointed to Cary, but proving he made that phone call would go a long way towards making the prosecution’s case.

A new science had been developing since the 1940s at Bell Laboratories, Murray Hill, NJ using spectrographic analysis of voice and speech patterns that supposedly could match a person’s voice recording to a recorded exemplar. It was called Voiceprint Identification and, if accepted by the New Jersey Court, would bring further evidence to bear against our defendant. This new science had not been heard by New Jersey Courts, so a Frye hearing was ordered by Judge Barger to determine if our expert witness would be allowed to testify in front of the jury.

Mike Diamond and I met with Lawrence Kersta, our expert witness, at his laboratory in Somerville, NJ. Mr. Kersta, an electronics engineer, physicist and former employee of Bell Labs, demonstrated his voiceprint machine. It was amazing.

We were enthusiastic about our chances, but Kersta knew it would be an uphill battle because Dr. Peter Ladefoged had been engaged by the defense.

Dr. Ladefoged, an associate professor of phonetics, University of California, Los Angeles, had testified persuasively against the

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scientific reliability of voiceprints in other cases. In fact, these two had met in the courtroom before, so the battle lines were drawn. Kersta’s voiceprint identification innovation had gained some support in judicial tribunals and was accepted when he qualified as an expert in spectrographic speech analysis in a White Plains, NY case. He gave expert testimony in a U.S. Air Force Court Martial, as well.

Nevertheless, Dr. Ladefoged testified in the Cary case that positive voice identification was not yet scientifically accepted nor adequately tested at that time. Without going into the minutiae of the Court’s decision, Judge Barger ruled that Mr. Kersta’s testimony would not be admissible based upon the failure of the prosecution to show “general scientific acceptance of the process...at this time.” The judge admitted that he was impressed with Mr. Kersta and voiceprint analysis and believed that in the future it would be scientifically accepted; but he was not ready to break new ground. Cary was convicted on other evidence, and voiceprint would have its day...but not that day.

Over time, Mr. Kersta and voiceprint analysis were vindicated and most states (including Florida) now accept its scientific value, in various measure. Even Dr. Ladefoged softened his resistance as time went by and admitted voiceprint has its place, “...though limited,” in the courts. For years, however, the two expert combatants went on to joust in other courtrooms around the country.

Lawrence Kersta’s contribution to the judicial system is immeasurable. His testimony convicted some and exonerated others. Voice analysis became accepted science around the world, even in the venerable halls of our own F.B.I. Today it is applied in terrorist identification and anytime the question of “Who said that?” comes up. Mr. Kersta went on to form

the International Association of Voice Identification and the Miami resident was a respected scientific innovator up until his death, at the age of 86 years in 1994. That same year Michael K. Diamond was appointed Judge of the New Jersey Superior Court after a distinguished career in private practice. He has since retired and is affiliated with the Mandelbaum Salsburg Law Firm in West Orange, NJ. Dr. Ladefoged died suddenly on January 24, 2006, at the age of 80, in London while changing flights on his way home from field work in India.

For me, the Cary case was an awakening. It was a privilege to have been there at the beginning of voice identification’s long journey towards scientific acceptance in the courts. This is a perfect example of the persistent advancement of science in conjunction with the evolution of our judicial system. In time, the courts do catch up to the science...but with due caution.

The Cary case was my first experience with expert witnesses.

Since then I have located and qualified expert witnesses, as well as refuted their anticipated testimony by pointing out their own conflicting past deposition and trial testimony for my attorney clients. What is most fascinating about the battle of the experts is watching two brilliant, educated and dedicated scientists, faced with the same set of facts, arrive at diametrically opposing opinions. It is truly an intellectual duel worth watching! |RG| David B. Watts is a licensed private investigator in both Florida and New Jersey. For over thirty years he has conducted all types of investigations for law firms, businesses and individuals.

Watts is a Certified Legal Investigator, Certified Fraud Examiner and Florida Certified Investigator. He and Linda, his wife of 50 years, live in both Califon, NJ and Sanibel, Fl. He can be reached via email: Islandinv@aol.com or visit his website: www.alliedbizsolutions.com.

RES GESTAE | APRIL 2013

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~ ADVERTISEMENT ~

by Sawyer C. Smith The importance of hiring the right attorney to assist you in submitting a claim for compensation from the Deepwater Horizon Claims Center cannot be overstated. The framework put in place by the BP Oil Spill Settlement is riddled with traps for the unwary that can delay or even prevent a business from being compensated altogether. Working with a CPA to assess your eligibility and potential compensation is a necessary, but not sufficient, measure to ensure that you are adequately protecting your legal rights.

At the outset, you should note that bringing a BP claim is, in fact, asserting a legal claim for compensation.

The business economic loss framework was put in place as a result of the resolution of a massive class action lawsuit. Having a lawyer and a qualified CPA team will ensure that all facets of your claim are adequately handled. For example, you will benefit from the assistance of a lawyer in determining whether you claim should be submitted as a regular business, a start-up business, or a failed business. Furthermore, should your claim be improperly denied, or should requests for additional information be issued by the Claims Facility, having an attorney who is qualified to interpret and challenge such an action will inure to your benefit.

Now, more than ever, it is imperative that you have knowledgeable legal counsel to assist from start to finish on your claim. Contrary to the reassuring words of its television spokespeople, BP’s actions clearly indicate it has no intention of quickly and fairly compensating a business for its losses pursuant to the Settlement Plan. BP just recently attempted to distort the agreed upon method of calculating a claimant’s losses into a fundamentally illogical morass. Although that effort was rejected by the judge overseeing the process, BP is now actively attempting to avoid paying eligible claims by all means at its disposal. Its methods include, inter alia, instituting appeals where their team attorneys file lengthy briefs asserting every possible grounds under the sun to avoid paying businesses that unequivocally are eligible to payment under the terms of the very Settlement BP voluntarily agreed to. BP has even gone as far in its efforts to avoid responsibility as to file an injunction to prevent the Claims Administrator from paying eligible claims. Indeed, BP is now actively denigrating legitimate claims that are eligible for payment under the Settlement Agreement as “fictitious” losses. To combat this corporate intransigence you need the assistance of skilled legal counsel and an accounting team.

