Res Gestae - August 2013

RES GESTAE

THE OFFICIAL PUBLICATION OF THE LEE COUNTY FLORIDA BAR ASSOCIATION

AUGUST 2013

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Contents 6

Letter from the President

8

Letter from the Editor

by Nanci DuBois

11

Supreme Court Adopts Code for Resolving Professionalism Complaints

by Mary C. Evans, Esq. 239.334.0047 resgestae@leebar.org

staff box

Publisher Connie Ramos-Williams 239.690.9840

by Henry Lee Paul

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16

Dean Milhizer’s Side Bar Silence and the right to remain silent

Associate Editor Sara Fitzpatrick Comito

by Dean Eugene R. Milhizer

15

Terry’s Take On Things

Layout and Design Kat Godina

“Legislative learning” and the 2013 foreclosure law

Advertising Director Linda Fiore 239.690.9840

by T. Rankin Terry

16

The Dish La Casita

by Sara Fitzpatrick Comito

19

Vetting the Expert Witness

21

by David B. Watts

21 Florida Rural Legal Services

Community Connection featuring David C. Potter

23

Nurturing the Soul

LCBA artist attorneys make a big impression

by Sara Fitzpatrick Comito

28 29

23

32

100 Club Members Deadline Looms to Dispute Proposed Property Taxes

by Michael S. Hagen

On The Bench

Hon. Sheri Polster Chappell

by Sara Fitzpatrick Comito

33

From The Bar Ron Buschom, Esq

by Sara Fitzpatrick Comito

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RES GESTAE | AUGUST 2013

Executive Editor Nanci DuBois 239.334.0047

33

Legal Briefs

43

Catching Up With...

44

News and Happenings Young Lawyers Division

Calendar of Events

Contributing Writers Sara Fitzpatrick Comito Nanci DuBois Mary C. Evans, Esq. Michael S. Hagen Dean Eugene R. Milhizer Henry Lee Paul T. Rankin Terry David B. Watts Billing Inquiries 239.334.0047 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.

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.

ON THE COVER: L-R back row: Robert Young, Thomas Chase, Paul Liles, John Coleman, (front) Rana Holz, Katharyn Owen, Patricia Zalisko, Pauline Franklin Cover Photo: Kat Godina 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 The following actually happened.

It was a lovely spring day. I was dressed in a sleeveless blue sun dress. A colleague approached me and said “Hi Mary, when’s the big day?” I said “What big day?” He: “When’s your baby due?”

Me: “Eleven years ago.” He: “What?” Me: “I’m not pregnant.” Poor guy wanted to fall through the floor. He: “No no.

Someone told me you were pregnant.”

Me: “No, someone told you I’ve gained so much weight I LOOK LIKE I’m pregnant.” He went on, insisting someone had told him I wanted to have

a baby. (Sidebar: I don’t.)

I have repeated that story several times, and every time I tell it I crack up laughing. First, (as you’ve figured out by now) I don’t take myself too seriously.

I am the first person to bust on my own self, especially about my muffin top.

Second, I can take a joke. My mother raised us to suck it up – if you can give it, you better be able to take it. And, as the oldest of four children, I REALLY learned how to give it and take it.

Third, that encounter was just plain funny! Like the time when an opposing counsel, the judge, the bailiff and I were laughing in court. It was attorneys only on a discovery hearing. (Snore.) I made a comment to the judge and the opposing counsel said “You’re just upset because I have a hole in my pants.”

The judge looked down at the bench, closed his eyes, put his hand out and said “T.M.I. ! T.M.I. !” We were all falling down laughing.

We must take every opportunity to laugh…our health depends on it. Have you ever laughed so hard you were begging for air? Bent over grabbing your stomach? Tears running down your cheeks?

If you haven’t laughed that hard recently, then it’s time to up your game. Watch a comedian you like.

Watch SNL when Justin Timberlake has hosted.

Watch Blazing Saddles or The Life of Brian.

I routinely address a particular colleague as “Dear Biggus” and he calls me “Incontinentia.”

Family members often request I pass the vegetables by saying “More beans, Mr. Taggart.” To which I reply “’Scuse me while I whip this out.” If you don’t know what the hell I’m talking about, then turn on Pay Per View and start searching.

Do it now! You’ll feel better! And levity is a necessary balance to this heavy, serious profession we practice. Speaking of heavy, I’m going for a walk while I can still see my toes. |RG|

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

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RES GESTAE | AUGUST 2013

administrative team 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 Jamie Maurer, Esq. Law Week Hon. John S. Carlin Library Robert L. Donald, Esq. Mock Trial Mary C. Evans and Claudia Volk Past President Karla Y. Campos-Andersen, Esq. Pro Bono Vanessa Cordero, Esq. and Katie Berkey, Esq. MEMBERSHIP Carlos Kelly, Esq. Social Events Theresa Daniels, Esq. & Amanda Mitteer-Bartley, Esq. technology Michael E. Chionopoulos, Esq.

practice section chairs

Alternative dispute resolution Anne Dalton, Esq. APPELLATE LAW PRACTICE SECTION Margaret White-Small, 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 EDUCATE & PARTICIPATE! IN THE KNOW…CLEs coming up!

There are two LIVE morning CLEs coming up of note, both being presented as full morning programs, prior to our Membership Luncheons.

Read more about these important programs on our website.

August 23, 8 a.m. at Sidney & Berne Davis Art Center: “Expert Witness Seminar,” featuring local attorneys and a judicial panel. The luncheon that follows is a timely “Legislative Update,” with Rep. Heather Fitzenhagen. Sign up & pay online today!

September 20, 8 a.m., The Edison Restaurant: “Guardianship Training for Attorneys,” prior to our membership luncheon “Constitution Week Celebration.” The CLE is a free 3-hour training, with a pledge to accept one case pro bono over the next two years. $5 discount to attend the luncheon as well!

And here’s a special couple of free webinars offered by Jacksonville Area Legal Aid (JALA): “EMPLOYABILITY: Eliminating the Barriers.”

Webinars: “Driver’s License Reinstatement” & “Sealing and Expunging Records” ON THE GROW… Announcing a NEW PRACTICE SECTION! Appellate Law Practice Section, chaired by attorney Margaret White-Small, has just been approved and established. Margaret has been a regular contributor in Res Gestae, and in her new leadership role will bring the practice of appellate law into focus with educational programs and Section meetings that concentrate on this very specific area of the law.

And now, a message from our Social Committee Chair, Amanda Mitteer Bartley: “Since I first began working as an attorney in Florida, I have been a member of the Lee County Bar Association’s Social Committee. When Rana Holz, Esq. resigned as the Chair, I had the honor of serving as the Co-Chair with Kelly Fayer, Esq. of Kelly L. Fayer, P.A. for the past two years. Regretfully, Kelly is stepping down from her position as she is now the LCBA’s Member-at-Large.

We will miss her hard work and dedication to the LCBA Social Committee, but know that these efforts will be applied to the LCBA overall in her new position.

In light of Kelly’s decision, please join me in welcoming Theresa Daniels, Esq. of Goldstein, Buckley, Cechman, Rice & Purtz, P.A., as the new Co-Chair of the LCBA Social Committee!

Theresa and I first met years ago at All Injuries Law Firm of Brian O. Sutter, Esq. while I was studying for the Florida Bar examination and she was finishing up law school. Our paths crossed again later in life when we had the pleasure of working together as attorneys for Kelley, Kronenberg, et al. Although our careers have taken different paths, we have always kept in touch and remained great friends. I look forward to working with Theresa, who has always gone above and beyond in any position that she has held.“ - Amanda Mitteer Bartley, Esq., Kelley Kronenberg et al.

