Issuu

A Publication of the Orange County

Bar Association

Inside this Issue:

January 2011 Vol. 79 No. 1

President’s Message The One-of-a-Kind Larry Mathews Frank M. Bedell

Judicial Relations Committee Changes Come to Confidentiality of Court Filings Lawrence Kolin

OCBA January Luncheon Sandy Lincoln, Senior Vice President Investment Strategist M&I Bank Wealth Management

Family Law Committee 2010 Legislative Family Law Changes Involving Issues of Support Lori Caldwell-Carr

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BIRMINGHAM PAGE 1

Table of Contents:

President’s Message The One-of-a-Kind Larry Mathews Frank M. Bedell

Associate Editors Allison C. McMillen & Suzanne D. Meehle

Professionalism Committee Professionalism in Appellate Practice Carrie Ann Wozniak OCBA January Luncheon Sandy Lincoln, Senior Vice President, Investment Strategist M&I Bank Wealth Management Family Law Committee 2010 Legislative Family Law Changes Involving Issues of Support Lori Caldwell-Carr Judicial News Investiture: Honorable Heather K. O’Brien Judicial Relations Committee Changes Come to Confidentiality of Court Filings Lawrence Kolin

Side Bar Columnist Sunny Lim Hillary YLS Columnist Jacquelynne J. Regan w

OFFICERS Frank M. Bedell, President Thomas A. Zehnder, President-Elect Kristyne E. Kennedy, Treasurer Paul J. Scheck, Secretary

EXECUTIVE COUNCIL Wiley S. Boston Mary Ann Etzler Meenakshi A. Hirani Elizabeth F. McCausland Nichole M. Mooney Gary S. Salzman Nicholas A. Shannin William D. Umansky William C. Vose Kimberly D. Webb Esther M. Whitehead Diego “Woody” Rodriguez, Ex Officio Eric C. Reed, YLS President

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Legal Aid Society What We Do… Going the Second Mile Donna A. Graf

YLS on the Move Welcome 2011! Jacquelynne Regan

SideBar Sunny L. Hillary Paralegal Post Paralegal Membership in Local Bar Association Linda McGrath Cruz, FRP, ACP

w EXECUTIVE DIRECTOR Brant S. Bittner w

Communications Manager Peggy Storch

Presentation Skills Do You Look Like You’re Lying? Elliott Wilcox

Marketing Manager Mente Piccoli Marketing Assistant William M. Remensnyder

Rainmaking Marketing Goals – Part I Mark Powers & Shawn McNalis

30 33 35 36

New Members Announcements Classifieds Calendar

880 North Orange Avenue • Orlando, FL 32801 (407) 422-4551 • Fax (407) 843-3470 Legal Aid Society Citizen Dispute Family Law Mediation Lawyer Referral Service Legal Placement Service Young Lawyers Section

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If the deadline falls on a weekend or holiday, the deadline is the next business day. Publication of advertising herein does not imply any endorsement of any product, service or opinion advertised. The opinions and conclusions, including legal opinions and conclusions contained in articles appearing in The Briefs, are those of the authors and do not reflect any official endorsement of these views by the Orange County Bar Association or its officers and directors, unless specifically stated as such. All contents ©2011 Orange County Bar Association. All rights reserved. Designer: Catherine E. Hebert Cover Photo: iStock.com

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theBriefs January 2011 Vol. 79 No. 1

President’s

Message

The One-of-a-Kind Larry Mathews

January 2011

ater this year, some deserving young lawyer will receive the Lawrence G. Mathews, Jr. Young Lawyers Professionalism Award. I had the good fortune of practicing law with Larry for six and one half years, and we tried his last three cases together (actually, he did most of the trial work). Larry was an extraordinary person. He excelled in many different pursuits ‒ he was an excellent lawyer of great integrity and a true believer in the best of our profession; he was an effective and compassionate managing partner who inspired trust and loyalty in his partners and employees; and he was a terrific raconteur and a valued friend to many. In short, Larry was one of those people you never forget. I first heard of Larry Mathews in connection with a $480 million trial that took place in the late 1980s. The future of Orlando’s only publically traded company at that time, Harcourt, Brace, Jovanovich (HBJ), was at stake, and Larry’s firm represented HBJ. Larry and Mr. Jovanovich had become close. A corporate raider had launched a hostile takeover, and HBJ dug in. The litigation turned upon the interpretation of debentures for which SunTrust served as trustee. The trial took place in state court in Orlando, and Judge Frederick Pfeiffer presided. There were many parties, and they all had local and out-of-town counsel. I remember watching the trial and seeing three former OCBA presidents and/or professionalism award winners ‒ Darryl Bloodworth, John Fisher, Bill Wilson ‒ and a youthful looking guy who seemed to be enjoying himself. He rarely used notes! That lawyer was Larry Mathews, and while I don’t remember the outcome of the trial I do remember the way Larry handled himself in that courtroom. After asking around, I found out that Larry had a history of success. He made it onto both the law review and moot court teams at the University of Florida. He was an accomplished marathon runner, former president of The Florida Bar’s Young Lawyers Division, former chair of the Board of Bar Examiners, future (at that time) OCBA president, and a Vietnam veteran who had served two tours of duty. But Larry seemed to keep it theBriefs January 2011 Vol. 79 No. 1