The Deepwater Horizon Settlement is not a push-button process whereby an accountant re-works a business’s books and uploads supporting documentation to an online portal. The process, start to finish, requires a skilled understanding of the settlement plan, the interpretations of the claims administrator, and the ongoing litigation – and, ultimately, how to tie it all together. In order to combat BP and preserve a claimant’s rights, a business needs a team led by aggressive, knowledgeable and responsive attorneys.

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RES GESTAE | APRIL 2013

portions of a lawyer website and social media intended to seek

w e N tising r e v d A

Rules

1 2013 y a M e v i t c e f f E aul

By Henry Lee P

legal employment. There remains a differentiation as to which forms of communication are subject to advance submission and approval by The Florida Bar (such as media) and those which are exempt (websites and social media). See new Rule 4-7.20. New Rule 4-7.19(d) does allow for an advisory opinion on a specific page or provision in a website, but precludes such review for an entire website.

Two of the most significant changes include the authorization for the use of testimonials and reference to past results, both of which may now be included in advertisements, provided they are “objectively verifiable.” Lawyers will now be allowed to characterize “skills, experience, reputation or record” if such characterization is “objectively verifiable.” Use of the term “the best” is not permissible under this rule; however, descriptions such as “aggressive, intelligent, creative, honest or trustworthy,” are permissible. See Rule 4-7.13.

New Rule 4-7.15(a) permits advertising dramatizations provided that they have appropriate disclaimers and do not appeal to the “emotions” of a prospective client. Section (c) of the same rule now permits use of the voice or image of a celebrity to the limited extent that it is a “local announcer, disc jockey or radio personality who regularly records advertisements,”

At long last, the Florida Supreme Court has approved new less-restrictive advertising rules to entirely replace the existing rule. The 53-page opinion was published on January 31, 2013 in case number SC11-1327. The new rules are numbered 4-7.11 through 4-7.23 and are effective May 1, 2013. The new rules will replace the current rules, numbered 4-7.1 through 4-7.10.

This amendment culminates a process the Court began in 2007 when it directed The Florida Bar to study lawyer advertising and make recommendations. The Supreme Court adopted the proposed changes submitted by The Florida Bar with only minor changes. The Bar noted in the petition that “The proposals are designed to make the advertising rules more

provided that the local celebrity does not provide a testimonial.

Justice Pariente and Justice Canady filed dissenting opinions and opined that the new rules remain too restrictive.

In particular, both dissenting opinions took issue with the regulation of websites. One thing is for certain, there remains much ambiguity in the new rules and these amendments will not be the final word in relation to lawyer advertising in Florida.

You can expect a continuation of federal litigation challenging these new advertising rules as an impermissible limitation on the right to freedom of speech. There has been no amendment to the Rules of Professional Conduct that have received more extensive study and comment than these new advertising rules. |RG|

cohesive, easier for the lawyers who advertise to understand, and less cumbersome for the Bar to apply and enforce.” The old rules have been widely criticized as cumbersome and too restrictive.

There are many notable changes that will require thorough review by all practitioners. The new rules apply to all forms of communications seeking legal employment. This includes all

Henry Lee Paul is former Bar Counsel, having served in the Tampa Branch of The Florida Bar from 2005 until January 2012, and is now available for consultation and representation on advertising and all other matters involving lawyer regulation.

RES GESTAE | APRIL 2013

21

Real Estate and the Legal New Normal

by Charlene Laurent and Nikki Smith The practice of law is changing. It’s only natural a law

An outsourced attorney, paralegal, or researcher has her own

firm’s relationship with its physical premises should change,

office. The firm doesn’t have to support such employees with

too. Consider the “old normal:” Partners and associates had

occupancy-related expense. Even local attorneys, working

their own offices. Staff members were located in open space

fewer hours, or from home, or utilizing virtual offices may

between the two. Substantial real estate was given over to

not need full time office space, meaning offices can be shared.

the law library, file storage, mail and support activities, an

With furniture and storage solutions that secure belongings

employee lounge, reception and conference rooms. In the “new

and confidential material, firms can leverage empty offices for

normal,” two words apply: flexibility and technology. Firms

“hoteling” and team rooms while attorneys are away from their

want fewer partners and are looking to save additional dollars

desks.

by outsourcing work. Individual attorneys are often seeking a

Clients are often ahead of lawyers in implementing new

quality of life that does not require 1,800 billable hours annually.

technologies. They have increasing access to legal information,

Real estate-related costs are a law firm’s highest expense after

much of it readily available on the Internet. In the legal world,

salaries. It comes as no surprise, then, that firms continue to

also, technology is the “great leveler.” It allows innovative solo

look to their workplaces for increased efficiency and savings. No

and small-firm practitioners to compete with larger firms. This

longer do firms require expensive office space to be “wasted” on

has spurred any number of individuals to depart larger firms

a legal library. Technology provides a less expensive solution.

and create their own practices and work more flexibly. Some of these include the virtual law practice, which functions almost entirely online through a secure portal that is readily accessible to both client and attorney.

Clients are demanding lower legal costs, and smart firms are responding with creative solutions. Travel expenses for depositions and other matters can be eliminated or greatly reduced through the use of video conferencing, for example.

Where geography is less of a factor, such as the distance between Naples and Fort Myers, the firm may not have to maintain a formal office in both locations.

Keep in mind the shortcomings and advantages of the specific options. Working at home sacrifices professionalism.

By employing a “virtual office plan,” the attorney can have his

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phone answered professionally with the caller never knowing he is not “on premises.” When something must be dropped off or picked up, the “virtual receptionist” is available at the front desk. And when the requirement is to meet in person, a by-thehour day office or conference room is available. Using this type of plan, even the three or four attorneys making up a small firm can each operate from home.

legal and proFessional MalpraCTiCe

With sensitive legal malpractice claims and grievance matters, we are the “lawyer’s lawyer.”

