Res Gestae - December 2020

HOW JUDGES ARE SELECTED Understanding the process

Why won't the fax die?

THE OFFICIAL AWARD-WINNING PUBLICATION OF THE LEE COUNTY BAR ASSOCIATION • DEC 2020

contents on the cover

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ad directory

How is a judge selected Understanding the process Keith Grossman, Esq.

Cover: Art composition by April Bordeaux. Amy Coney Barrett image provided

by Rachel Malehorn/commons.wikimedia.org

special feature

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Why won't the fax die?

Keith Grossman, Esq.

20

departments 6 Letter from the President

Matt Roepstorff, Esq.

8 Letter from the Executive Director

Lauren Baugh

26 Guest Attorney Column

Jury trials resuming in Lee County Ty Roland, Esq.

30 The Dish

The Wine Room & Grazing Haus Lauren Baugh

10 Calendar of Events

32 100 Club

12 Ethically Speaking

34 5 Things You Don't Know

Henry Lee Paul, Esq.

14 Practice Section

Tort Litigation

Dawn Maselli, Esq.

16 YLD Spotlight

Tiffany Pereira, Esq.

24 Legal Lens

About Me

Taylor Lewis (Hon. Devin George's JA)

36 5 Things You Don't Know

About Me

Melissa Barris, Esq.

38 In The News

Flashback to 2019

It is the policy of the Lee County Bar Association to hold meetings only in those facilities that do not discriminate on the basis of race, gender, sexual orientation, national origin, physical or mental disability, or religion. The Association will engage in a good-faith interactive process with any employee, prospective employee, member or invitee to determine if a reasonable accommodation is needed and will make reasonable efforts to provide such accommodations.

Any requests for accommodation should be directed to the executive director of the Lee County Bar Association, Lauren Baugh at lbaugh@leebar.org or 239-334-0047.

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Aloia, Roland, Lubell & Morgan, PLLC 9 Bounds Law Group 11 Boy, Agnew, Potanovic 23 Business Observer 13 Calvo & Calvo Attorneys at Law 15 CONRIC PR & Marketing 17 CopyLady IFC Dal Lago Law 35 DeMine Immigration Law Firm 29 Denise Kennedy 35 Direct Impressions 37 Donna Tisch 23 Edison National Bank BC Frank Piazza, P.A. 37 Henderson, Franklin, Starnes & Holt, P.A. 34 Hurtado Immigration Law Firm IBC Law Firm of Scott T. Moorey 28 Law Offices of Dennis L. Webb 19 Law Offices of Dennis L. Webb,Justin Hales, Esq. 15 Leonard P. Reina 27 Livingston Law 35 Mark B. Yeslow 11 Markham Norton Mosteller Wright & Company PA 17 McHale, P.A. 29 McHale Properties Co. 37 Men's Rights Law Firm 36 Morgan & Morgan 7 Musca Law Office, Inc. 3 REAS, Real Estate Advisory Services, LLC 15 Roetzel & Andress 33 Roetzel & Andress 29 Sexto Productions 33 Sheldon E. Finman, P.A. 13 Simon Harrison 13 Spivey Law Firm Personal Injury Attorneys, P.A. 5 Sproat Workplace Investigations 32 Stockman Mediation 27 The North Law Firm, P.A. 27

RES GESTAE

LeeBar.org

president's letter

Despite the seemingly endless stream of adverse events, negative headlines, and ongoing challenges, it's surreal to recognize 2020 is drawing to a close. We have plenty to reflect upon and celebrate, however. Our accomplishments and proud moments could fill pages. I will highlight some of LCBA’s greatest 2020 successes.

We launched two new practice sections – Immigration Law and Intellectual Property Law. While many Bar Associations reduced their offerings, our practitioners saw a demand for more information, education, and ideas. The new practice section chairs took incredible initiative to jump start these groups during an uncertain year. Thanks to Nirupta Netram and Indera Demine, Immigration Law co-chairs, and Luca Hickman and Mark Nieds, Intellectual Property Law co-chairs, the LCBA offers new opportunities.

LEE COUNTY BAR ASSOCIATION administration

Executive Director - Lauren Baugh Administrative Assistant - Mairelis Tamayo

executive council

TREASURER

Tiffany Pereira, Esq.

BOARD MEMBERS

Michael-Anthony Pica, Esq. John Miller, Esq.

committee chairs BENCH-BAR GALA

LAW RELATED EDUCATION

Danielle Butler, Esq.

T. Rankin Terry, Esq.

DIVERSITY AND INCLUSION

LAW WEEK

Ita Neymotin, Esq. and Kelly L. Fayer, Esq.

Hon. John S. Carlin

HEALTH AND WELLNESS

LCBA FOUNDATION CHARITY GOLF TOURNAMENT

John Miller, Esq. and Joel Hyatt, Esq.

Shannon Puopolo, Esq. and Kenneth A. Jones, Esq.

HISTORY

MOCK TRIAL

Jenna Persons, Esq. and E. Bruce Strayhorn, Esq.

Shaina Zuppke, Esq. and Eunice Gedeon, Esq. PRO BONO

Shanthy Balachanthiran, Esq.

practice section chairs ALTERNATIVE DISPUTE RESOLUTION

Anne Dalton, Esq. and Bill Merchant, Esq. APPELLATE LAW

Using our platform for leadership and connectivity, our Diversity and Inclusion Committee hosted several virtual events calling together community leaders and patrons to discuss and understand differing perspectives. Attendees included attorneys, judges, law enforcement, Florida Bar officials, university academics, and non-profit organizations.

Alex Brockmeyer, Esq. and Matthew Irwin, Esq.

INTELLECTUAL PROPERTY LAW

Luca Hickman, Esq. and Mark Nieds, Esq. LAND USE AND GOVERNMENTAL LAW

Leah Harwood, Esq. and Kathleen Fitzgeorge, Esq.