in perspective, as reflected by his response to questions about what he felt when he found out that he could leave Vietnam. When asked, he would say, “I had mixed emotions ‒ joy and elation.” A few years after the HBJ trial, I went to practice at Mathews, Smith & Railey and occupied an office next to future Orlando Mayor Buddy Dyer. Within six months, Larry and I were working together on a hotly contested case in federal court. Our response to a very aggressive motion was due, and we had prepared an equally aggressive position. Larry was on the phone late in the day on which our papers were due, so I signed the response. I then received a letter threatening Rule 11 sanctions and took the letter to Larry, who apologized for being unavailable and said something like this, “Frank, I should have signed that response, so it’s really my name that’s on the line. Don’t worry about it now, but let’s call this guy up and see if we can work this out.” Larry and I went to the lawyer’s office about ten days later and had a very civil but firm discussion. While we didn’t reach an agreement and they didn’t withdraw the threat of sanctions (and no sanctions were ultimately levied), the opposing lawyer asked Larry at the end of the litigation whether we would accept referrals from his client. Another memorable incident took place in Pensacola. We had won most of the case on summary judgment and were trying the remainder of the issues. A witness was on the stand and began providing testimony that was both unfamiliar and unhelpful to our position. If you’ve ever had that happen (I imagine most trial lawyers know what I’m describing!), you’ll very much appreciate Larry’s reaction as he said, “Let this be a good lesson to you.” I responded, “Larry, what on earth are you talking about ‒ how could any of this be good?” “Frank,” he said, “you can never fully appreciate the smell of a rose until you’ve been pinned down by sniper fire.” It was not surprising that Larry found such a descriptive way to capture the many emotions that were running through our heads at that time. Larry loved words and was a tremendous reader. Larry read everything ‒ novels, history, biographies, newspapers, and magazines

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of all types. One of the great things I enjoyed about Frank M. Bedell practicing with Larry was walking into my office in the morning and seeing something in my chair. It could be an article or interview or column that Larry had torn out of a magazine and that related to something he and I had discussed recently. Or it might be a piece of propaganda that concerned a matter of importance on which he and I disagreed. Or perhaps it would be a cartoon, since Larry loved to laugh and loved jokes. In fact, I can picture Larry standing at the door to my office with a grin on his face, motioning me to wrap up a telephone call so that he could tell me some joke he had just heard. Most of his jokes were funny, a few were not, but the best part of this was simply watching Larry’s reaction as he reached the punch line, because his whole body would shake with laughter. Larry Mathews was not only a friend and inspiration to many people in this legal community. He represented the best in our profession and cared deeply about our future as lawyers. When he was OCBA president, Larry wrote that he worried that too often “lawyers function not as dispute resolvers, but as legal mechanics, souping up their lawsuits with inconceivable claims . . . when a simple business resolution would have been in the client’s best interest.” Thankfully, I don’t see as much of that today; maybe economic forces and the prevalence of mediation have cured some of those concerns. Or maybe, as I prefer to believe, it’s that lawyers like Larry and other beacons of OCBA professionalism have had a positive influence on the way we approach our law practice. It is fitting that the young lawyer professionalism award is named after Larry, and I hope that at some point you have a person like Larry Mathews in your life. Frank M. Bedell is a shareholder with Winderweedle, Haines, Ward & Woodman, P.A. He has been a member of the OCBA since 1987.

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Professionalism

Committee

Pop quiz. Please choose which scenario is true: 1) An attorney failed to file his brief eleven months after the due date. The appellate court issued an order to show cause why sanctions should not be imposed, to which the attorney did not respond. The appellate court then ordered the attorney to personally appear and show cause why sanctions should not be imposed. Upon appearing in court, the attorney said that he deliberately disobeyed the court’s order to respond in writing because “he could more effectively present the matter in person than he could in writing.” Sanctions imposed. 2) A motion for rehearing argued that the appellate court had committed a “judicial sin” and that the court committed a “human rights violation similar to those in a totalitarian regime.” The court referred counsel’s handling of the appeal to The Florida Bar. 3) An attorney who had been previously sanctioned in published orders four times was again sanctioned for disobeying an order to secure co-counsel and failing to submit briefs outlining the nature of the case below and any error that may have occurred in six different appeals. The court imposed $15,000 in sanctions, dismissed some of the appeals without prejudice for the appellants to secure competent counsel, and referred the matter to The Florida Bar Grievance Committee.