For the attorney who requires a physical office and office amenities, one can combine a single office with shared common services such as receptionist, conference areas and office equipment. Shared facilities and services offer a much more economical option compared to traditional office space.

Today’s “executive business centers” are designed to provide basic needs from electric, cooling and heating, and janitorial services to internet, phone systems, all on an a-la-carte basis to meet any budget.

Creativity, understanding, and flexibility, supported by technology, is the name of the game. |RG|

Charlene Laurent (L) and Nikki Smith (R) are the managers of the Premier Executive Centers of Naples and Fort Myers, respectively, and may be reached at 239-591-6600

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RES GESTAE | APRIL 2013

23

On the Bench The Hon. Jay B. Rosman Having been elected to a second term, Chief Judge Jay Rosman sees three significant challenges ahead. First is funding. “My mantra for the last year or so has been A strong judiciary is essential for a strong economy.” Tied into the first challenge is the second: the continued high volume of foreclosure cases. “We can be part of the solution to make sure cases are resolved efficiently, but not sacrifice anyone’s due process,” said the judge.

Now that the rocket docket is a thing of the past, the circuit is resolving approximately 1,100 cases every month. Moreover, the court plays a role in economic stability in general, providing for a safe community and business-friendly environment. The Florida Supreme Court has certified the need for more judges. Even with the caseload, the system has not received additional judgeships in seven years, nor have judges seen a salary increase in that time.

The third challenge is technology. “We’re going to be paperless, which will save our community millions of dollars,” he said. With 67 counties in the state and five in our circuit alone, the need for uniformity is clear.

In addition to communicating the circuit’s needs for the future by meeting with legislators, he’s busy performing the other duties of chief judge while maintaining a full probate docket, which he feels is important in terms of contribution and leadership.

Domestic violence issues is a passion, stemming from an early career experience as county judge 27 years ago. With her mouth wired shut, a woman asked the judge to mitigate her husband’s sentence for the assault that led to her broken jaw. He denied the motion, but began a quest to understand the syndrome. He has since written two law review articles and his master’s thesis on domestic violence, formed a task force, and received a Governor’s Peace at Home Award.

Chief Judge Rosman is working on his dissertation for a doctorate in judicial studies. He has three children with his wife Cathy, a partner at Roetzel & Andress in Naples. He may someday go back to teaching, which he did for many years. |RG|

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From the Bar Randall Spivey, Esq. “What I do for people changes their lives, and I want everyone I represent to be a life-long friend,” Randall Spivey said. If it seems he takes the practice of law very personally, there’s a reason for it: his mother. “She taught me everything I needed to know to succeed in the courtroom, yet she didn’t know the first thing about law.”

Sadly, she passed away in November, but Spivey considers his work a reflection of his mom’s commitment to standing up for what is right.

Spivey has practiced exclusively in the area of plaintiff personal injury his entire career. And with the clients at Spivey Law Firm, where he works alongside his wife, attorney Tricia Spivey, it is personal too. After cases have been resolved, he often gets photographs in the mail to prove it. “The photos include updates on a little girl who lost her dad, but now has money for a house and education; to a client buying a new work truck, trailer and all of the equipment he needs to start his own business; to a school bus driver who purchased a modest piece of land and put her first house on it.”

Such displays of gratitude more than make up for the numerous challenges of the practice, according to Spivey. “It takes an incredible amount of work to bring a case to a successful resolution,” he acknowledged. “And the trial itself is a tremendous endurance challenge, often lasting five days or more, with constant worry about witnesses and the presentation of evidence.”

Spivey said he focuses personal attention on every case he handles. That way he can attend to the important things, like a little girl who lost her dad in a motorcycle accident. “The case settled the night before the trial was to begin. Her mom brought her in to thank me. She was only two. I looked her in the eyes knowing that my hard work resulted in her having money to live on, a college education, and a house when she is older. Now I am her Uncle Randy.”

When he’s not at work, Spivey enjoys off-shore fishing with his son and going to his daughter’s dance recitals. The family also likes playing tennis as a foursome. |RG|

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2231 First Street, Fort Myers, FL 33901 • 888-408-2380 • 239-334-1411 • www.FMCR-NCR.com RES GESTAE | APRIL 2013

25

The Dish

University Grill does a big business in lunch. In fact, the parking lot was near to overflowing when I met my party to celebrate a certain magazine publisher’s birthday. We had a reservation, given the large size of our group. But even with the rush, only one or two small parties seemed to be waiting for a table, and never for long. One wonders if the wait staff get together to do timed sprints before work. If I had taken a photo of any one of them, it would have come out as a blur.

The restaurant has been around a long time, its location on the corner of Summerlin and Cypress Lake Boulevard is centrally accessible between McGregor and Rt. 41, and the quality of food is predictable – in a good way. Along with the speedy service, it’s the perfect combination when you want to escape the office for a bite, be back promptly, and yet feel fulfilled.

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The Dish The crab bisque proved a Conric staff favorite. It’s everything you want in a bisque: a velvety butter quality, unapologetic depth of flavor and that little finishing liquor, be it cognac or sherry, that provides the condicio sine qua non. Somehow it isn’t too heavy, either. I ordered a cup to go with my expertly appointed caesar salad – with anchovies, thank you, Speedy Server, for inquiring – but I could have easily polished off a lot more. Whether I should or not is an argument that will remain for the armchair cardiologists in our midst. I honestly don’t care. It turns out, too, that bisque isn’t just for soup anymore.

One among our ranks ‘fessed up to ordering it to go for a quick pasta dressing at home.

If I glossed over the salad, allow me to rectify things. A caesar is one of those classic things that on account of its sheer simplicity is so often done poorly. In this case, no element was out of balance, from the crisp hearts of romaine cut to actual bite size to the fresh, crunchy croutons to that crucial ratio of lemon to garlic, cheese and fish in the dressing.