Erica Woods, Esq. and Sarah Spector, Esq.

ELDER LAW

REAL PROPERTY, PROBATE AND TRUST LAW

FAMILY LAW

Christina Holly, Esq. and Mellany Marquez-Kelly, Esq. GENERAL CIVIL AND BUSINESS LITIGATION

George Knott, Esq. and Carlos Kelly, Esq.

LeeBar.org

IMMIGRATION LAW

Indera DeMine, Esq. and Nirupa Netram, Esq.

CRIMINAL LAW

Blake Hampton, Esq. and Amy McGarry, Esq.

Matt Roepstorff, Esq. matt.roepstorff@gray-robinson.com | 239.340.7936 RES GESTAE

VICE PRESIDENT

Blake Hampton, Esq.

Spencer Cordell, Esq. Peter Knize, Esq.

Lastly, the LCBA engaged with the community as a whole and provided a crucial platform for discussions on social justice issues and equality under the law. Our community needed events bringing people together for a civil and open discussion and understanding of the social discord happening around us. Proudly, the LCBA provided a forum for those discussions.

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SECRETARY

Kathy Smith, Esq.

YLD President - Tiffany Pereira, Esq. President Emeritus - John Webb, Esq.

Our programming and events surpassed all expectations. Despite not gathering in-person since March, our Executive Director and staff resolved not to cancel programming. Instead, our team quickly shifted our programming, including practice section and committee events, to a virtual platform. We even hosted distinguished guests, such as Florida Bar President Dori FosterMorales, for our annual Pro Bono Awards. While we hope to meet in-person in 2021, we comfortably know there will be no drop-off in programming.

As this is my last President’s Letter, let me simply say: Thank you. To all our members, sponsors, affiliates, friends, and supporters, your unwavering commitment and contributions to the LCBA extend further than you realize and are appreciated more than I can express. This has been a year to remember, and I won’t soon forget all of you who helped make it an undeniable success.

PRESIDENT

Matt Roepstorff, Esq.

Kenneth Kemp, Esq., Jennifer Hammond, Esq. and Peter Knize, J.D., L.L.M. SOLO & SMALL FIRM

Conor Foley, Esq. TORT LITIGATION

Dawn Maselli, Esq.

executive director's letter What a year! There has been good, bad, and everything in between!

The official award-winning publication of the Lee County Bar Association, which serves citizens and the legal community since 1949.

This year taught us all many things about ourselves, our jobs, our lives, and really, so much more. It is refreshing to know this year is almost over, and we can start a new year knowing most of us have our health and have maintained our sanity during a difficult and trying time.

239.334.0047 resgestae@leebar.org

staff PUBLISHER

Connie Ramos-Williams | 239.690.9840 Ext. 1001

EDITOR-IN-LAW

Tiffany Pereira, Esq.

Being flexible has been important during, what will always be referred to as, “the COVID era” – probably even more flexible than we thought we could be.

MANAGING EDITOR Keith Grossman, Esq.

CREATIVE DIRECTOR April Bordeaux

As a voluntary Bar, we must be creative in every aspect to keep with the times. I learned some creative ways to represent the Bar in our community and to make sure our members continue to be educated. And to make sure our sponsors stay in the spotlight!

ADVERTISING DIRECTOR

Linda Fiore | 239.690.9840 Ext. 1006

FEATURE WRITER

Keith Grossman, Esq.

CONTRIBUTING WRITERS

While we were not able to hold in-person events for what seems like an entire year, we held a record number of virtual CLEs. We are even finishing this year with more amazing CLE opportunities. We are excited to try to top them next year.

Matt Roepstorff, Esq. Lauren Baugh Henry Lee Paul, Esq. Dawn Maselli, Esq. Tiffany Pereira, Esq. Ty Roland, Esq. Lauren Baugh Taylor Lewis Melissa Barris, Esq.

We are looking forward to our YLD Holiday Fiesta at Coastal Dayz Brewery on December 4th from 5:30 pm -7:30 pm. To give back this holiday season, we are collecting new unwrapped toys for the children at the ACT shelters. This event is free for all LCBA Members/Sponsors and $15 for Non-LCBA Members. We will have food from Tijuana Flats, raffle prizes, and free t-shirts for the first 30 people registered and in attendance!

CONTRIBUTING PHOTOGRAPHER Jim Jett Photography

BILLING INQUIRIES

We are also excited to host our Annual Holiday Party at The Edison on December 10th from 5:30 pm - 8:30 pm. This event is free for LCBA Members/Sponsors. We will have great food, drinks, and live entertainment. We will also recognize our Annual Sponsors.

239.334.0047

While the year has not been what we wanted, we have made the best of it. I am so grateful to our membership for continuing to be active in our Bar, and I am beyond thankful for such an amazing Board. They work closely with me to ensure we provide the best to you, our membership.

Shout out to our 2020 Board for making sure this year kept going no matter what the world was dealing with. Your dedication to LCBA is remarkable.

Res Gestae is an award-winning magazine published monthly by CONRIC pr + marketing in partnership with the 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 we 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 pr + marketing.

Copyright©2020 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 from the Lee County Bar Association. To inquire about such permission, please contact the Lee County Bar Association at info@LeeBar.org.

2020, I bid you adieu. 2021, here we come! Happy Holidays and see you all soon!

Lauren Baugh, Executive Director LBaugh@leebar.org | 239.334.0047 Ext. 102

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RES GESTAE

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Our Dedicated Service Defines Us.

Our personal injury team advocates for the most vulnerable -- individuals who have suffered serious injuries or death. We’re deeply committed to protecting our youth, supporting families and building a safer community for all who call Southwest Florida home.

Ty Roland is the 2020 Trial Attorney of the Year

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RES GESTAE

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calendar of events Dates of some practice section meetings have not been confirmed.

Check LeeBar.org for details!