To join the Social Committee connect at admin@leebar.org or E-Mail: abartley@kelleykronenberg.com |RG| Nanci G. DuBois info@leebar.org | (239) 334-0047 ext. 102

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RES GESTAE | AUGUST 2013

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10/12/12 9:13 AM

Supreme Court Adopts Code For Resolving Professionalism Complaints

by Henry Lee Paul The Florida Supreme Court has changed the ground rules The procedure and structure of the Local Professionalism regarding unprofessional conduct in Florida. On June 6, 2013 Panels has been left undefined and will likely be addressed the Court issued an opinion in In Re: Code For Resolving further in an administrative order by the court. It is anticipated Professionalism Complaints, SC13-688. The court adopted that there will much discretion in these matters left to the chief the recommendation of the Supreme Court Commission on judge of each circuit. In addition, the Board of Governors Professionalism and has mandated that lawyers “shall not Standing Committee on Professionalism has been tasked with engage in unprofessional conduct.” Unprofessional conduct serving as a resource to assist the panels. means “substantial or repeated violations” of the Standards of The 20th Judicial Circuit is one of only eight circuits that have Professionalism. some form of Peer Review Program. Chief Judge Rosman has led The Standards of Professionalism, as defined in the opinion, the effort to re-establish the Peer Review Program and a Circuit consist of the Oath of Admission to The Florida Bar, The Florida Professionalism Committee. Judge Rosman re-established the Bar Creed of Professionalism, The Florida Bar Ideals and Goals Circuit Professionalism Committee by Administrative Order of Professionalism, The Rules Regulating The Florida Bar and the No. 2.34 on December 21. 2011. The Peer Review Program was decisions of The Florida Supreme Court. The Code For Resolving re-established by Administrative Order No. 2.20 on February Professionalism Complaints was made effective immediately.

1, 2013.

To help enforce this mandate the opinion also required that The Local Professionalism Panel, as defined in the opinion, the chief judge of each circuit establish a Local Professionalism is intended to be more expansive than the existing Peer Review Panel. Once established, that panel may receive complaints Program in that it provides non-lawyers may make referrals. from judges, lawyers and non-lawyers involving a violation of The Court has made clear that it expects all circuits to establish a the newly defined Standards of Professionalism.

Local Professionalism Panel. This opinion is a groundbreaking The purpose of the Local Professionalism Panel is to allow precedent that establishes Florida as the leading jurisdiction in for an informal and local mechanism to identify unprofessional the enforcement of professionalism. |RG| conduct and to utilize a “wide range of interventions,” which may simply consist of verbal counseling by one or more members.

In the event of more severe transgressions, the conduct will be referred to The Florida Bar for possible discipline provided Henry Lee Paul is a member of the Supreme for in The Rules Regulating The Florida Bar. The Florida Bar Court Commission on Professionalism and the may also refer complaints of unprofessional conduct to a Local Board of Governors Standing Committee on Professionalism Panel for informal resolution. The actions of a Professionalism.

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RES GESTAE | AUGUST 2013

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Dean Milhizer’s Side Bar

Silence and the Right to Remain Silent

by Dean Eugene R. Milhizer

The Supreme Court published a flurry of important decisions as its term drew to a close this spring. Cases relating to affirmative action, the Voting Rights Act and same sex marriage overshadowed Salinas v. Texas, decided on June 17. Salinas is an important criminal justice case, in which a plurality of the Court concluded that prosecutors can use a noncustodial person's silence against him even when this occurs before the person is advised of his right to remain silent.

Genovevo Salinas was convicted of murder. He was subject to noncustodial police questioning during the investigation of the crime. Before Salinas was arrested or read his Miranda rights, he responded to some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon. At trial, the prosecutor argued that Salinas’ silence in face of the question about the murder weapon was evidence of his guilt. Salinas appealed, contending his Fifth Amendment right to remain silent should have prohibited the use of his silence against him in court. The lower courts disagreed with Salinas and affirmed his conviction, and the Supreme Court ultimately affirmed the lower courts decisions.

The Miranda protections apply only when there is custodial interrogation. As Salinas was not in police custody (he voluntarily went to the stationhouse), Miranda warnings were not required.

Further, Justice Alito, writing for a three-justice plurality, reiterated that the privilege against self-incrimination must generally be expressly invoked, which Salinas never did. Alito explained that there are only two situations in which the right to remain silent exists without it being explicitly claimed: when a defendant does not take the stand at trial, and when government coercion makes forfeiture of the privilege involuntary. Because neither circumstance was present here and Salinas did not expressly invoke the privilege against self-incrimination, the prosecutor could use his silence as evidence against him. Indeed, Salinas’ willingness to answer many questions by the police, both before and after the shotgun question, suggests that he did not wish to invoke his Miranda rights during the interview.

Justice Thomas, joined by Justice Scalia, concurred in the judgment but would have gone further, overruling a prior Court decision holding that prosecutors cannot use a defendant's silence as evidence of guilt.

Salinas is the latest case that implements a decades-old approach by the Court to limit and retract the bounds of the Miranda decision. The Court previously explained that the Miranda warnings were not constitutionally required but were

merely a court-made rule designed to enforce Fifth Amendment protections. Because the warnings were created by the Court, the Court had the authority to limit their application as it saw fit. The Salinas decision is consistent with this understanding of Miranda.

The result in Salinas has many benefits. The protections of the Fifth Amendment (but probably not the full range of additional protections accorded by Miranda as envisioned by the Warren Court) were respected. A guilty person was convicted and punished. A just result was achieved. If one believes that obtaining constitutionally acceptable confessions is a laudable objective, Salinas should be applauded.

But did Salinas actually know he had the right to remain silent?

In an earlier decision, the Court observed that “virtually every schoolboy is familiar with the concept” of the Fifth Amendment.

Certainly there is widespread public awareness of the existence of Miranda rights warnings, if not their precise content. Miranda is a staple of police dramas. In popular culture, the warnings seems to be invoked as often as a punch line as for protection. And, the warnings are repeatedly used as fodder for complaints about “legal technicalities” and a concern for the rights of criminals.

But a general awareness of the Miranda warnings does not necessarily equate to an accurate understanding of their protections and limitations. It seems quite likely many people in Salinas’ position would not realize that they had a right to remain silent in the absence of an advisement by the police. For criminal defense attorneys, the lesson is clear: advise your clients who want to remain silent to say so explicitly whenever they interact with the police, including prior to arrest and during custodial interrogation. This will allow them to make an informed decision whether to answer questions by the police. |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 | AUGUST 2013

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Terry’s Take On Things

“Legislative learning” and the 2013 FORECLOSURE LAW

by T. Rankin Terry, Jr. This law had been in gestation for a long time. Sadly it took a financial crisis to expose our foreclosure law’s problems. The 2013 law (HB 87, 2013 Legislature) is an excellent example of not only political skill and sophisticated legislative craftsmanship (largely

by Naples representative and real estate lawyer Kathy Passidomo) but also of “not allowing the perfect to be the enemy of the good.”

There is a synopsis in the Florida Bar News of July 1, 2013. Kathy’s article on the bill is coming out in the Real Property, Probate, & Trust Law (RPTL) Section’s newsletter, Action Line.

Importantly, largely for political reasons, parts of the law apply only to “owner-occupied residential property” (the law’s definition of which is a little contorted), to wit: 1. Reduction in statute of limitations to apply for a deficiency judgment from 5 to 1 year; 2. Requiring a complaint to affirmatively allege that the plaintiff is the “UCC defined” holder of the original note on the day of filing and the factual basis of the plaintiff ’s entitlement under UCC Sec 673.3011 Fla. Stat. to enforce the note; 3. A deficiency judgment limited to no more than the difference between the judgment amount (presumably after sale proceeds are applied) or outstanding debt after a short sale and the fair market value on the date of the sale; 4. Plaintiff may not apply to have mortgagor vacate during pendency of the foreclosure suit.

If you believe in ‘legislative learning’ there is a good chance that all of the above, except #4 prohibiting mid-suit vacation, will in time be applied to all mortgage foreclosures. If the judiciary had been on top of their game when the financial crisis began they could have under then current case and statutory law required #2 (be the note’s holder on filing and required to initially plea authority to foreclose). Had they done so delay would have been reduced. Everything else applies to all real estate mortgage foreclosures.