And that was lunch, along with fresh-brewed iced tea, which was in endless supply to us at our table in a well lit atrium-style room overlooking a little pond adorned by a fountain. I was satisfied, and I was on my way to my next meeting. Some of

the items my colleagues ordered included a Waldorf salad over fresh greens, sauteed tilapia with mango salsa and rice pilaf, a crunchy fried grouper sandwich and a beautiful salad topped with chicken tenderloins. From the looks of things, someone in the kitchen knows his or her way around a deep fryer (another simple technique that in the wrong hands often goes awry).

The lunch and dinner menus contain many of the same casual bistro style entrees, burgers, salads and appetizers. Among them are the caprese salad, sesame-crusted tuna and the University salad, with mixed baby greens, tomatoes, artichoke hearts, red onion, kalamata olives, roasted red peppers, walnuts and gorgonzola cheese with balsamic vinaigrette. Exclusive to the dinner menu, though, are such items as escargot champignon, firecracker shrimp and baked brie in puff pastry. There’s a nice selection of beers, wines and classic cocktails like martinis.

One thing you won’t find at dinner, however, is the spuckie of the day. The lunch menu explains the term as yet another name for a submarine sandwich, supposedly Boston-based. I was a bit skeptical, having grown up near there. Some research determined it’s a very neighborhood-specific colloquialism.

Much like a Boston accent, you can’t have just one – which is also very much like a cup of good crab bisque. |RG|

University Grill

7790 Cypress Lake Drive Fort Myers, FL 33907 (239) 437 – 4377 www.prawnbroker.com Lunch Monday - Friday 11 a.m. to 2:30 p.m.

Dinner Sunday 4 – 9 p.m.

Monday – Saturday 4 - 10 pm.

Happy Hour 7 Days 4 – 7 p.m., 4 – 10 Wednesdays Reservations Accepted for dinner and large lunch parties

Sara Fitzpatrick Comito is a freelance writer and associate editor of Res Gestae magazine, and a freelance writer for the Naples Daily News. For suggestions or comments on this regular feature, please contact Sara at Sara@ConricHoldings.com.

RES GESTAE | APRIL 2013

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Social Scene

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John Costello and Lesley Burkert

Robert DeSantis and Cynthia Duff

Angeli Chin, Linda Fiore and Jo Ellen Kane with Nanci DuBois

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RES GESTAE | APRIL

2013

Gail Lamarche, Shannon Puopolo, and Stefani Norrbin

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Social Scene

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Gail Lamarche, Rick Williams, and Jeanne Sweeney

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Social Scene

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33

Legal Briefs Christopher J. Thornton joins Goede, Adamczyk & DeBoest, PLLC The law practice of Goede, Adamczyk & DeBoest, PLLC is pleased to announce that Naples attorney Christopher J. Thornton has recently joined their firm. Thornton, who has practiced law in Naples since 1999, focuses primarily on the representation of condominium, cooperative, homeowners and amenities associations, including marinas and golf clubs. His experience includes residential and commercial real estate transactions, commercial lending, and all aspects of land use and zoning. Thornton has represented community associations, owners and developers before state and local government in all phases of development and permitting. With a diverse experiential background, he is versed in environmental law having worked for two years as an assistant general counsel with the Florida Department of Environmental Protection.

“I have seen the tremendous growth that has taken place at Goede, Adamczyk & DeBoest, PLLC, and excited to be a part of their growing, strong, and aggressive community association practice,” states attorney Christopher J. Thornton.

"The expansion of our legal team further strengthens our ability to meet the needs of our growing list of clientele in the Fort Myers, Naples and Miami offices," said Richard DeBoest, Partner at Goede, Adamczyk & DeBoest, PLLC. DeBoest adds, "Chris's extensive community association and land use experience is a valuable asset to our firm."

Thornton is President of the Duke Alumni Club of Naples/Fort Myers, a member and steward of the North Naples United Methodist Church, a member of the Collier County Bar Association and 2008 chair of the Collier Bar Real Estate Section, a member of the Florida Bar and the Florida Bar Real Property, Probate and Trust Law Section.

“Chris is very involved in the Naples community and will make a valuable addition to our expanding law practice. Our clients will benefit tremendously from his knowledge, skill and expertise,” said John C. Goede, Managing Partner of Goede, Adamczyk & DeBoest, PLLC. Attorneys John C. Goede, Mark E. Adamczyk and Richard D. DeBoest, II combined their experience and knowledge to create the law firm of Goede, Adamczyk & DeBoest, PLLC in January 2013. The firm provides expanded legal services for the growing number of community associations they represent throughout the State of Florida. The firm represents and counsels clients throughout South Florida including Miami-Dade, Lee, Collier, Charlotte, Hendry, and Glades Counties. Goede, Adamczyk & DeBoest, PLLC proudly operates from three office locations: 8950 Fontana Del Sol Way, Suite 100 in Naples, 2030 McGregor Boulevard in Fort Myers and Westside Plaza III at 8200 Northwest 33rd Street, Suite 303 in Miami. For more information, call toll-free 855-331-5100.

Mark R. Klym promoted to partner at Hahn Loeser & Parks LLP Hahn Loeser & Parks LLP is pleased to announce that Mark R. Klym has been promoted to partner at the firm. Mr. Klym is a partner in the firm’s Naples office who focuses his practice in estate planning. Mr. Klym's experience includes development of succession plans, drafting limited liability companies and start-ups, administration of trusts and guardianships and administration of estates. He has a wealth of experience in the preparation and implementation of all segments of estate plans, including durable powers of attorney, health care directives, revocable trusts, irrevocable life insurance trusts, beneficiary designation planning and utilization of Section 529 plans.