December

3

LCBA Tort Litigation Virtual CLE

Noon - 1 p.m.

Speaker: Stephen Smith, Esq. Topic: Jury Trials in a New Age

4

YLD Holiday Fiesta

Noon - 1 p.m.

Speaker: Herb Fried, Esq. Topic: Mediation as Hostage Negotiation

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Christmas Eve

LCBA Office and Courts closed

5:30 - 7:30 p.m.

Coastal Dayz Brewery, 2161 McGregor Blvd., Unit E, Fort Myers. Free t-shirts, tacos from Tijuana Flats and beer! Free to members/sponsors

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10

LCBA ADR Virtual CLE

LCBA Member Holiday Party

5:30 - 8:30 p.m.

Edison Restaurant , Bar & Banquet Center, 3583 McGregor Blvd, Fort Myers.

FREE to members/sponsors

25

Christmas Day

LCBA Office and Courts closed

31

New Year's Eve

LCBA Office and Courts closed

Wishing you a joyous holiday season and a new year filled with peace and prosperity! ~ LCBA Executive Council & the Res Gestae Publishing Team

Visit us online at LeeBar.org to see more calendar items and RSVP for upcoming events.

Would you like to submit an event? Email your event submission to ResGestae@LeeBar.org.

Thank You to Our 2020 Annual Sponsors

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RES GESTAE

LeeBar.org

MARK B. YESLOW Mediations/Arbitrations 30 Years of Experience All Personal Injury Claims/Property Claims/Insurance Coverage Issues www.yklegal.com

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RES GESTAE

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ethically speaking

ABA examines conflict with opposing counsel beyond blood or marriage by henry lee paul, esq.

I

n Formal Opinion 494, the ABA now provides guidance for lawyers’ relationships beyond ties of blood or marriage. The ABA identifies three additional categories of potential conflict with opposing counsel to be evaluated: 1) intimate relationships, 2) friendships and 3) acquaintances. The opinion states this additional guidance is helpful “because changing living patterns suggest that more people are living in households and arrangements that do not correspond to traditional categories…”

Formal Opinion 494 relies heavily on ABA Formal Opinion 488, which addresses Judges’ personal relationships. Both are similar in analysis to the issue of Judges using Facebook1.

Although these identified categories of potential conflict are not specifically addressed within ABA Model Rule 1.7, they must still be analyzed in relation to the self-interest provisions in Model Rule 1.7 (a) (2) and the Florida equivalent, Rule 4-1.7 (a) (2). The Florida Rule provides in pertinent part: “… a lawyer must not represent a client…. if there is a substantial risk that the representation of 1 or more clients will be materially limited… by a personal interest of a lawyer.”

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An intimate relationship with opposing counsel is like ties of blood or marriage and must be disclosed to clients and informed written consent obtained in order for such representation to be permissible. The more difficult issue of conflict arises in the case of friendships and acquaintances.

The opinion acknowledges friendships may be the most difficult category to navigate and states “‘friendship’ implies a degree of affinity greater than being acquainted with a person . . . the term connotes some degree of mutual affection.” The opinion further recognizes not all friendships are the same. A close friendship requires disclosure to each respective client with informed written consent. Without disclosure and consent, one or both counsel may be required to decline the representation. The opinion gives guidance on what is considered a close friendship.

The opinion describes acquaintances as “relationships that do not carry the familiarity, affinity or attachment of friendships. Lawyers, like judges, ‘should be considered acquaintances when their interactions . . . are coincidental or relatively superficial, such as being members of the same place of worship, professional or civil organizations, or the like.’”

LeeBar.org

It is concluded a lawyer need not disclose a mere acquaintance and need not obtain informed consent for representation.

However, the opinion provides sound advice in stating, “Disclosure may be advisable to maintain good client relations. It may be helpful to inform a client that the lawyer has a professional connection with opposing counsel and then explain how that will not materially limit the lawyer’s objectivity but may, in fact, assist in the representation because the lawyers can work collegially.”

For our relatively small legal community in Southwest Florida, ABA Formal Opinion 494 provides valuable guidance of how to navigate our personal relationships with opposing counsel without incurring avoidable scrutiny from the bench or bar.

Law offices of Herssein and Herssein, P.A. v. United Services Automobile Association, 271 So. 3d 889 (Fla. 2018).

1

Henry Lee Paul, Esq. is a former Bar Counsel for the Florida Bar who now represents lawyers in all matters before The Florida Bar and offers risk management services on all legal practice matters. He also represents applicants in all matters before The Florida Board of Bar Examiners.

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December 2020

RES GESTAE

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practice section: tort litigation

The tort litigation section looks at moving forward with Zoom by dawn maselli, esq.

2020

has certainly been a different year for all of us. Words and phrases like “social distancing," “Zoom," “flatten the curve” and “quarantine” have worked their way into our everyday vocabulary.

The Tort Litigation section had in-person events planned for 2020, which are always opportunities to meet with other attorneys and discuss topics of interest to tort practitioners, including civility and professionalism. One planned event was a Mediation/Arbitration panel discussion in conjunction with the ADR section of the Lee County Bar Association.

Unfortunately, our plans for the panel discussion, and other events, had to change. We had high hopes we would be rescheduling the canceled events from earlier in the year for the fall as in-person meetings, but 2020 continues to have different plans for us.

We are able to go forward, however, using Zoom.

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We are proud to present Stephen Smith speaking to us via Zoom on December 3, 2020. Smith is one of the attorneys involved in one of the first in-person jury trials held in Florida since the pandemic and the first in-person jury trial held in St. Lucie County. The jurors were spread out to maintain social distancing, everyone wore masks, and there was a clear plastic screen separating attorneys and clients from jurors. It was also discouraged to have evidence handled by other parties or jurors when possible.

trials in this new age.

Other upcoming events include a webinar on the future of Zoom depositions and hearings post-pandemic, a CLE on the anatomy of voir dire, and the rescheduled mediation/arbitration panel discussion.