Reducing the deficiency judgment statute of limitations to one year will limit the open season on owner-occupied residential mortgagors by “bottom fishers.” When the social history of all of this is written a big topic will be why 95% of the residential

foreclosure defendants did not immediately on being sued take bankruptcy and “shuck it all off.”

The law beefs up the required protections for the note’s maker when trying to foreclose on “lost notes.” Sadly the judiciary not enforcing the prior statute created this problem. No one who even for a second contemplates the fact that a note endorsed in blank is ‘like money’ would allow a foreclosure based on a lost note to proceed without requiring the “enforcer” to put up a bond in at least the amount of the note.

The obviously politically required provisions limiting the relief for being fraudulently foreclosed on to damages and not restoration of the property are going to have a “rough go” constitutionally and statutorily. Sec. 702.01 Fla. Stat. says “all mortgages shall be foreclosed in equity.” The last time I looked equity requires doing what should have been done.

Due to space limitations I close with an incomplete discussion of the continuing push by lenders to breathe life into the “quickie foreclosure” provisions of Sec. 702.10 Fla. Stat., that have laid unused for years. The lender interests have always claimed that if they could just move fast and get the properties back that things would be better. The reality is that the lenders react like the dog that catches too many cars—they can only dispose of so many at a time and their having too many drives down the price of the ones they have.

However, this political theater is not what makes Sec 702.10 a wall flower; it is our homestead law. I don’t have the space to go into it but any title insurance company that insures a title obtained by an order to show cause is being very foolish. The alleged delays caused by doing it “the old fashioned way” are caused by the lenders not moving as rapidly as they could if they wanted to. Plus, any discovery request a defendant makes stops the “quickie” procedure in its tracks. |RG|

T. Rankin Terry, Jr., BSME (Kentucky), JD (Washington Univ. St. Louis), LLM (Tax) (Florida), has been board certified in Civil Trial since 1983 and a Certified Mediator since 1994. He has practiced in Fort Myers since 1972. His email address is trterry@gmail.com.

RES GESTAE | AUGUST 2013

15

The Dish

by Sara Fitzpatrick Comito In Spanish, diminutive suffixes often denote affection. One’s beloved grandmother (abuela) could still be Abuelita, even if she’s gotten quite round in her old age. The “little house” that is La Casita restaurant is actually bigger on the inside that it looks, but is named to reflect a humble approach to homey Mexican comfort food without a lot of frills.

The restaurant’s tagline is, simply, The Purple Place at Iona & McGregor. As taglines go, it does the trick. La Casita is one of those rare places that – purple or not – seems like it’s been there so long that you forget about it. And it’s worth the reminder. As restaurants open and close, it’s good to remember the constants in our local eating scene. Diminutives can often be ironic, kind of like when one’s enormous uncle goes by the nickname Tiny. Similarly, the humbleness implied in La Casita’s name belies an ardent commitment to nourishing people with fresh ingredients and oversized portions, all at reasonable prices.

The location at the front of a Kmart-anchored shopping center parking lot is by no means posh. Deck dining that wraps around three quarters of this funky purple building, though, would be a nice enough place to take in some night air and enjoy a Dos Equis or Bohemia with friends. Well, during the winter months perhaps. On a sweltering July afternoon, our party retreated into the air conditioned interior, which was

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RES GESTAE | AUGUST 2013

The Dish

darkened just enough to make it feel like a getaway from the workaday world. Also on the drink menu is something called a “casita-rita.” This is a phenomenon I’ve seen in several places locally that don’t have a full liquor license, but still wish to offer something like an edgy aqua fresca. The Mucky Duck on Captiva also comes to mind. It’s a margarita made with tequilaflavored wine. I was on the clock, and so didn’t try it. If you do, let me know what you think.

I heard a rumor that during the school year, kids will come in to La Casita for a soda and endless baskets of chips and salsa.

It’s no wonder, as the tortilla chips are hearty yet crisp, and come out piping hot with a crock of fresh-as-can-be chunky salsa. The menu indicates the first two servings are free, but then it’s going to cost you. I’m reminded of my days of working in fine dining establishments, and having to deal cheerfully with “soup eaters:” often older women who come in together, order water and soup and occupy the table for an hour. In this case, however, I can see how it would be tempting. Corona and fresh chips and salsa? Yes, please.

Do be careful not to fill up right away, though. We did order La Casita’s wonderful fresh guacamole and “queso loco,” a creamy white cheese dip. But hey, there were four of us, and what we wouldn’t do for The Dish. People in the know often go right for the wet burrito, what our fearless publisher refers to a the “pregnant burrito.” It did appear a bit misshapen. As it turns out, it’s not on account of any lack of wrapping technique, but this thing is s-t-u-f-f-e-d. It’s good, too. The flour tortilla is a perfect soft consistency that melts in the mouth, containing nicely seasoned, moist beef, in this case.

Also at the table was an impressive-looking taco salad and

some intimidatingly large chicken enchiladas. I often push the rice aside, but it was very tasty here. So were the refried beans.

Substitute pinto beans if you like. They’re both good, just kind of before and after versions. I admit it: I like them mashed up and fried in lard. This isn’t a fitness column, just in case you were confused.

It will be nice to come back and try some of the things we couldn’t possibly work into our working lunch. Posole is a personal favorite. I’m used to seeing it with red chiles and slow roasted pork, but the La Casita version is a clear stock with shredded chicken to go with the requisite hominy, all topped with lettuce and avocado.

Daily lunch specials are available seven days a week.

Standouts include adobo on Tuesday, slow-cooked pulled pork in a homemade tomato sauce, and chile relleno on Saturday.

Relleno is the past participle of “to stuff.” And that’s pretty much what was done to us at La Casita. One among our party actually finished the pregnant burrito. I can’t imagine how he stayed awake for the afternoon’s work. I managed to finish one enchilada and was yearning for a siesta. There is a dessert menu, and I suppose if you plan ahead, you might be able to get to it, but then you’d be better than I. Almost no one leaves La Casita without a box. Think of it as getting lunch and dinner taken care of all in one trip. That second enchilada was just as good reheated. |RG|

La Casita

15185 McGregor Blvd.

Fort Myers (239) 415-1050 www.ionaeats.com Open daily 11 a.m. - 10 p.m.

Sara Fitzpatrick Comito is publications editor for Conric PR & Marketing | Publishing, and associate editor of Res Gestae magazine. She’s also a freelance writer and frequent contributor to the Naples Daily News and other publications. For suggestions or comments on this regular feature, contact Sara at Sara@ConricHoldings.com.

RES GESTAE | AUGUST 2013

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Extremely

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Ms. Borkert’s primary areas of practice include environmental, land use, local government, administrative and real estate law. She represents clients in a variety of matters concerning the conveyance, entitlement and development of real property. She is a member of the American Bar Association, Lee County Bar Association, Lee County Land Use Bar Association and the Lee County Real Estate Investment Society.

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RES GESTAE | AUGUST 2013

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Vetting the Expert Witness

by David B. Watts Unlike the fact witness, who is prohibited from voicing an opinion in court, the expert witness is present in the courtroom to do just that. He or she possesses a specific skill set or knowledge in some science, trade, art or profession, and his or her testimony is intended to influence the course of the trial favorable to a client. While expert witnesses can come from every conceivable field of endeavor, they are most often enlisted from the science or engineering disciplines. Experts present their qualifications and are challenged during the trial process, so they must be prepared to demonstrate their particular expertise as it relates to the issue at hand. Academic credits, articles published and work experience all go into the vetting process, but it is the court that decides to allow or deny testimony upon review of those qualifications and, of course, relevancy and prior acceptability of that type of expert testimony.