Mr. Klym was recently selected to the 2013 class of Leadership Collier, a program designed to educate local business leaders on societal and economic challenges facing their community, giving them the tools they need to become engaged, address area challenges and work toward solutions in the public interest. He earned his J.D. from Ohio Northern University College of Law in 1995, and his B.A. from the University of Vermont in 1992.

More information can be found at www.hahnlaw.com.

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Legal Briefs Representative Fitzenhagen participates in Nova Law School Panel Representative Heather Fitzenhagen of District 78 took part in the ‘Alternative Legal Careers Panel’ on Thursday, February 28th at Nova Southeastern University’s main campus in Fort Lauderdale. Students enrolled in the Shepard Broad Law Center at the university heard firsthand from the Representative about her experiences and successful career path that brought her to her current position in the Florida Legislature.

Representative Heather Fitzenhagen is a member of the Lee County Bar Association, and a Partner at the Goede, Adamczyk & DeBoest, PLLC. The law firm has offices in Fort Myers, Naples and Miami and serves clients throughout the South Florida area. For more information please contact the District Office at (239) 533-2440.

Attorney Luis E. lnsignares published author in “Florida Dissolution of Marriage" Fort Myers Attorney Luis E lnsignares has been published for the second year in a row in "Florida's Dissolution of Marriage," an annual publication from the Florida Bar Continuing Legal Education.

Luis is published in the recently released 11th edition of the book, published annually

by LexisNexis, and was selected to write the pleadings chapter for the updated legal text.

This newest pleading chapter addresses the new e-filing and e-service requirements for all Florida lawyers.

A member of the Executive Council of the Family Section of the Florida Bar Association, lnsignares has been instrumental in updating changes to the Florida rules and procedures pertaining to the dissolution of marriages based on recent statutory changes. This is reflected in the updated edition which provides guidelines for all Florida attorneys to follow. lnsignares is Board certified in Marital and Family Law and was recently a featured speaker at the at the annual Family Law Certification Review sponsored by the Family Law Section of the Florida Bar and by the American Academy of Matrimonial Lawyers (AAML).

Luis E. lnsignares Attorneys at Law is an established Fort Myers practice specializing in marital, family and appellate law. Luis E. lnsignares has been a practicing attorney since 1989 and opened the practice of Luis E. lnsignares Attorneys at Law in 2000.

CRIMINAL DEFENSE DEFENSE♦ ♦CRIMINAL

SCOTT T. MOOREY 239-275-5552

1430 Royal Palm Square Blvd. Ste. 101 Fort Myers, FL 33919

scott@GoodPeopleDoGetArrested.com RES GESTAE | APRIL 2013

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Legal Briefs Cummings & Lockwood achieves various recognitions

Cummings & Lockwood LLC was selected as the Law Firm of the Year by Legal Aid Service of Collier County for its contributions to the local community. Legal Aid Service of Collier County provides free civil legal services to the underserved population of Collier County through pro bono volunteer attorneys.

The firm was also recognized as one of the 2013 U.S. Top Ranked Law Firms by LexisNexis Martindale-Hubbell. To earn this recognition, law firms must have 10 attorneys and at least one in three of those attorneys must have achieved an AV Preeminent rating.

In addition, Cummings & Lockwood was recently ranked as the fourth largest law firm in Southwest Florida. The firm is 104 years old, with three offices in Florida and three in Connecticut.

Marve Ann Alaimo, Mary Beth Crawford, and Kenneth D. Krier, principals at Cummings & Lockwood LLC, were selected as Five Star Wealth Managers, a select group representing less than fourth percent of the wealth managers in the Southwest Florida area.

Finally, Benjamin D. Babcock, an attorney in the Naples office, was selected for Growing Associates In Naples.The program is designed for emerging leaders and professionals in Collier County, and is held in coordination with the Greater Naples Chamber of Commerce and The Leadership Collier Foundation. Babcock focuses his practice in Trusts & Estates.

Shannon Puopolo elected to Voices for Kids Board The law firm of Henderson, Franklin, Starnes & Holt, P.A. is pleased to announce that Attorney Shannon Puopolo has been named to the Voices for Kids of Southwest Florida’s Board of Directors (“VFK”). VFK supports the Guardian ad Litem Program for Lee, Collier, Charlotte, Hendry and Glades counties. Guardian ad Litem volunteers are the eyes, ears and voices for children who are abused, neglected and abandoned. Through grants, individual donations, sponsorships and events, VFK has raised over $1.8 million since 2002 to address unfunded and unmet needs of Southwest Florida’s most vulnerable children.

Puopolo concentrates her commercial litigation practice handling creditors’ rights in bankruptcy and representing lenders in foreclosure proceedings. She also represents resident and commercial landlords in eviction and ejectment proceedings. Puopolo also handles lien collection matters for creditors, including writs of garnishment and levies. In 2012, she was recognized by Florida Super Lawyers® magazine as a “Rising Star” in the field of business litigation. Puopolo serves as Vice President of the Lee County Bar Association’s Young Lawyer’s Division and is a member of the Calusa Inns of Court, Lee County Bar Association and American Bankruptcy Institute.

Puopolo received her undergraduate degree from Washington University in St. Louis (B.A., 2005) and her law degree from the University of Miami School of Law (J.D., cum laude, 2009). For more information on Anderson or Henderson Franklin, please visit www.henlaw.com.

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Legal Briefs Neale Montgomery and Steve Hartsell appointed to committee to address barriers to economic development in rural communities

Pavese Law Firm partners Neale Montgomery and Steve Hartsell have been named to the Southwest Florida Regional Planning Council’s “Legal and Regulatory Reform to Increase Governmental Efficiency Ad Hoc Committee.” The committee is assigned to a special six-month project to address regulatory barriers to economic development in rural communities in the region, and to identify potential solutions including comprehensive plan amendments and land development regulation amendments.

Montgomery and Hartsell were selected based on their experience in land use development and permitting law.