nfortunately, all of the above scenarios are true and can be found in reported appellate decisions.1 They demonstrate that although professionalism issues are well-documented in the trial courts, the appellate courts are not immune to these issues. Judge C. Alan Lawson, a judge on the Fifth District Court of Appeal since 2006, believes part of the problem results from the growing number of attorneys in Florida. “Attorneys believe they can hide behind their anonymity simply due to the sheer num-

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Professionalism in Appellate Practice Carrie Ann Wozniak

ber of attorneys in the state. However, behaving unprofessionally and then hiding is not the way to practice law. Judges talk about attorneys’ unprofessional antics just like attorneys do.” And appellate judges will address unprofessional behavior, sometimes immediately. Judge Lawson said that on one occasion he pulled out the Rules Regulating The Florida Bar during an oral argument and suggested that counsel listen as the judge read a rule before continuing his argument because the argument so clearly violated the rules of ethics. In appeals, professionalism is extraordinarily important and dictates a lawyer’s credibility throughout an appeal and beyond.  While the borders of professionalism and ethics can be blurred, the distinction between the two is that ethics is the bare minimum competence required of an attorney, such as not misrepresenting the holding of a case to the court. Professionalism is a high level of competence to which attorneys should strive; in short, it is ethics and much more. Below are some professionalism “do and don’t” pointers to help you achieve a reputation for professionalism in the appellate courts. Know your limitations. If you’re not familiar with The Florida Rules of Appellate Procedure or Federal Rules of Appellate Procedure, read them in detail and ask an appellate practitioner questions. Even if you are familiar with the rules, read them every time a procedural issue arises. If you’re better at oral advocacy than written advocacy, solicit an appellate practitioner from your firm or from another firm to draft or assist in drafting the brief. Don’t assume that your skills from years of trial practice will automatically transfer to an appeal. Many trial practitioners successfully bring appeals when they remember their limitations and read the rules thoroughly. Bring only meritorious appeals. Just www.orangecountybar.org

because facts in your client’s favor were raised in the court below, this does not mean your appeal is not frivolous. If the standard of review is competent, substantial evidence, you will waste time re-arguing all the facts presented to the trial court below. Remember before filing your appeal that Section 57.105, Florida Statutes, applies in appellate courts as well as trial courts. Know the standard of review.  This is a basic professionalism (and competence) issue that dictates the entire argument on appeal. Judge Lawson finds that many lawyers do not take the time to research the standard of review. This should be one of the first issues to research when taking an appeal, as an appeal involving a de novo standard of review is very different from one involving abuse of discretion. Agree to extensions of time. This is Professionalism 101, but appellate courts in particular do not look favorably upon attorneys who do not agree to extensions of time for opposing counsel to file their briefs. Appellate courts can and will issue orders to show cause why the attorneys did not agree to their opponents’ first request for an extension of time. Plus, as we all know, what goes around comes around. You’ll need an extension of time at some point. Be candid, but be careful not to make unnecessary concessions.  When you do not have a good faith argument on an issue, concede the point.  You will gain more credibility this way than if the court’s law clerks discover you have been misleading. However, if you have a good faith basis for an argument – for example an argument as to why a case is different from a particular case that appears bad for your case – make your argument.   Judge Lawson sees many lawyers concede points they should not. Be careful how you walk this fine line. Another obvious aspect of professionalism is citing all cases from the court before which you are appearing. Judge Lawson remembers one attorney being admonished during oral argument for not citing several on-point continued page 8 theBriefs January 2011 Vol. 79 No. 1