We will include all future event dates in upcoming editions of Res Gestae.

Please consider joining the Tort Litigation Section to discuss and learn about current and emerging substantive issues in tort law.

Smith, the defense attorney in the case, says, “I’m honored to be here for the first trial although the true heroes in my opinion are the jurors who came here selflessly and are here to serve their duty.”

Smith’s trial was held October 8, 2020.

Unfortunately, almost two short weeks later, the St. Lucie courthouse stopped jury trials again when some employees tested positive for COVID-19.

Smith will be speaking about the pros, the cons, and tips for practitioners conducting LeeBar.org

Dawn Maselli, Esq. is an attorney at Associates & Bruce L. Scheiner. She is a member of the Board of the Young Lawyers division of the Lee County Bar Association, as well as the Southwest Florida Federal Bar Association.

Additionally, she is a graduate of Class VII of the Florida Bar Leadership Academy.

Court Appointed Receiver, Property Management and Specialty Oversight Kenneth P. Saundry, Jr. brings 42 years of business and real estate management experience to each Court Appointed Receiver assignment.

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December 2020

RES GESTAE

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YLD spotlight

' Tis the season at YL D by tiffany pereira, esq.

'T

is the season for giving, family, friends, and being thankful for another year. While this was not the year I planned, I hope you enjoyed the few events we held! This was the first year the YLD obtained our own sponsors, and we were blessed with three: DeMine Immigration Law Firm, Associates & Bruce L. Scheiner, and Total Quickbooks Solutions.

After January’s Swearing-In Luncheon, we held a financial reporting workshop and CLE with the owner of Total Quickbooks Solutions, Carrie Kane. Carrie taught us about financial reports, how to use them, and what they mean. Unfortunately, this was the end of our in-person events for a while.

We followed up during the pandemic with a CLE titled “Zoom: Best Practices” featuring P.J. Scheiner of Associates & Bruce L. Scheiner. P.J. provided tips and tricks to best utilize Zoom and other meeting platforms, a topic which is increasingly important.

In October, we enjoyed hearing from Judge Devin George, Judge Tara Paluck, Judge Josephine Gagliardi, Public Defender Kathleen Smith, and Clerk of Courts Linda Doggett. They provided a criminal law update for Lee County. We had overwhelming attendance from attorneys in all practice areas.

It was great to finally catch up with friends and colleagues at our Holiday Party at Coastal Dayz Brewery in Fort Myers. We enjoyed Tijuana Flats and great drinks. The first 50 people in attendance received a free long-sleeved t-shirt compliments of our sponsors! Coastal Dayz, The Law Office of Spencer Cordell, Camadeco Law Group PLLC and Boy

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LeeBar.org

Agnew Potanovic sponsored this event.

One opportunity we have left to round out 2020 is a toy drive for Abuse Counseling and Treatment, Inc. (ACT). ACT is a private, not-for-profit agency committed to serving victims of domestic violence, sexual assault, and human trafficking. We are collecting new, unwrapped gifts for the children in their programs and shelters. We are collecting gifts at the LCBA office until December 20th.

Thank you to my amazing fellow board members and all YLD members for another memorable year. Though we planned to host a variety of substantive legal trainings followed by a series of pro bono opportunities, I have full faith next year’s Board will wow you with opportunities!

It has been a true honor and pleasure to serve as this year’s YLD President, and I am excited to assume the role of LCBA President-Elect. I look forward to continuing to serve our legal community and am always eager to hear from you. If there is anything I can do for you, or you would like to see from us, please email me at tiffany@thepereiralawfirm.com.

Figuratively, my door is always open!

Happy Holidays and Happy New Year!

Tiffany L. Pereira, Esq. is a solo practitioner who concentrates her law practice on transactional business and agricultural law. She serves on the YLD Board of Governors, as a member of the LCBA Executive Council and she is the president of the LCBA Young Lawyers Division.

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December 2020

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17

special feature

by keith grossman, esq.

W

hen I was a kid, the teacher handed out papers for inclassroom work duplicated on a low-cost mimeograph machine that used ink.

pusher just won’t die.

The mimeograph paper felt a little damp.

The smell of chemicals filled the room.

Our eyes were big with glee. Our hushed voices couldn’t disguise the excitement as we held the mimeographs to our noses, eagerly ingesting the smell, which had the unusual effect of getting us high.

Faxing dates back to 1843, when Scottish inventor Alexander Bain obtained a British patent for the electronic printing telegraph. Bain’s machine’s transmitter scanned a flat metal surface using a stylus mounted on a pendulum. The stylus picked up images from the metal surface.

Yes, that’s right, our teachers were our first dealers of mind-altering substances.

Xerox created the first modern fax machine in 1964. The fax machine became ubiquitous, papering every office and entering pop culture.

But, alas, the mimeograph machine eventually died. It was replaced by the photocopier.

Although a faxed document never provided the same level of enthusiasm or entertainment, the fax machine won’t go the way of the mimeograph. The old paper

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“Wait!” you say. “Does anyone even use fax machines anymore?” Why yes, yes they do.

That printer that’s ringing like a telephone - that’s a fax machine.

In a 1990 episode of Columbo, the detective is in awe of a fax machine.

He says, “You can write a letter on this machine … and send it anywhere in the world?”

LeeBar.org

Amusingly, in Back to the Future 2, adult Marty McFly is fired via fax. Marty’s boss yells at him in a video transmission to “Read my fax!” Suddenly, fax machines around the room print out the same message. “You’re Fired!!!”

Michael Jordan even announced his 1995 NBA comeback via fax.

It is common lore that fax machines have been on life support for years. In fact, Gartner, a research and advisory company, stopped tracking sales of fax machines in 2008.

However, according to a recent survey of IT professionals, 89 percent of small businesses use fax machines or other fax services and 62 percent of IT professionals still support the use of fax machines.