But let’s back up a bit. Expert witnesses don’t just randomly appear in court. The effort behind the scenes to locate and engage the expert is where the real work is done. Choosing the best expert witness can be a difficult task. First, we need to narrowly define the area of expertise we are researching. Then we try to match the person to the problem. An attorney friend once told me, “Expert witnesses are like leaves on the trees. They are everywhere. To fit the best expert into my case I have to go from the trunk to the branch to the twig before selecting the right leaf.” In short, it takes patience and intuition to do it right.

Of course, one can always go to The American Trial Lawyers Association for experts. ATLA will provide you with lists of experts in every field imaginable. There are other expert lists available, too. These experts hire themselves out to law firms deriving a significant percentage of their income from paid trial testimony. There is, however, an inherent danger in hiring from these expert lists. These so-called “hired guns” testify so often that their past testimony can come back to haunt them.

With every case having its own particular nature, experts often provide nuanced testimony to fit the occasion. These moments offer opposing counsel the opportunity to challenge the witness’ own words from previous conflicting testimony. Ergo, prior trial or deposition testimony is where the gold is mined! More on opposition research later.

Choosing the “right leaf ” for your case involves online research, making contact with colleges and universities and interviewing potential candidates. Background research and recommendations from colleagues help, as well. We want an

expert who not only knows and can articulate the subject well, but recognize his or her own limitations. We love the expert who is willing to say, “I don’t know ... that is outside my field,” and therefore avoid the ego trap. Personal appearance, demeanor and jury appeal should not be overlooked, as it is only human to like the message along with the messenger.

Opposition research on expert witnesses is rather straightforward. Normally, we have the opposing expert’s CV, so we use that as a starting point. After verifying academic credentials, we review all he has published as it relates to the issue at hand. We locate past testimony in other cases and learn from opposing past experts and the lawyers involved in those cases. Where possible we obtain deposition or trial transcripts.

It is not unusual to find he has taken a specific stand on an issue only to find conflict with what he is putting forth in the instant matter. In short, we try to bury him with his own words.

In a Use of Force matter we researched for Albuquerque, NM Attorney Robert Becker, a banker boxful of material we provided continues to provide fodder to other lawyers on similar cases debunking a particular hired gun-type expert in police shooting cases.

Vetting the expert witness is challenging, time consuming and can be complex. Having the “right leaf ” on your side can make a difference; but getting the low down on the opposition is priceless. |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 | AUGUST 2013

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Community Pro Bono Connection Spotlight “I have always had an interest in pro bono legal work and in the provision of legal services to those who cannot otherwise afford those services,” said David C. Potter. Today the Fort Myers-based Fowler White Boggs attorney is on the board of directors and finance committee for Florida Rural Legal Services, Inc. (FRLS), whose existence “ensures equal access to justice through aggressive advocacy and community partnerships,” according to its vision statement.

Potter nurtured his appetite for representing the underdog even before relocating to Florida. “I practiced in Massachusetts and while there, became involved in representing an individual from Liberia who was trying to get political asylum for his children.” Also at his Boston firm, he was part of a team that represented an individual on death row in Alabama in his postconviction appeals.

Those experiences helped pave the way for Potter to become involved with Florida Equal Justice Center (FEJC), as well.

According to Executive Director Don Isaac, the board of FRLS created FEJC in 2005 “to serve undocumented persons with immigration and other problems whom FRLS could not serve because of federal restrictions on our Legal Services Funding.”

The lawyers involved with both organizations represent an impressive panoply of specializations, including elder law, employment, economic stability, housing, farm-worker law, public benefits, civil rights and family law.

As Potter said, “Each year FRLS and FEJC handle thousands of cases.” He provided this partial list of cumulative benefits amounts from 2012: • Social security benefits: $194,776 • Unemployment benefits: $491,559 • Child support: $440,088 • Alimony: $92,141 • Food stamps and other benefits: $117,265 • Back wages and employment benefits: $448,2154 • Garnishments avoided: $103,605 That’s great news for folks who otherwise would have been in a lot worse shape! But there’s plenty of reason for concern. More than 92 percent of FEJC’s funding came from the Florida Bar Foundation, which has experienced severe cuts. Consequently, FEJC will no longer operate on the west coast after the end of this year. The Fort Pierce office will continue to provide services on the east coast, but with greatly reduced staffing.

Potter explained, “Both organizations have been required to

featuring David C. Potter

make tough decisions the last few years regarding what services to provide based on all of the need that exists out there. The funding for both organizations is very precarious and we try to stay attuned to what the needs of the low income clients are for services.”

You can help. Private attorneys may sign up as pro bono volunteers with FRLS Pro Bono Coordinator Ethel Wells at (239) 334-4554 ext. 4119. Clients are pre-screened by staff and out-ofpocket litigation costs are paid.

Potter offered this additional call to action: “Contact your legislators and tell them how important legal aid is for the poor.

The more we can get that message out, the better off we will be in terms of funding.” |RG| What is your favorite local non-profit? Tell us why you’re involved by writing to resgestae@leebar.org, using Community Connection as the subject line, and we may feature you and your organization in an upcoming issue.

Pro Bono Coordinator Ethel Wells and Past President Karla Campos-Andersen present the FRLS Pro Bono Award to Daniel J. Endrizal, Esq. Photo by Jim Jett

RES GESTAE | AUGUST 2013

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RES GESTAE | AUGUST 2013

Nurturing the spirit LCBA artist attorneys make a big impression

by Sara Fitzpatrick Comito

W

hen this magazine asks our readers, “Why did you want to go into the legal profession?” the answers are worded differently, but tend to point at the same motivation: “I wanted to help people,” or “I felt like I could make a difference.” Those are noble responses, but attorneys and judges can only do the most good when they work to nurture their own spirits first.

One way is to find self-expression in the arts. All through the month of July, a handful of your colleagues put their creative talents on display, and having nurtured their spirits, served to

do the same for the community at large.

Beginning with an Art Walk kickoff on July 5, the “Raising the Bar” exhibit showcased the arts of LCBA attorneys through July 26. The beautiful Sidney and Berne Davis Art Center showcased our eight visual artists, including Thomas Chase, who presented live poetry readings at the kickoff and the special reception on July 18, plus vocalist Rana Holz. To honor these creative people, we’ll wrap up the show with some artistic insight from each.

RES GESTAE | AUGUST 2013

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The storyteller

Thomas C. Chase said, “Laughter is therapeutic, period.” He can point to scientific, peer reviewed research, but the feedback he gets from his audience is all the support he needs for his position. “A wide cross section of our diverse population has told me that my stories and writing, though technically a wreck, have positively impacted their perspective of life, nature and concepts of family.”

Chase caught the storytelling bug from his grandmother and father, who also were talented impressionists. He got involved in class plays starting in elementary school and fondly remembers making his sixth grade teacher laugh so hard she had mascara running down her face.

Today the riches of our regional environment feature prominently in his tales. “Fellow attorney, past president of the Lee County Bar and dear friend, Thomas Smoot III invited me to camp one night at the historic fish shack at the mouth of Safety Harbor.” In the southwestern sky, the two were treated to the light show of a far-off storm. In the northwest, meteors fell like rain. The Timbers Talk is the result of that experience.

“I thought it would be very neat if falling stars prompted the timbers to share their salty past.”

The narrative arc of Fish On mirrors the author’s own learning curve in trying to get a tarpon with a fly rod. “I tried to incorporate all the terms I’ve heard the guides say to others engaged in the pursuit.”

Chase loves to speak to people at assisted living facilities, nursing homes, hospice, civic clubs and businesses. He offers this advice to beginners: “We all need to write what is on our hearts. It helps us understand and define who we are. Write for yourself, from your heart. It will connect you more deeply to your values and passions.”

A life in glass

We featured John Charles Coleman’s artistic process in the June issue, and after seeing his work in person you’re surely intrigued. He works in stained glass and wood, having gained an education in the techniques from his wife, Patsy.

Coleman finds a lot to admire in the works of René Magritte.