Montgomery and Hartsell concentrate their practices primarily on zoning, land use and development law as well as other real estate and environmental issues related to the development of land at the local, state, regional and federal levels. Both have served as Florida Land Use Dispute Resolution Special Magistrates and represent clients in administrative hearings in local and regional jurisdictions. Both are members of the Florida Bar and the Lee County Bar Association and have achieved the Preeminent AV Rating for legal ability and ethics from Martindale-Hubbell.

Attorney maintains board certification, the Florida Bar’s ‘legal expert’ status, for 30 years Attorney T. Rankin Terry Jr., is one of eight lawyers from the 20th Judicial Circuit among the 221 Florida Bar members who earned legal board certification in civil trial or tax law in 1983 and have remained certified for 30 years.

In Florida, only board certified lawyers may use the terms “specialist,” “expert” or “B.C.S.” for Board Certified Specialist when referring to their legal credentials.

"Maintaining board certification for 30 continuous years is a significant professional accomplishment," said Florida Bar President Gwynne A. Young of Carlton Fields in Tampa.

"These individuals are leaders by example in Florida's legal profession and we salute their commitment to excellence and professionalism in the practice of law."

Board certification evaluates attorneys’ special knowledge, skills and proficiency in various areas of law and professionalism and ethics in practice. About 4,600 of Florida’s 93,000 lawyers have earned board certification. Florida offers 24 specialty areas for board certification, more than any other state.

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Legal Briefs Attorney Christina Harris Schwinn to address worker misclassification at Northeastern University School of Law employment symposium Pavese Law Firm partner Christina Harris Schwinn will participate in a panel discussion on emerging issues in employee misclassification on March 22 at Northeastern University School of Law in Boston. The symposium will examine employment relationships and explore the legal definitions of employee and independent contractors. One of four attorneys from around the U.S. tapped to participate in the panel, in the panel discussion titled, “Emerging Issues in Worker Misclassification Under Federal and State Regimes,” Schwinn will address the issue of the propriety of paying a half-time overtime premium instead of time and one-half retroactively in exempt misclassification cases under the Fair Labor Standards Act. This topic was the subject of Schwinn’s thesis for her Masters of Laws in Employment Law from Atlanta’s John Marshall School of Law. “Rather than focus narrowly on misclassification, the symposium will consider the broader social welfare implications of how and why the law fixes who is in and who is out,” said Schwinn. “We hope to not only discuss the limits of the protections that are available, but to examine strategies for change and to envision new possibilities for employment relationships and workplaces.”

Schwinn’s primary practice areas are employment law, business transactions, community association law and real estate law. Schwinn, who joined Pavese Law Firm in 2005, is an accomplished public speaker and regularly writes articles that have been published both locally and nationally in a variety of publications. Schwinn is available to speak to local businesses and organizations on a variety of employment law topics and can be reached at 239-336-6228 or christinaschwinn@paveselaw.com.

Elizabeth van den Berg speaks at Ave Maria School of Law Attorney Elizabeth van den Berg of Goldstein, Buckley, Cechman, Rice & Purtz, P.A., spoke to students at the Ave Maria School of Law during a panel discussion of the Lee County Association for Women Lawyers recently. She answered questions from the student community including areas of interest such as work life balance; solo practice vs. small firm vs. large firm; suggested courses and areas of focus during law school; helpful associations, affiliations and experiences including intern and extern programs; hours worked and resume pitfalls.

She is a graduate of the Florida State University College of Law and was an adjunct professor in the Paralegal Studies department of Edison State College in Fort Myers.

For more information, visit www.JusticeStartsNow.com, call **LAW (529) on a mobile phone, or 239-334-1146.

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Legal Briefs Attorney Nick Mizell appointed to Local Rules Advisory Committee Nick Mizell, an attorney with Cheffy Passidomo in Naples, has been appointed by the Judges of the U.S. District Court for the Middle District of Florida to the Court's Local Rules Advisory Committee for a term to expire December 31, 2014. Nick previously worked for state and federal court judges both during and after his graduation from the University of Kansas School of Law, where he served on the Law Review and was selected by the faculty to the Order of the Coif. He focuses his practice on civil litigation and trial work, and is an active member of the Thomas S. Biggs American Inn of Court.

Additional information is available at www.napleslaw.com.

Ted Wolfendale appointed to state healthcare task force Local attorney and owner of Dial-A-Nurse Ted Wolfendale was recently appointed

by Florida Senate President Mike Haridopolos to the Purple Ribbon Task Force as the representative for the Home Care Industry for Florida. Senator Haridopolos appointed six individuals from around the State to work together and develop a comprehensive State Plan to address the needs of Alzheimer's disease patients and their caregivers, and report directly to the Governor. The Purple Ribbon Task Force operates under the Department of Elder Affairs.

Seeking a staff attorney for the Family Law Office.

Must be member of Florida Bar in good standing.

Salary + benefits.

Lee County Legal Aid Society of Fort Myers, Florida Fax resume to 239-334-4305 or e-mail to KEPugh2@Earthlink.net

OFFICE SHARING OPPORTUNITY with Patterson, Eskin and Ball 1420 SE 47th Street Cape SE Coral, FL 33904 1420 47th Street

Prime Downtown Cape Coral Location Cape Coral, FL 33904

For More Information Please Contact

Hal Eskin, Dixie Lee Ball or Janice Meredith at (239) 549-5551 or Email jsmere@comcast.net

RES GESTAE | APRIL 2013

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Legal Briefs Ave Maria School of Law participates in groundbreaking decision on separation of powers by U.S. Court of Appeals.

One of the most significant constitutional law decisions on the separation of powers between the President and Congress was handed down on January 25 , 2013 by the U.S. Court of Appeals for the District of Columbia. In its Noel Canning v. NLRB decision, the court held void President Obama’s January 4, 2012 recess appointments to the National Labor Relations Board and the Consumer Protection Financial Bureau. Ave Maria School of Law’s Reed Larson Professor of Labor Law John Raudabaugh participated in filing an amicus brief in case. Raudabaugh teaches labor law and conducts a Labor Law Practicum at the Law School.