And according to a 2017 study from International Data Corporation, a global market intelligence firm, 82 percent

of survey respondents say fax usage increased over the year prior to the survey, while only 19 percent say usage decreased.

Surprisingly, that’s a whole lot of faxing going on.

It seems certain Jurassic Park dinosaurloving industries believe fax machines are essential for transmitting sensitive documents in a way that is efficient, reliable, and secure.

And “what industries are these?” you ask. Industries like healthcare, finance, banking, manufacturing, and government.

And law. We can’t forget law.

Ron Resnick, President of OrderSnapp, a company that helps restaurants take orders online, estimates between 30 and 40 percent of their clients prefer web and app orders delivered to their restaurant via fax.

England’s National Health Service is the world’s largest purchaser of fax machines.

What are those Brits thinking? Anyone

who has seen Hamilton knows their track record for success.

But not everyone is faxfanning. There is a war being waged against fax machines because these space-hogs are keeping us from going paperless.

Maybe the leader of this rebellion is Japan’s Minister for Administrative Reform and Regulatory Reform, Taro Kono. Kono says, “To be honest, I don’t think there are many administrative procedures that actually need printing out paper and faxing.”

His statement is not quite as stirring as “Give me liberty, or give me death!”, but it’s a rallying cry, nonetheless.

And he has support from many others.

Employees are bemoaning all over the Internet, “How do I persuade my company to get rid of fax machines?”

One person tweeted, “I hate when people say things like ‘oh! you could fax it to us if that’s easier for you!’ My dudes, I still have to put hot chocolate in my coffee to drink

December 2020

it, in what world do you think I have access to and/or would know how to work a fax machine???”

NECCO, the manufacturer of the wellknown heart-shaped Sweethearts candies with messages printed on them, recently eliminated “Fax Me” from their inventory of messages.

The Smithsonian even includes fax machines as historical artifacts in its collection!

Despite the writing on the digital wall, it seems fax machines are destined to hang around a while. One person says, “I’ve got news for you, I do [use a fax machine] and it’s not by choice. … I end up having to send something somewhere and it has to go by fax.”

Another person says, “I actually hate my fax machine, but I need it.”

The truth is many people are just reluctant to change, and the rest of us have to copy them on everything.

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HOW JUDGES ARE SELECTED understanding the process

20

RES GESTAE

Amy Coney Barrett taking the oath at the Senate hearing on October 27, 2020. Photo credit: Lucy.Sanders.999/Wikipedia LeeBar.org

by keith grossman, esq.

O

n October 12, 2020, Senator Lindsey Graham lightly taps his gavel four times, and says, “Good morning, everybody. The hearing to confirm Judge Amy Barrett to the Supreme Court will now begin.”

For the Supreme Court, appellate courts, and circuit courts, the JNC is made up of nine members. The Governor selects five directly and selects the remaining four from a list of nominees recommended by the Florida Bar.

Barrett takes her seat in front of the Senate Judiciary Committee, and so begins the confirmation process for a seat on the United States Supreme Court.

This process is the practical application of a system envisioned by our country’s forefathers. The U.S. Constitution’s three branches of government include an independent judiciary, one where the judges have the ability to act free of influence or control by government or private citizens.

In Federalist 78, Alexander Hamilton argues for the independence of judges. He writes the judiciary should be insulated from the political process, so they can be a check on the legislative and executive branches. Hamilton also writes the judiciary must be empowered to strike down laws passed by Congress that it deems “contrary to the manifest tenor of the Constitution.” The ultimate goal is a judiciary that provides fair and impartial adjudications of disputes in accordance with the law.

Most states use elections as part of their selection process.

In Florida, Judges are elected in nonpartisan elections.

When a Judge retires, or otherwise vacates their seat, in the middle of their term, the Governor appoints their replacement from a list of candidates provided by a Judicial Nominating Commission (JNC). At the end of the appointment term, the appointed judge then has to run for election to keep their seat.

The creation of the JNCs started in 1971 after complaints about the way judges were previously chosen. Attorney and former Florida Supreme Court JNC member Jason Unger once said, “There was concern that Governors were using it, using judges as a patronage type system where they would select someone. So the constitution was amended and we now have judicial nominating commissions for the circuit, appellate and supreme court level.”

There are 27 separate JNCs in Florida: one for the Florida Supreme Court; five for each of the district courts of appeal; twenty for each circuit court; and one Statewide Commission for Judges of Compensation Claims.

Carolyn Swift being sworn in

Kathleen Fitzgeorge served on the 20th Circuit JNC for approximately eight years until recently. She says, “Commissioners are required to complete training, take an oath, and must operate in accordance with the Uniform Rules of Procedure for the jurisdiction of the applicable level of the JNC to which they are appointed.”

JNC members serve four-year terms, except when appointed to fill a vacant, unexpired term. JNC members are ineligible to be appointed to any judicial office for which the JNC has authority to make nominations during their term and for two additional years.

Each JNC has a chairperson. Aaron Haak is the chair of the 20th Circuit JNC. He says, “The JNC holds an annual meeting at which the JNC elects from its members a chairperson and vice-chairperson to serve for the succeeding year. In my experience, the vice-chairperson from the prior year is elected by the JNC members to serve as chairperson the succeeding year.”

Fitzgeorge says, “(Being the chairperson) is largely a leadership and organizational responsibility to assist the Commission as a whole and keep matters on track, so they are completed in a timely manner.”

Haak is serving his second term as chairperson. He says, “The chairperson of the JNC is the official contact between the JNC and the Governor’s office from the convening of the JNC through the submission of nominees by the JNC to the Governor’s office. Communications with the

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Governor DeSantis, however, is encouraging each JNC to interview applicants; at least new applicants who have not been interviewed previously. Former Lieutenant Governor Jeff Kottkamp, who served with Governor Charlie Crist from 2007 until 2011, says, “The Governor may provide his General Counsel with very general marching orders (look for candidates that won’t legislate from the bench...), but beyond that, the Governor relies heavily on the in-person interviews of the candidates.”