He cited the Belgian surrealist’s use of sky as an inspiration

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for his works Curtain of Sky, Through a Keyhole and Three Dimensions of Sky. “The beautiful blues are both tranquil and dynamic,” Coleman said, “the perfect backdrop to accent the focal point of each piece.” Aside from Magritte, he enjoys the work of Dutch post-impressionist Vincent van Gogh and English portrait and landscape painter Thomas Gainsborough.

In his own work recently, Coleman has been focusing on adding dimension and depth. He’s been working in glass for many years now, and although the techniques change, the motivation remains constant. “It’s very rewarding to create something from nothing, and enjoy the feeling of accomplishment at the end of the day.” While some of the artists don’t necessarily see much crossover between their creative pursuits and their day job, Coleman identifies a direct benefit, if only for the ability to step outside the strictures of the day planner. “It provides me the time to reflect on the day, plan for tomorrow, and enjoy the fruits of my labor.”

His advice to beginners is simply, “Never give up.”

Paint what you love Pauline Franklin works in family law, trusts and estates, criminal defense, and oil paint on canvas. “While I enjoy helping people solve their legal problems, it can be stressful at times,” she acknowledged. “Working on a painting provides a place of solace in which to rest for a while so I can return to my office refreshed and better equipped to help my clients.”

She also finds solace in the works of Georgia O’Keefe, Mary Cassatt and Salvador Dali, and expressed especially strong feelings about the latter. “His work absolutely cannot be appreciated from a photograph.” She suggested a visit to the St. Petersburg to see his often very textural, large-format pieces in person.

Franklin started painting as a child. “I loved the paint by number sets I received for Christmas. I painted outside the numbered areas and never seemed to have enough paint.”

Today her inspiration comes from “found” objects. These include a green ceramic basket, a silver hand mirror, and colorful fabrics that she uses for still life backdrops. “After

selecting the objects and fabric, I move them around until I find a composition which I think is pleasing to the eye.”

Lately her work is going for the bold, with larger canvases with more paint, brighter colors and larger brushstrokes. It’s part of her motto to “Boldly paint what you love and never apologize.”

Her major challenge is finding the time. She gets encouragement from her family, however, and the intrinsic rewards keep her going. “The entire process is rewarding because it allows my mind to focus on the artwork and escape the cares of this world.”

A closer connection Rana Holz considers her work as a vocalist to be complimentary to her marital and family law practice. “Being an attorney involves similar skills: practice, rehearsal, timing, and performance,” she explained. “I work hard at and enjoy both immensely.”

She intended to include some Broadway hits in her performance at the “Raising the Bar” show “because they make everyone feel good.”

Holz has been singing as long as she can remember, and performed in a Broadway show chorus in college and served as her sorority song leader. She went on to sing in a large performing arts choir in Clearwater and with the ensemble

at the Show Boat Dinner Theater. Upon relocating to Fort Myers, she began singing with the contemporary choir at St. Cecilia’s Catholic Community, where the director encouraged her to become a cantor. In 2006, she began singing with the Southwest Florida Symphony Chorus, and presently sings with the Symphonic Chorale of Southwest Florida where she also serves on the board of directors.

“I enjoy lifting spirits at a special event and being part of making a masterpiece come to life when singing with a chorus and orchestra,” Holz said. However, “I am most inspired when my singing helps someone have a closer connection to their faith or to the liturgy during a Mass.”

Her advice to aspiring singers is, “Listen as often as you sing, and imitate what you hear. Find good instruction, because there is always something new to learn and ways to improve.”

She’s grateful that lately she’s had the opportunity to improve with the guidance of Symphonic Choral Artistic Director Dr. Timothy McDonnell, who also leads the music department at Ave Maria University. “Every rehearsal is like an incredible voice lesson. He knows the human voice well and despite our numbers, helps us to make purer, more consistent, quality sound.”

She also appreciates the constant encouragement of her husband.

Open your mind Paul E. Liles never thought his works would be in a show.

He now focuses on state and federal administrative, civil and criminal trial, and appellate practice, but has previously passed the time by drawing portraits. “The drawing of Geraldine Ferraro was done in a laundromat,” he said. “The drawing of Eudora Welty was done during my first year law school exam study time where I just wanted to take a break and did not care how long it would take.”

More than 50 years ago, he started off using the good-old No. 2 pencil. “It was convenient, inexpensive, and generally found anywhere I traveled.” He explained he always enjoyed drawing people, and it helped grease the wheels of communication when traveling. Historically, he’s found inspiration in magazines, but has frequently drawn from life.

He intends to draw each of his grandchildren soon. It’s RES GESTAE | AUGUST 2013

25

difficult to find the time, especially when many of the works take some 20 hours to complete. Additionally, Liles is experiencing vision problems, making it harder to capture all the details.

The rewards are still compelling: “Watching an image emerge from a blank piece of paper and having someone recognize it.”

And it’s truly art for its own sake. “I have never charged for a drawing and have given away hundreds over the past 40 years.”

His advice to people who want to learn to draw is, “Do not let your ego get in the way. There are people who can teach you a skill. While you may be comfortable doing it your ‘own’ way, open your mind to other ways as well. I am confident that my failure to heed this advice kept me from improving.”

Some habits are worth keeping, however. “Of some interest to some may be that I always start drawing the pupil of the person’s right eye and work from the inside of the face outward.”

Along with his grandchildren, Liles is endlessly inspired by the work of Norman Rockwell. “His art amazes me because he captured special looks and moments better than almost anyone.”

A storied assemblage

of any situation and determining what is the best approach for my client, because, like I said before, I like to take things apart and put them back together differently. There is a major correlation there.”

She said art has always been a part of her life, but she went through a dry spell, after receiving some advice about putting it aside so she could focus on her future. “I finally gave up on that mindset and went back to painting. Now I don’t worry so much about what I can do with it, I appreciate how much it does for me.”

Many people support Owen in her artwork. “My husband, first and foremost, because he lives with all the mess every day and always asks for new pieces to hang in the house.”

Her advice to novices? “Just start. A piece of paper and a pen, a cheap paint brush, some acrylics and a yogurt cup. You will always be your own worst critic, so worrying about not being good enough is never an excuse. Your perspective to create will always be different anyone else’s, and people will appreciate it from the simple respect that it is yours.”

Hummingbirds and happenstance

Civil appeals attorney Gerald W. Pierce was in north Georgia photographing hummingbirds at the time of the show’s opening, but that’s just what he does with his medium. “The escape is what keeps me interested,” he said.

His pieces in the show were familiar to many long-time readers of Res Gestae, as they were photos taken for the cover – an art form all its own. “When doing covers, you have to be careful to allow for the text which will be added.”

He said the combination of artistry and technical expertise is prerequisite: “You can’t be a photographer without both.”

Pierce started with a black and white darkroom in college.

“Each image was labor intensive, and the ability to affect the images themselves was minimal.”

“I like taking things apart and putting them back together differently—it’s the engineer in me,” explained Katharyn E. Owen. She specializes in assemblage art, which entails repurposing found objects and incorporating traditional mediums like painting. One piece from the show was composed of an antique bed she found in Arcadia, and one of the artist’s own watercolor paintings she reworked to incorporate other assemblage elements. “I usually start from a ‘found object’ that catches my eye, like these bed parts, picture frames, etc. I like to have stories associated with each assemblage, not just about how I put it together, but about where it came from.”

Making art directly informs Owen’s approach as an intellectual property attorney (she also works in business, Internet and commercial law, along with real estate). “It helps me appreciate all the hard work that goes into the ideas, inventions, products and services that people ask me to help them protect,” she explained. “It also allows me to be somewhat more objective in reviewing a series of facts, clauses, or aspects

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His first images for the LCBA publication were also film he processed. “Now, digital photography seems almost magical by comparison. I have stayed true to my film and darkroom background, and essentially use digital imagery just like the old technology. I am not a fan of digital manipulation, and I try to stay as true to the original image as I can.”

He acknowledged it’s a challenge to keep up with technology.