“The impact of the Noel Canning decision affects all executive branch agencies and judicial branch recess appointments made during Senate intrasession recesses,” said Eugene R. Milhizer, President and Dean of Ave Maria School of Law. “We are pleased that Professor Raudabaugh had a part to play in this historic litigation. At the same time, several of our law school students who are members of the Labor Law Practicum recently submitted a brief to the National Labor Relations Board on behalf of the National Right to Work Foundation to limit union threats and coercion via social media websites such as Face book, etc. This case is the first of its kind and we expect it will overturn a previous ruling by an administrative law judge.”

Dean Emeritus Bernard Dobranski, a nationally recognized expert in the field, noted that “the most important appellate court in the country has delivered a decision that the President does not have the power to define for himself whether the Senate is in recess or not. The court has seen to it that the separation of powers remains intact.”

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RES GESTAE | APRIL 2013

1-888-505-CLUB (2582)

Legal Briefs Cohen & Grigsby celebrates the arts with launch of Applause magazine Cohen & Grigsby, a business law firm with headquarters in Pittsburgh, PA and an office in Naples, FL, is celebrating the thriving arts scene in Southwest Florida by launching Applause magazine. Applause showcases the artists and organizations that contribute to the area’s rich cultural arts experience. The firm unveiled the magazine during an invitation-only launch party on February 2 at the Ritz-Carlton Beach Resort, Naples. During the event, invited guests were treated to a cocktail reception and chamber performance.

“At Cohen & Grigsby, we believe that an investment in the arts is an investment in a region’s future,” said Jack Elliott, president and CEO. “Working in conjunction with many of the firm's clients, we’re committed to bringing awareness to the amazing artists and organizations that influence the rich cultural scene in Southwest Florida. Applause offers a behind-the-scenes look at some of these artists, while also furthering our mission to underscore the positive impact that the arts can have on the communities where we live and work.”

The inaugural issue of Applause features profiles and interviews with local artists, including Kristen Coury, producing artistic director and principle show director at Gulfshore Playhouse; Rick Borman, president and producer for the Naples Town Hall Distinguished Speaker Series and Jill Fralick, chief of staff, Naples Town Hall Distinguished Speaker Series; Steffanie Pearce, acclaimed American soprano and founder and artistic director of Opera Naples; Mally Khorasantchi, painter and recent past president of the United Arts Council; and Theresa Hobart Bill, producer, director, actress, puppeteer and teacher at The Naples Players community theater company.

Each profile in Applause delves into the artists’ passions and contributions to the cultural arts in Southwest Florida. The artists were interviewed in their cultural environment, and the articles are accompanied by portraits of each artist.

The risk of personal information falling into the wrong hands is something we all worry about.

The Lee County Solid Waste Division provides secure document shredding services to Lee County businesses at the Lee County Resource Recovery Facility at 10550 Buckingham Rd., Fort Myers (off SR 82).

For a nominal fee of $35.00/ton ($12.00 minimum fee) you can ensure that your sensitive information has been completely destroyed. Our staff is HIPPA trained. Paper clips and staples do not need to be removed. For additional information and hours of operation call the Lee County Solid Waste Division @ 239-533-8000.

We issue a Certificate of Destruction.

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To learn more about Cypress Lake Country Club, contact us for a free tour and membership consultation today.

239. 481.1333 • www.CypressLakeCC.com

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6767 Winkler Road, Fort Myers, Florida 33919

Kunkel Miller & Hament is on the cutting edge of the emerging and changing law. Each of our attorneys is able to provide our clients legal counseling and representation in each of the areas that comprise labor and employment law today. Our philosophy is to provide our clients with the highest quality and most cost-efficient counseling and representation to achieve their objectives within the parameters imposed by applicable labor and employment laws.

(800) 828-7133 www.kmhlaborlaw.com Apalachicola • Sarasota • Tampa • Fort Myers Satellite Office

The hiring of a lawyer is an important decision that should not be based upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.

RES GESTAE | APRIL 2013

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Calendar of Events

APRIL 2013 5

MAY 2013

Young Lawyers Division Lunch Meeting French Connection at Noon

Investiture of Hon. James M. McGarity Collier County Courthouse, Courtroom 2A at 3 p.m.

12

Membership Committee Meeting

Law Day Blood Drive

2

LCAWL Judicial Appreciation Cocktail Reception

Henderson Franklin in conference room 1 at Noon

RPPTL Practice Section Lunch Noon

18 19

Family Law Practice Lunch LCBA 3rd Thursday Social, 5 – 7 Membership Meeting

24 25

Executive Council Meeting

11:45 a.m., Royal Palm Yacht Club (Special rate for this event: $25 members/ $30 non-members) 5:15 p.m. at Mary Evans’ Office

Land Use & Governmental Law Practice Section Lunch Meeting Lee County Public Works, 1500 Monroe St, 1st FL Conf Rm

Investiture of Hon. Lisa S. Porter

Lee County Courthouse, Courtroom 1A at 3 p.m.

27

1

5-7 p.m.

3

2DCA Judges with Students Q & A and Oral Argument Court Student Program starts at 8:00 sharp

Membership Meeting “Law Week Awards Program”

11:30 a.m. at Royal Palm Yacht Club (Special rate for this event: $25 members/ $30 non-members)

10 16

Membership Committee Meeting

12 p.m. Henderson Franklin in conference room 1

Family Law Practice Lunch LCBA 3rd Thursday Social 5-7 p.m.

17

Judicial Assistants Appreciation Luncheon

Joint Event with Lee County Alliance of Legal Professionals at Royal Palm Yacht Club 11:30 a.m.