At the beginning of the process, the Governor’s office does not provide any specific qualifications they are seeking in a nominee. Haak says, “I am aware of occasions when a Governor has rejected an entire slate of nominees from a judicial nominating commission, but that has never occurred on the JNC on which I have served.”

Devin George being sworn in

The JNC determines by majority vote which applicants to recommend. The JNC must nominate no fewer than three and no more than six applicants.

Governor’s office are primarily through the Governor’s Deputy General Counsel and JNC Coordinator.”

When a judicial seat becomes open, the JNC begin the process of selecting and submitting names of qualified individuals. Per the Florida Constitution, the JNC has thirty days to submit nominations.

The Governor has sixty days to appoint a judge from among the nominees.

Haak says, “This is probably the biggest misconception, or unknown to members of the Bar, with respect to the JNC and how it operates.” Most people incorrectly think the JNC has sixty days to submit nominations.

“The Florida Constitution allows the Governor to extend this time period for up to an additional thirty days (practically this occurs only upon request from the JNC and approval by the Governor’s office)," Haak says, "making the outside deadline possible for submission of nominees up to sixty days from the JNC being convened.

In my experience, extensions of time up to the sixty-day maximum are the exception rather than the rule, and in the most recent instances of judicial vacancies, the JNC has been required to submit a list of nominees within thirty days of receiving notice to convene.”

Geoffrey Gentile's investiture

Fitzgeorge says, “It is a very demanding and timeconsuming process.” She describes the members of the 20th Circuit JNC as “very professional and qualified Commissioners who take this quite seriously and get the job done.”

The JNC investigates each applicant. The JNC goes through the applicants’ writing samples, reviews Florida Bar disciplinary records, Florida Board of Bar Examiners records, credit records, law enforcement agency records, and Florida Judicial Qualifications Commission records.

Fitzgeorge says, “The Commission is encouraged to seek and receive information from interested persons and groups. (Our JNC) is very serious about contacting references, opposing counsel, employers, the judiciary, and any others who may be able to provide input on the applicant.”

After the Governor receives the list of nominees, an interview process starts in the Governor’s office. Kottkamp says, “(It) is usually led by the Governor’s General Counsel.

Often the General Counsel and a Deputy Chief of Staff will do the first round of interviews and then schedule the top three choices for a second round of interviews with the Governor.”

The JNC also typically interviews eligible applicants, but not every JNC does. Fitzgeorge says, “Some JNCs do not interview at all and some interview everyone.”

Judicial selection is complex, and the JNC selection process is intended to identify qualified applicants and protect the independence of the judiciary.

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legal lens flashback to 2019 In light of coronavirus canceling faceto-face events for the past several months, Res Gestae is looking back at past events during the year 2019 while we all look forward to coming together in the future.

1. Michael Covey Davis, Andrew Epstein, John Webb, Christopher Smith at the LCBA Social at the Downtown Social House on January 10 2. New 20219 executive board members and YLD president at the LCBA Swearing-In Ceremony and Luncheon held on January 18. Kathy Smith, Michael-Anthony Pica, John Webb, Hon. James Adams, Matt Roepstorff, Spencer Cordell, Tiffany Pereira, Peter Knize, Nicole Brunswick 3. Spencer Cordell, Shatree 'Tia Jones Cordell and kids enjoy the Family Bowling Event held at Headpinz Entertainment Center 4. LCBA Luncheon attendees Katie Calvo, Hon. Devin George and Matt Roepstorff on February 22 5. Paul Liles, Jeff Kottkamp, Dennis Webb, Robert Pritt at the Past Presidents Luncheon on March 22 at the Sidney & Berne Davis Art Center

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Photos courtesy of Jim Jett Photography

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6. Jerry Von Gruben and Hon. Robert Branning serving up deliciousness at the LCBA Foundation Bar-B-Q and Shrimp Boil on March 30 7. Foursome Ken Jurek, Sean Ellis, Bruce Harwood, Ryan O'Halloran at the LCBA Foundation Charity Golf Tournment held on May 4 at The Forest Country Club 8. Hon. Devin George, Noelle Branning, Kelly L Fayer, Ita Neymotin, Henry Lee Paul attending the 3rd Annual Diversity Workshop and Luncheon held on June 7 9. Blake Hampton and Hon. Zachary Gill at the Health & Wellness Luncheon on September 20 10. John Webb, Shelly Finman, Joel Hyatt at the LCBA Downtown Dash on September 20 11. Michael-Anthony PIca and Hon. Lee Schreiber attend the Pro Bono Luncheon on October 24 12. Tiffany Pereira, Travis Russell and Lauren Baugh attending the 30th Annual Bench Bar Gala - Pearl & Lily Jubilee on November 16 13. Hon. Gilberto Perez, Mag. Kimberly Davis Bocelli, Hon. Carolyn Swift celebrating at the LCBA Holiday Party held at the Edison Restaraunt on December 19 For more pics, check out the galleries at LeeBar.org

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guest attorney

pandemic preparation How the courts are handling jury trials, and what to expect as a trial attorney by ty roland, esq.

I

t has been said you never want your lawyer or doctor to describe your case/condition as “interesting.”

Well, the year 2020 has certainly been an interesting year for court procedure, and specifically, jury trials.

With everyone trying to understand and manage a global pandemic, the Florida Supreme Court ordered the suspension of jury trials across the state.

Once the restrictions eased, our court system aggressively tackled the critical importance of how to accommodate this “new normal." The Supreme Court selected the 20th Circuit as one of the first to lead the resumption of jury trials, and charged Chief Judge Michael McHugh with spearheading the effort. Judge McHugh, like many of the respected trial judges in our circuit, practiced as a trial lawyer before donning the robe, and I am

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grateful to have such a strong judiciary acting as a force in these trying times.

readying to seize any opportunity to return to normalcy.