But it’s worth it. “The reward is the occasional happenstance where it all comes together, and I see a beautiful image emerging from the printer. I can create something beautiful that would

not exist without my efforts.”

His words of advice to a beginning photographer? “I would advise to avoid letting technology take over the artistry. I would also advise making sure that you really know how to operate your printer. I often see digital images on display, and it is easy to see that the presenter did not know how to fine tune the printer. A gorgeous image can be ruined by poor printing technique.”

The story circle

Commercial litigator Robert D. Young has been involved in photography and woodworking for many years, and the show featured a unique pairing of the two mediums. He transfers photos from his travels onto pieces of wood, resulting in muted colors and rich textures that achieve a timeless quality. He enjoys that his work allows him to share the stories about his adventures. “Hopefully, the pictures speak to the viewer and draws them into the story circle.”

Aside from the beauty, the artwork represents healing for Young and his family. “When my wife was battling cancer I turned more to those passions to escape from the feelings of brokenness and helplessness that are a part of that battle. Now that she is in full recovery, we can enjoy the photos together and look forward to the next place to visit.”

Over the years, Young is finding his art becomes “more involved and layered, and is more personal to me.” Additionally, it changes how he sees the world. “I find that I am constantly looking at things with a specific eye as to how I can incorporate them into a different art form.”

He finds plenty of encouragement for his art from his family, and is inspired by the works of Gordon Parks, Jonathan Green and Clyde Butcher. His advice to beginning artists: “Enjoy the journey.”

A new narrative

Patricia H. Zalisko is a retired attorney, now living out of state, and paints and draws. She grew up in New York City, which suffers no shortage of experiences with art. She was encouraged to pursue art, but not as a career. As a practicing attorney, there was no time for art-making. After retiring in

2004 and moving to central eastern Florida, Zalisko availed herself of the many educational opportunities at the Atlantic Center for the Arts.

“I soon returned to painting and drawing, studying with many instructors who like me relocated to the south after they had pursued professional art careers,” she recalled. “Two noteworthy and published art coaches– Steven Aimone and Harold Garde – who only fueled my desire to pursue my process, also mentored me.”

She likes to work mostly with water-based media, “working quickly with both hands and many implements, and abstractly.

My impatience for drying times led me to water-based media and drawing tools of all kinds.”

Zalisko identifies a narrative quality in all her work, which predisposes it to being titled around significant dates or events.

One such piece, Holodomor I-1932, is based on her research into the relatively unknown Ukrainian Holocaust. “The series on Holodomor, which transliterated means ‘Death by starvation,’ incorporates some of the substances that its victims were compelled to eat in order to survive. I thus created archival mediums from things like fungus, leather, bark, leaves, dirt, etc. and used these in addition to conventional materials to create the art in this series.”

Speaking of narrative, new artists would do well to check their own at the door. “They just need to silence that nagging little voice in their heads that tells them that they ‘can’t draw a stick figure’ or produce a satisfying work of art. Give me just 45 minutes in a studio and I’ll prove it to you.”

As to Zalisko’s own motivation, “I create art simply because there is no other way to express myself.”

The German poet, philosopher, historian and playwright Friedrich Schiller said, “Aesthetic matters are fundamental for the harmonious development of both society and the individual.” The fine contributions from our artist attorneys and their warm reception by the community would seem to confirm the LCBA is doing its part to further that development.

Thanks to the artists, The Sidney and Berne Davis Art Center and our sponsors: CopyLady, Merit Court Reporting and Encore Bank. |RG| RES GESTAE | AUGUST 2013

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legal and proFessional MalpraCTiCe

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RES GESTAE | AUGUST 2013

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. Fort Myers City Attorney’s Office Fowler White Boggs, P.A. Freidin • Dobrinsky Fried & Fried, P.A. Garvin Law Firm Geraghty, Dougherty, Edwards, P.A. Goldberg, Racila, D’Alessandro & Noone, LLC Goldstein, Buckley, Cechman, Rice & Purtz, P.A. Green, Schoenfeld & Kyle, LLP Grossman Law & Conflict Management Hahn Loeser & Parks LLP Henderson, Franklin, Starnes & Holt, 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, Hersch, Kinsey & Hill, P.A. 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.

Deadline looms to dispute proposed property taxes

by Michael S. Hagen

Once again, the opportunity to challenge Florida property tax assessments is upon us. This annual process begins in late August when Florida’s county property appraisers mail TRIM Notices (Notice of Proposed Property Taxes) to the owners of every real estate parcel and tangible property account, providing the market and taxable values for each parcel.

The TRIM mailing date triggers a 25-day window for owners to file Value Adjustment Board (VAB) petitions to contest those values. The filing deadline varies from county to county, but usually falls in the first or second week of September each year.

Timely filing preserves the right to either informally settle assessments with property appraiser staff or to obtain a formal valuation hearing with a hearing officer. The appeals process can result in significant tax savings for owners disputing their assessed value.

Appeal Prep

The VAB petitioning hearing process is usually a fair venue for owners to dispute tax evaluations. In order to prevail, however, the key is advance preparation. Here are three tips: •Schedule an informal conference with property appraiser staff.

Once the TRIM Notices are mailed, property appraiser personnel get quite busy. While post-TRIM Notices meetings can be productive, they are often brief due to the property appraiser’s increased workload. That’s why I prefer meeting with property appraiser personnel before TRIM Notices are mailed.

That way, office personnel can spend more time considering the owner’s documentation supporting a reduction. (Note: 2013 values were available as early as the July 1, 2013 tax roll certification date, but can only be obtained prior to TRIM mailing by calling the appraiser: they are unlikely to be on his website until late August.)

•Get acquainted with the appeal process or get expert assistance.

While rule changes over the last 15 years have leveled the playing field between property appraisers and property owners, the process has also become much more complicated, more deadline-driven and more high-tech. Much of the VAB petition submission and evidence exchange process now is web-based via LeeClerk.org, which is productive and efficient.

But in some of the larger cases, VAB hearings have begun to

resemble mini trials, making the need for experienced property tax representation almost essential.

•Be aware that results may vary among hearing officers.

While one would expect a petition result to be the same no matter which Special Magistrate hears the appeal, that’s not always the case. In reality, results, unfortunately, vary considerably, according to which hearing officer presides over a case. That’s why, whenever possible, owners should endeavor to resolve their cases informally with the property appraiser’s office, prior to a hearing.

2013 VAB Outlook

This year, I anticipate that the total number of VAB petitions filed will approximate 2012’s reduced levels, with both residential and commercial appeals remaining flat. Also, while preliminary 2013 tax roll estimates for Lee and Collier counties indicate an overall 2% increase in taxable value, this increase varies widely by area and property strata.

Finally, I predict the battle will continue between commercial property owners who rightfully see REO and short sales as reflective of the market value and property appraisers who often disqualify such transactions by relying on a reading of Dept. of Revenue rules. These disparate approaches cause huge differences in assessed values.

Based on my 20 years of work in the VAB process, I’ve found that it generally works well for owners who challenge excessive tax valuations, thereby keeping local Property Appraisers accountable and ensuring that property owners keep more of what is rightfully theirs. |RG| Michael S. Hagen is a Fort Myers-based property tax/real estate attorney with Hagen Law Firm and owner of TaxCuts 1, Inc., a property tax valuation consulting and appeals firm. He was formerly the attorney for the Lee County Property Appraiser for ten years and for the last ten years has represented property owners across Southwest Florida in valuation and agricultural exemption appeals. For more information, please call (239) 2750808, e-mail Mike@MikeHagen.com or visit TaxCuts1.com and MikeHagen.com.