See pg 17 for contact inforamtion

The Law in the Mall

10 – 2. Free legal advice, seminars on Bankruptcy, Foreclosure, Family Law, Representing Yourself in Small Claims Court: “When to do it, when NOT to do it”

8 a.m.- 3 p.m. at the corner of MLK blvd and Monroe See pg 17 for details and appointment information

18 22 27 30

Voices for Kids Charity Golf Tournament

Roetzel & Andress Title Sponsors at Raptor Bay Golf Club

Executive Council Meeting 5:15 p.m. at Mary Evans’ Office

Memorial Day- Offices Closed Land Use & Governmental Law Practice Section Lunch Meeting Lee County Public Works in first floor conference room

Visit www.leebar.org for more calendar information

THE LEE COUNTY LAND USE BAR 2013 SCHEDULE MEETINGS WILL TAKE PLACE FROM 12:00 PM - 1:30 PM EXCEPT FOR DATES HIGHLIGHTED IN BLUE, MEETINGS WILL BE HELD AT LEE COUNTY PUBLIC WORKS 1500 MONROE STREET, FT. MYERS, FL 33901 1ST FLOOR LARGE CONFERENCE ROOM THURSDAY, APRIL 25 THURSDAY, MAY 30 NO MEETING - JUNE THURSDAY, JULY 25

THURSDAY, AUGUST 29 AT HENDERSON FRANKLIN (CR #1) THURSDAY, SEPTEMBER 26 THURSDAY, OCTOBER 31

Would You Like to Submit an Event?

Email your event submission to resgestae@leebar.org

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RES GESTAE | APRIL 2013

Extremely

Floridian Gray | Robinson Pays tribute to the physicians, dentists and nurses who volunteer their time and expertise to carrying out the mission of the SENIOR FRIENDSHIP CENTERS’

FRIENDSHIP HEALTH CLINIC serving underserved patients in Collier and South Lee Counties.

SENIOR FRIENDSHIP CENTERS’ Mission Statement “Promoting health, dignity and quality of life throughout the journey of aging.”

Naples Attorneys Gary Carman Dennielle Downes Amy L. Garrard Lisa H. Lipman Michael D. Randolph Burt L. Saunders Carl E. Westman

Fort Lauderdale | Jacksonville | Key West Lakeland | Melbourne | Miami | Naples Orlando | Tallahassee | Tampa

5551 Ridgewood Drive, Suite 101 Naples, FL 34108

239-598-3601 l www.gray-robinson.com

Congratulations to the Members of the Lee County Bar Association’s

100 Club

Aloia Roland & Lubell, LLP Andrew S. Epstein, P.A. Arend & Sisk, P.A. Bonita Springs City Attorney’s Office Costello Royston & Wicker, P.A. Boyle Gentile Leonard & Crockett P.A. Bruno & Prado, PLLC Burandt, Adamski & Feichthaler, P.L. Calvo & Calvo Coleman & Coleman Engvalson & Associates, P.A. Fowler White Boggs, P.A. Freidin • Dobrinsky Fried & Fried, P.A. Geraghty, Dougherty, Edwards, P.A. Goldberg, Racila, D’Alessandro & Noone, LLC Goldstein, Buckley, Cechman, Rice & Purtz, P.A. Grace Crawford Green, Schoenfeld & Kyle, LLP Grossman Law & Conflict Management Hahn Loeser & Parks LLP Henderson, Franklin, Starnes & Holt, P.A. Hersch, Kinsey & Hill, P.A. Joseph R. Gaeta, P.A. The Law Offices of Kevin F. Jursinski, P.A. Knott Ebelini Hart

Kushner & Kushner Lee County Legal Aid Society, Inc. Luis E. Insignares, Attorneys at Law The Livingston Law Firm McQuagge Law Firm The Law Firm of Scott T. Moorey Neaher & Teuber, PL Norma Hand Brill, P.A. North Law Firm, P.A. The O’Brien Law Firm O’Halloran & O’Halloran, Attorneys at Law Osterhout & McKinney, P.A. Parvey & Frankel Prather and Swank, P.A. Andre J. Patrone, P.A. Pavese Law Firm Phoenix Law Partners, P.A. Rubinstein & Holz, P.A. Sheppard, Brett, Stewart, Spivey Law Firm, Personal Injury Attorneys PA Steinberg & Linn, P.A. Strayhorn and Persons, P.L. Thompson Family Law, P.A. Toll Law Viles & Beckman, LLC Webb & Scarmozzino, P.A. Weldon & Rothman, P.L. The Wilbur Smith Law Firm, PLLC Yeslow & Koeppel, P.A.

Is your firm part of the 100 Club? Any firm with 2 or more attorneys and 100% membership in the LCBA qualifies. If you feel your firm is eligible fax a listing of your attorneys to (239) 334-0523 and we will let you know.

RES GESTAE | APRIL 2013

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Referral Fees Paid Many businesses that did not know they could make a claim are now included in the proposed BP Oil Spill Settlement.

Your clients may qualify for compensation, even if their business is located in town and not on the beach. Businesses may include: Gasoline Stations Sporting Goods Stores Department Stores Gift and Souvenir Stores Taxi Services Restaurants

Airport Operations Tour Operators Travel Services Museums Salons & Spas Historical Sites

Retail Stores Zoos and Gardens Hotels and Motels Bed and Breakfast Inns Snack Bars Local Attractions

PRSRT STD U.S. POSTAGE

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FT. MYERS, FL PERMIT NO. 147

P.O. BOX 1387 | FORT MYERS, FL 33902-1387 (239) 334-0047 | FAX (239) 334-0523 WWW.LEEBAR.ORG

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See us for a business loan or fixed rate residential loan to purchase or refinance. We have competitive interest rates and now is the time to borrow while rates are historically low!

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From left: Robbie Roepstorff, President; John Ammons, Cleveland Avenue Office Manager; Leah Kirby, River District Office Manager; Liz Aurensan, Lender; Kim Nyberg, Lender; Pam Edwards, Lender; Geoff Roepstorff, CEO

13000 S. Cleveland Ave. Fort Myers, FL 33907 239.466.1800

2105 First St. Fort Myers, FL 33901 239.334.4668

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