As anyone with an active litigation practice knows, the courts have been moving as many cases forward as possible using technology. So far, this success has been driven by a commitment to the strong presumption that technology can be used for everything but jury trials. I know I am not the only one who has now handled many events that previously mandated a personal appearance: lengthy evidentiary hearings, expert depositions with A-ZZ exhibits, mediation, and multiday arbitrations. With taking these events virtual, new hurdles exist, such as filing pleadings and evidence and corralling experts and clients onto Zoom.

Thankfully, our courts have remained agile in constantly evaluating and

How the courts have handled jury trials, and how it’s evolving

LeeBar.org

In recent months, the courts returned to in-person jury trials in phases. According to the Lee County Clerk of Court's Kevin Karnes, as of mid-September, the courts began holding one trial per day on select days of the week. In late October, the courts began holding two trials per day. The courts are placing due process trials as top priority with the order of trials as circuit criminal, then county criminal, and then circuit civil. At the time of this article, there haven’t been any civil jury trials, (although many bench trials), but our circuit has led all others

Continued on page 28

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239.263.2059 ■ LReina@LPReina.com RES GESTAE

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Continued from page 26 in the number of criminal jury trials. The question of “when,” rather than “if,” looms heavily for civil trial lawyers and their clients.

The biggest challenge with a jury trial is the venire. The jury room was built to accommodate a robust number of potential jurors: 375. Social distancing requirements limits the number to 75 persons. On the actual day of trial, there are new procedures. Upon arrival, a health screening questionnaire and temperature checks are performed. This may slow down the entrance process, so it’s essential to make sure you and your clients are on time. Masks are required while in the building at all times.

Plexiglass partitions have been installed in certain areas of the courtroom.

Jurors are generally separated into two courtrooms.

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What to expect as a trial attorney As a trial attorney, my approach has evolved in anticipation of the return to the courtroom. With social distancing, I’m especially mindful of how I present my evidence to the jury. Historically, we present in front of a jury box, which enables me to effectively communicate with the jurors. With the use of two rooms, I anticipate limited in-person time and will rely more heavily on tools like video clips to help convey my message.

We should all commit to exploring new technologies and new ways to replace the classical ones. These interesting times press trial lawyers to embrace change and new ways to try cases while, most importantly, still protecting our clients.

As we resume jury trials, delays will be inevitable, especially in the event a party becomes ill. Per the current administrative orders, an increase in local

LeeBar.org

infection rates could potentially revert any county back to Phase One, which would press the circuit to hold trials exclusively virtually again. With that hypothetical in mind, realize a fully virtual civil jury trial is not outside the realm of possibility. The word limits on this article will not permit me to explore the potential pros and cons.

However, with the right trial lawyers and the right case, this should be considered in a time when, if nothing else, it could provide a jury trial date certain for the benefit of your client.

Ty Roland is senior partner at Aloia, Roland, Lubell & Morgan, PLLC in Fort Myers. Roland was just named the 2020 “Trial Attorney of the Year” by the Southwest Florida Chapter of the American Board of Trial Advocates.

xx

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the dish

The Wine Room

and GRAZING

HAUS

Everything's fine when you have cheese and wine... by lauren baugh, esq.

D

owntown Fort Myers has a new wine bar, The Wine Room, and we could not be more excited!

Sarah Newcomb recently opened, and operates, The Wine Room. Her timing was great. I needed a venue with an affordable private room option to host our Board meeting and Board dinner, and The Wine Room fit that need.

Not only is this place cool in many ways, but they also give back to local charities.

Even cooler! For each bottle of wine you purchase, they give 3% to one of three charities (you choose): The Foundation for Lee County Public Schools, Junior Achievement of Southwest Florida, or Cape Coral Animal Shelter.

The Wine Room has an amazing selection of wine, which includes some fun-named house wines, such as the River District Rose, Cape Coral Cabernet, and the Caloosahatchee Chardonnay. They also offer beer and other libations for those who are looking for something other than wine. I am now a huge fan of the Music Walk Merlot and would highly recommend it!

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In my search for a place to hold our meeting, I also reviewed meal options and wanted something different than the standard steak and potatoes. The Wine Room doesn’t serve food, so Tiffany Pereira and I decided we wanted food brought to us. I inquired with Sarah if we could bring outside food into her establishment, and she said, “Yes, of course.”

Tiffany and I thought about our local options, and she recommended the Grazing Haus, a place she frequently saw LeeBar.org

on Instagram. I emailed Ali Strauss, the owner and operator of Grazing Haus, and we hit it off. Grazing Haus offers a large selection of boards, cheeses, meats, fruits, crudité, crackers, and the like. Ali sticks to as many local vendors as she can find, and I love that idea.

delicious and flavorful. They all complimented one another. If you have not tried the Grazing Haus goodies, trust me, you want to. Ali has all kinds of boards available. She also has individually wrapped items, which make amazing gifts for clients, friends, and family!

The Grazing Haus website and Instagram have a beautiful array of pictures making it hard not to salivate while skimming through them. Grazing Haus and The Wine Room were a match made in heaven, for sure. The amazing selection of cheeses, fruits, veggies, meats, and crackers paired wonderfully with the incredible wine. My favorite was the Merlot Cheese – a cheddar-parmesan inspired cow’s cheese immersed in merlot. The merlot gives the cheese an extra tang, making it so delicious!

Booking an event at The Wine Room is simple. Email info@thewineroom.com, and if the day and time are available, Sarah will get you in and help you set up the room. To order Grazing Haus, email grazinghaus@gmail.com or visit their website at grazinghaus.com.

Each beautifully arranged item was

Photos below top row (left to right: The Wine Room exterior, The Wine Room private label wines, a sampling of a wine tasting lineup, author, Lauren Baugh, in front of the photo wall.