RES GESTAE | AUGUST 2013

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Social Scene

Third Thursday Social

Christina Harris-Schwinn and Nanci Dubois Darlene Grossman and Debra Newell

Andy Sheppard and Ted Tripp

Kristianna Rodriguez, Janese Caruthers and Guichard St. Surin

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RES GESTAE | AUGUST 2013

Jeanne Seewald, Andy Krause and Suzanne Specht

Kim Hall and Julie Koenig-Hill

Social Scene

at Hahn Loeser Henry Paul, Mike Corso and Tom Smanik

Carrie Lademan, Amanda Bartley, Shannon Puopolo and Barbara Cossu

Rich Rossi and John Heck

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On the Bench Hon. Sheri Polster Chappell August 9 marked the occasion of the investiture of the Honorable Sheri Polster Chappell as United States District Judge for the Middle District of Florida. She’s been serving on that bench since May, but the event was a “nice opportunity to celebrate the completion of the process, then move on and get the job done.”

What a process it’s been, encompassing 329 days from her initial nomination by President Obama in 2012 to her unanimous confirmation in May. For all the legislative and procedural gesticulations that have transpired, it hasn’t been that much of a transition. The judge served as U.S. Magistrate Court Judge since 2003, and said, “I’m still looking at a lot of the same cases.”

She’s happy to continue serving the same people. “I went into this position hoping I’d be able to stay in Fort Myers. We’ve had a number of judges who have come and left for other parts of the Middle District,” she explained, which serves no fewer than 35 counties from eight courthouses. Naturally, the district has one of the highest case loads in the country. The judge wants people to know, however, “We will consider each of their cases in turn, and understand their cases are the most important thing going on in their lives.”

As far back as she can remember, she’s wanted to be in the law profession. “I can remember being in student government and attending a court session when I was in seventh grade. I just enjoyed the process of being in the courtroom, to see how it works and how justice was carried out.”

She had no family members who were attorneys, but she did have strong role models. “I credit my parents for their hard work and dedication.”

When not on the bench, Judge Chappell is often busy with her sons at their sporting events. “I love being a mom,” she said. “Whatever is important to them is important to me.”

As to the sometimes arduous confirmation process, the judge said it’s quite a good process. “I think individuals should be thoroughly vetted. They are in a position of trust,” she said. It is a lifetime appointment, after all. The swiftness of the vote, however, exerts an effect across the entire judicial system. |RG|

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From the Bar Ron Buschbom, Esq. Last winter, Ron Buschbom entered the ranks of the nominally retired. “I really enjoy the legal profession and it’s difficult to stop after 35 years.” So he opened Buschbom Mediations.

It’s a bit of a change of pace. As a litigator, Buschbom’s mission was always to resolve disputes.

“You end problems between people, and that’s what I’ve been doing for 35 years.” There was always a winner and a loser. “Litigation is like a football game, except you don’t hit each other.” Usually.

Buschbom has seen it happen. Working in the alternative dispute resolution field, he’s able to help both parties put the past behind them while retaining as much dignity as possible.

Buschbom’s daughter will start law school in August. He himself got into the field through a more circuitous route. “I did estate and business planning,” he said. “Attorneys were always interfering with my proposals. They told me I wasn’t an attorney and that irritated me.”

To his daughter he says, “There’s always room for another good attorney,” while acknowledging it takes a bigger effort. Nowadays, there are more attorneys in general. “That causes there to be more good attorneys and more bad attorneys.” Buschbom is all too happy to help attorneys improve. “If anybody has a question about litigation, I’m always available to answer a phone call.”

Having been in the business for a long time, he has observed changes mostly for the better. “In a legal sense, there’s more info available because of the Internet. The research is better, the attorneys for the most part are better prepared.”

He also has seen improving professionalism among lawyers. “I think the Bar has done a lot to address problems,” he said. Additionally, women and minorities are increasingly claiming their rightful place alongside their counterparts. He sees the diversity as an asset. “It brings another viewpoint into the practice.”

Buschbom is also quite the event planner. At press time he was helping to organize a fishing trip in the Dominican Republic for the Florida Fun Fishers and involved in a reunion with the guys from his 1964 Cotton Bowl football team for the United State Naval Academy in Annapolis. He is also chairman of the 2014 Quantico Marine Athletes Reunion, which will be at the Naples Waldorf Astoria. |RG|

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Legal Briefs Freeman receives numerous accolades Attorney Yale Freeman of Naples- and Miami-based Yale T. Freeman, P.A., has been named a Top Attorney in Florida, as published in The Wall Street Journal and Miami Magazine. This honor is based on peer recognition and professional achievement.

He was also recently named a 2013 Super Lawyer in the Criminal Defense: White Collar practice area. Super Lawyers is a rating service that recognizes attorneys who have distinguished themselves in their legal practice. This honor is limited to only five percent of the attorneys in each state.

Yale T. Freeman, P.A. represents individuals and companies faced with allegations of criminal impropriety, and facilitates internal investigations on behalf of victims of fraud.

Representative Fitzenhagen named a Toll Fellow Florida State Representative Heather Fitzenhagen, a partner at the law firm Goede, Adamczyk & DeBoest, PLLC, was recently named a Council of State Governments’ (CSG) Henry Toll Fellow. She is the only state legislator in Florida to have received this award. Thirty four other state legislators also received Toll Fellowships.

“Individually, these leaders have a proven track record of accomplishing great things; collectively they represent the future leadership of the states, ” said David Adkins, executive director and CEO of the CSG. Fitzenhagen said she was looking forward to working with state legislators and members of the executive and judiciary branches of other states when Toll Fellows meet in August.

“I think it is imperative to understand each branch’s view of their domain and why we should or should not alter the balance currently in place, ” she said. ”As a Toll Fellow I would actively engage members of the remaining branches of government to explore this issue. I believe as public servants we should strive to understand, scrutinize and enhance the function of our government.”

“We are extremely proud of our law partner, Heather Fitzenhagen, and her continued success and recognition while serving in office,” said Managing Partner John C. Goede. “Our law firm and clients support Heather in all she does to represent District 78 in Tallahassee.”

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Legal Briefs Cape Coral Bar Association announces meetings At its June meeting, the Hon. Thomas Corbin presented on Trying a Family Law case. Pictured from left to right are: Dustin Butler, Eviana Martin, Katharyn Owen, Hon. Thomas Corbin, Mary Evans, Liridona Sinani.

The Cape Coral Bar Association holds its meetings every third Tuesday of the month at 11:45 a.m. at Fletchers Grille & Spirits, 627 Cape Coral Parkway West in Cape Coral. This month’s meeting will be August 20, with the Hon. William McIver as guest speaker. For more information, visit www.capecoralbar. org or call (239) 542-1131.

Eight Cummings & Lockwood attorneys named Super Lawyers Eight Cummings & Lockwood LLC attorneys in Florida were selected for inclusion in the Thomson Reuters Super Lawyers list this year. 2013 Florida Super Lawyers in the Bonita Springs office were Marve Ann Alaimo, William N. Horowitz and Howard M. Hujsa. 2013 Florida Super Lawyers in the Naples office were Todd L. Bradley, Alison K. Douglas, Kenneth D. Krier, and Deborah L. Russell. Additionally, Robert L. Lancaster in the Naples office was selected as a 2013 Florida Rising Star. All attorneys are partners at C&L in the Estate Planning and Probate practice.

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Legal Briefs McCabe achieves AV Preeminent rating The law firm of Henderson, Franklin, Starnes & Holt, P.A. announced Attorney Michael McCabe achieved an AV Preeminent rating by Martindale-Hubbell. According to the Martindale rating methodology, the AV Preeminent rating is “a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.” Lawyers are rated on their legal knowledge, analytical capabilities, judgment, communication ability and legal experience.

McCabe represents insurance carriers, third party administrators, and employers in the defense of workers’ compensation claims. He also concentrates his practice representing businesses, contractors and individuals who have received Stop Work Orders and Penalty Assessments from the Department of Financial Services, Division of Workers’ Compensation’s Bureau of Compliance.

Prior to becoming an attorney, McCabe graduated from the Defense Language Institute in Monterey, California, and served as a Russian Linguist for the United States Navy. He is a veteran of Desert Storm/Desert Shield and is a recipient of the Naval Achievement Medal.

Pavese partners named Super Lawyers Pavese Law Firm partners Diane L. Jensen and Christopher J. Shields and of counsel Peter J. Gravina have been named to the Florida Super Lawyers list as some of the top attorneys in Florida for 2013. No more than five percent of the attorneys in Florida are selected to the list.

In addition, Brooke N. Martinez has been named to the 2013 Rising Stars list as one of the top up-and-coming attorneys in the state. Each year, no more than 2.5 percent of lawyers in the state receive this honor.

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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.

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Legal Briefs Hersch named a Florida Super Lawyer Attorney Craig R. Hersch, a partner in the law firm of Sheppard, Brett, Stewart, Hersch, Kinsey & Hill, P.A., was selected for the 2013 Florida Super Lawyers listing for the fifth consecutive year in the areas of Estate Planning and Probate, as well as Tax. He is a Florida Bar Board Certified attorney in Wills, Trusts, and Estates and is a licensed Florida CPA.

Cohen & Grigsby attorneys named Super Lawyers The business law firm Cohen & Grigsby announced two of its Naples-based attorneys have been included on the 2013 list of Florida Super Lawyers, which was published in the June 2013 issue of Florida Super Lawyers magazine. The honorees are Thad D. Kirkpatrick, a partner in the firm’s Real Estate practice group, and Kelley Geraghty Price, a partner in the firm and member of the Litigation practice group.

Roetzel attorneys named to Super Lawyers lists Roetzel announced three of its Fort Myers attorneys have been named Florida Super Lawyers and four have been named Florida Rising Stars. The 2013 list will be published in Florida Super Lawyers magazine and will also appear in the Florida distribution of The Wall Street Journal.

Super Lawyers: Kenneth A. Jones, Denise L. Wheeler and Michael S. Yashko.

Rising Stars: Kimberly Davis Bocelli, Paul A. Giordano, Jaime A. Maurer and Lori L. Moore.

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Legal Briefs Zinn achieves AV Preeminent Rating Attorney Brian D. Zinn of ZinnLaw achieved an AV Preeminent rating by Martindale-Hubbell.

The AV Preeminent rating is the highest a lawyer can achieve and is based on legal knowledge, analytical capabilities, judgment, communication ability and legal experience.

Zinn holds an undergraduate degree from the University of Pennsylvania and a juris doctor degree from Boston University School of Law. He is a former president of the Southwest Florida Bankruptcy Professionals Association, routinely handles matters in bankruptcy and commercial litigation, and is a frequent speaker on those subjects. He has also achieved a “Superb” 10.0 out of 10.0 rating on Avvo.com.

Public Defender again wins productivity awards For the third year in a row, The Law Office of Kathy Smith, Public Defender for the 20th Judicial Circuit, is a recipient of the prestigious Prudential-Davis Productivity Awards. Through Smith’s leadership and direction, her office was the recipient of two out of the 468 awards provided across the entire state of Florida. The office was recognized for innovations and productivity improvements resulting in significant cost savings, cost avoidance and increased revenue for state government within the agency.

The Prudential-Davis Productivity Awards program is a major government improvement initiative founded and sponsored

by Florida Tax Watch, and co-sponsored by The Florida Council of 100 and the state of Florida. Governor Rick Scott designated June as the Prudential-Davis Productivity Awards Month, to recognize and reward state employees who implement cost-savings programs designed to improve efficiencies in government. The Law Office of Kathy Smith, Public Defender of 20th Judicial Circuit, proudly received its awards in Tampa on June 20, 2013.

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Catching Pro Bono Up Spotlight With...

The Young Lawyers Division of the Lee County Bar has been very active throughout the last six months. In January, YLD President John Miller and Vice President Shannon Puopolo attended the Young Lawyer Division Affiliate Outreach Conference in Daytona Beach. At the conference, Miller and Poupolo presented an application for a grant for a local non-profit organization called Childcare of Southwest Florida. The purpose of the grant was to raise money for technology for early childhood education centers through Lee and Hendry Counties. The grant application was successful, and the YLD was able to present a generous check to Childcare of Southwest Florida.

The YLD was also instrumental in assisting with the annual Voices for Kids charity golf tournament, which took place on May 18. Members of the YLD solicited local businesses and individuals for both monetary and in kind donations for the tournament. The YLD was also responsible for gathering a large number of the silent auction items that were used to raise money for Voices for Kids.

The tournament was a huge success and Voices for Kids was able to raise a significant amount of money for its organization.

Most recently, the YLD had a joint social with the Lee County Young Professionals. This social was at Bahama Breeze in Fort Myers and had nearly 100 attendees.

Going forward, the YLD plans to continue its involvement with both charitable organizations and to provide additional networking opportunities for its members. Anyone interested in joining the Young Lawyers Division should contact its president, John Miller, at john.miller@henlaw.comfor more information. |RG|

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Calendar of Events

AUGUST 2013 2 9

Young Lawyers Division Lunch Meeting French Connection at Noon

Membership Committee Meeting

12 p.m. Henderson Franklin in conference room 1

RPPTL Practice Section Lunch Noon

13

Executive Council’s Strategic Planning Retreat

SEPtember 2013 2 5 6 13

3-7 p.m. Henderson Franklin in conference room 1

15

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

23

CLE “Expert Witness Seminar: The Daubert Statute”

8 a.m. Registration & Continental Breakfast; 8:30 – 11:30 Program. $30 Members - $35 Non-members, $5 discount if attending luncheon following seminar. Location - Sidney & Berne Davis Art Center, downtown Fort Myers

Membership Luncheon Meeting

1620 19

30

Pre-Labor Day BBQ

3-7 p.m at the Law Offices of Kim Patrick Hart and Donnelly &Gross , P.A. at 2205 McGregor Blvd

Courthouse & LCBA office closed

Young Lawyers Division Lunch Meeting French Connection at Noon

Membership Committee Meeting

12 p.m. Henderson Franklin in conference room 1

Constitution Week Speakers in the Schools

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

20

FREE CLE with acceptance of 1 pro bono case in the next two years: “GUARDIANSHIP TRAINING FOR ATTORNEYS”

at The Edison Restaurant, 8 a.m. Registration & Continental Breakfast, 8:30 – 11:30 Program with Sharon Langer, Dade County Legal Aid

5:15 p.m. at Mary Evans’ office

Henderson Franklin conference room 1

ROSH HASHANAH

Noon

Executive Council Meeting Land Use & Governmental Law Practice Section Lunch Meeting

Courthouse & LCBA office closed

RPPTL Practice Section Lunch

11:45 at Sidney & Berne Davis Art Center.

“Legislative Update” Guest Speaker: Heather Fitzenhagen Sponsors: CopyLady; Conric PR & Marketing; Law Office of Kelly L. Fayer; Goede Adamczyk & DeBoest; iBERIABANK

28 29

LABOR DAY

Membership Luncheon Meeting

“The Constitution” 11:45, at The Edison Restaurant, Sponsors: iBERIABANK

26

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

Visit us online at leebar.org to see the entire LCBA Annual Calendar and conveniently RSVP for upcoming events.

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, 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

44

RES GESTAE | AUGUST 2013

B&HbbqAdBarNewsFPage07-13Mech_Layout 1 7/12/13 10:34 AM Page 1

Kick Start your Labor Day Weekend!

Join Jim Brantley of Donnelly & Gross and Kim Hart of the Law Office of Kim Patrick Hart for a

Pre-Labor Day BBQ FOOD. DRINKS. MUSIC .

Special appearance of “In Recess”~ A band featuring Joe Fuller - lead guitar, Kim Hart - bass and vocals, Mike Maxwell - guitar and vocals, Roger Brown - drums and vocals.

Friday, August 30 ~ 3-7 P.M 2205 McGregor Blvd. • Fort Myers, FL 33901

RSVP to Sandy@KimHartLaw.com RES GESTAE | AUGUST 2013

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