Photo below bottom row: a grazing table provided by Grazing Haus with a delicious selection of bread, crackers, cheese, meat, dips and spreads, veggies and fruit.

1544 Broadway Fort Myers, FL 33901 thewineroomfm.com 239.689.1706 Monday- Thursday 4 pm - 8 pm Friday 4 pm - 10 pm Saturday 3 pm- 10 pm | Sunday Closed

Artful Cheese & Charcuterie - Delivered SW Cape Coral, FL grazinghaus.com 239.223.0777 Monday - Closed Tuesday-Sunday - Appointment Only

Lauren Baugh is the executive director of the Lee County Bar Association. She can be reached at lauren@leebar.org.

December 2020

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100 club Is your firm part of the 100 Club? Any firm with two or more attorneys and 100% membership in the LCBA qualifies.

Absolute Lsw, P.A. Aloia, Roland, Lubell & Morgan, PLLC. Arend & Sisk, P.A. Associates & Bruce L. Scheiner, P.A. Banker, Lopez & Gassler, P.A. Boy Agnew Potanovic, PLLC. Boyle & Leonard & Anderson, P.A. Burandt, Adamski, Feichthaler & Sanchez, PLLC. Calvo & Calvo, Attorneys at Law Coleman & Coleman, PLC. Cole Scott & Kissane, P.A. - Fort Myers Florida Rural Legal Services, Inc. Freidin & Inglis, P.A. Garvin Law Firm Geraghty, Dougherty, Edwards & Stockman, P.A. Goldberg|Noone|Abraham Personal Injury Atttorneys Goldstein, Buckley, Cechman, Rice & Purtz, P.A. GrayRobinson, P.A. Green, Schoenfeld & Kyle, LLP Hollander & Hanukah, Attorneys at Law Henderson, Franklin, Starnes & Holt, P.A. John Webb Legal Group, P.L. Kelleher Law

Knott Ebelini Hart Law Offices of Dennis L. Webb, P.A. Law Offices of Michael M. Raheb, Criminal Lawyer Law Offices of Scott T. Moorey Lee County Legal Aid Society, Inc. Linde Law Group Men's Rights Law Firm O'Halloran & O'Halloran, Attorneys at Law Osterhout & McKinney, P.A. Patrone, Kemp & Bentley, P.A. Pavese Law Firm Roetzel & Andress, L.P.A. Rubinstein & Holz Scarmozzino Law Firm, P.A. Sheldon E. Finman, P.A. Sheppard, Brett, Stewart, Hersch, Kinsey & Hill, P.A. Simmons Law Firm, P.A. Spivey Law Firm, Personal Injury Attorneys, P.A. Strayhorn and Person, P.L. The McQuaggue & King Law Firm Viacava & Cantor Attorneys at Law Viles & Beckman, LLC Zinn Law

If you feel your firm is eligible, email a listing of your attorneys to admin@leebar.org and we will let you know.

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judge spotlight

Taylor Lewis (JA to Hon. Devin George)

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3. I was, and am again, the only male Judicial Assistant in the 20th Circuit - Thanks Rich Haberle!

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member spotlight

Melissa Barris, Esq.

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3. My family loves history, and I spent most of my childhood weekends participating in Civil War and pirate reenactments in many of the places we lived.

4. I love basketball, and I am an avid Boston Celtics fan. One of my memorable moments was the year I spent my birthday watching the Celtics play in Boston, and we had floor tickets!

5. My husband and I have taught Bible study every Friday for over 15 years.

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in the news

Shanthy Balachanthiran recently joined Vernis & Bowling, a regional law firm with 18 offices in the Southeast, to help grow their civil litigation practice in Southwest Florida. Balachanthiran recently received recognition in Naples Illustrated’s 2020 Top Lawyers in tax law and was selected as one of Business Observer’s 2020 40 Under 40 honorees.

Christina “Christy” O’Brien, of Henderson, Franklin, Starnes & Holt, P.A, served as a panelist during the recent Association of Family Law Professionals’ annual conference. The session focused on the circumstances and procedures available under Florida law when one parent wishes to relocate a child more 50 miles from his/her current residence. O’Brien, who concentrates her practice on family law, is a member of The Florida Bar Family Law Rules Committee.

Monica Schmucker, of Henderson, Franklin, Starnes & Holt, P.A, was elected to the Friends of Lovers Key (“FOLK)” Board of Directors. FOLK is a 501(c)(3) citizen support organization dedicated to the preservation of Lovers Key State Park through volunteering and fundraising to cover budget shortfalls for items needed to protect wildlife, cleanup and repairs after storms, and other park services enrichment programs.

Preston J. “P.J.” Scheiner, of Associates and Bruce L. Scheiner, has been invited to become a member of the American Board of Trial Advocates (ABOTA). P.J. Scheiner is one of only 300 attorneys across the U.S. invited to join this prestigious organization this year. ABOTA is a national association of experienced trial lawyers and judges dedicated to preserving and promoting the civil jury trial right provided by the Seventh Amendment.

Call to Zoom action for all attorneys! Here’s an opportunity to build your pro bono service hours and serve senior residents of Lee County. On Saturday, December 12th, Lee County Legal Aid Society is organizing “JUST FOR SENIORS”. Volunteer attorneys are providing limited legal assistance on a wide variety of legal issues via individual Zoom. This event is sponsored in part by Cape Coral Community Foundation, United Way, and Lee County. Contact Nanci DuBois to volunteer: nanci@leecountylegalaid.org

Sean Shearman, 23, son of Bob and Susan Shearman, died on October 31, 2020 after an automobile accident. Sean was a graduate of Fort Myers High School and a college student at Florida State University.

Bob Shearman, Esq., is a stockholder with Henderson, Franklin, Starnes & Holt, P.A., and an active supporter of the Lee County Bar Association, as well as other local not for profit agencies.

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