January 27, 2011

OCBA Luncheon

Sponsored by M&I Bank

Sandy Lincoln

Senior Vice President Investment Strategist M&I Bank Wealth Management

Subsequently, he became Chief andy Lincoln is Operating Officer of Lincoln Capital Senior Vice President Management, a $60 billion dollar and Investment institutional asset management Strategist for M&I Wealth Management in Milwaukee, company in Chicago. The client base there included some of the Wisconsin, a firm with $35 largest corporate pension funds in billion in assets under management. Sandy has over 30 years of investment America, as well as many significant endowment and foundation experience. organizations. Sandy served as President of Mercer Prior to joining M&I, Sandy was the Global Asset Consulting and was Chief Investment Strategist for Wayne a member of the William M. Hummer, an investment subsidiary of Mercer Board of Directors. Mercer Wintrust Financial. is a subsidiary of the Marsh and McLennan Company. Mercer Global Sandy has appeared on CNBC, Asset Consulting provided advice CNN, WGN, and Bloomberg and is to large corporate endowment/ a contributor to the Nightly Business foundation boards regarding asset Report on PBS. He has been quoted allocation and the selection of in the Wall Street Journal, Investors investment managers. While in that Business Daily and Forbes. He holds a capacity, Sandy directed the staff of B.A. from Valparaiso University and more than 150 consultants around an MBA from Loyola University of the globe and established Mercer’s Chicago. first Tokyo operation. He has been a contributing author Following Mercer, Sandy became to articles regarding: S&P Inclusion the Chief Investment Officer of Effect, Time Period Analysis in Kemper Corporation. He oversaw Assessing Investment Performance Kemper’s $60 billion investment and Growth Stock Investing. portfolio, including $30 billion of mutual fund assets, and institutional and insurance assets. He managed a 100-person domestic U.S. investment staff, established Mercer’s London-based international The Ballroom at Church Street equity team, and directed 11:30 a.m. - 1:00 p.m. their Hong Kong-based 225 S. Garland Avenue • Orlando, FL 32801 distribution efforts. Please RSVP to reservations@ocbanet.org by Friday, January 21, 2011. Main Entrance: Garland Avenue between Church Street and South Street To ensure a proper luncheon count, RSVPs and CANCELLATIONS are requested no later than Friday, January 21, 2011. The OCBA is happy to provide 10 luncheons as part of your member benefits, but no-shows incur additional charges for the Bar and walk-ins cannot be guaranteed a seat. Please keep us up-to-date on your reservation status!

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Family Law

Committee

2010 Legislative Family Law Changes Involving Issues of Support Lori Caldwell-Carr

n 2010 practitioners in Florida have seen more changes in the area of Family Law than in almost any other area of Florida law. The Legislative Committee of the Family Law Section of The Florida Bar promulgated many changes, but some special interest groups also successfully lobbied for change. Some of the changes lobbied for address issues such as adoption home studies, garnishment of wages, Department of Revenue depository, travel restrictions with minor children, assignments to third parties of timesharing for deployed military, and concurrent temporary custody. However, the most startling changes with the most significant impact on our practice, and on our clients’ day-to-day lives, are the changes made to spousal and child support. The intent of the changes is to prevent parents in family litigation from using their children as pawns in the child support game. Below is an overview of these support changes.

I. Alimony – Florida Statute § 61.08 – Effective July 1, 2010 This new legislation modifies eight sections of Florida Statute § 61.08. These changes went into effect on July 1, 2010. a. Award of Multiple Types of Alimony Florida Statute § 61.08(1) now allows for multiple types of alimony awards. Many family law practitioners obtained these types of awards for their clients prior to this change by citing to case law. The statute now clearly allows parties in divorce cases to receive multiple types of alimony. For example, a party may now request rehabilitative alimony along with other types of long-term alimony. b. Addition of Factors to Consider in Alimony Analysis The revised subsection 2 of the statute adds factors for the court to consider when making an alimony award. The threshold factual inquiry remains the PAGE 6

same: what is one party’s need for alimony and the other party’s ability to pay? Once there is a factual finding of need and ability to pay, the statute now requires the court to consider all relevant factors listed in subparts (a) through (j) of subsection 2. The statutory revisions also added additional relevant factors for the court’s consideration. These factors, set forth in subparts (e), (g), (h) and (i), include the earning capacities, educational levels, vocational skills and employability of both parties; the responsibilities that each party will have with regard to any minor children they have in common; tax treatment and consequences to both parties of any alimony award, including nontaxable, nondeductible payments; and all sources of income, including income available through investments held by either party. c. Rebuttable Presumption Providing Determination of Length of Marriage Prior to changes to Florida Statute § 61.08(4), family law practitioners were required to rely on case law to determine whether the marriage was considered a short-term, moderate-term (or “gray area”), or long-term marriage. To further complicate the matter, each District Court of Appeal had case law that defined the terms differently. The revisions to Florida Statute § 61.08(4) specifically define the number of years for short-term, moderate-term, and long-term marriages. The length of the marriage is defined as the period of time from the date of the marriage until the date of the filing of an action for dissolution of marriage. The new classifications of the marriage terms are as follows: a short-term marriage is for less than 7 years; a moderate-term marriage is for greater than 7 years but less than 17 years; and a long-term marriage is for 17 years or longer. d. Codification of Non-Modifiable Bridge-the-Gap Alimony www.orangecountybar.org

Family law attorneys have argued cases such as Iribar v. Iribar, 510 So. 2d 1023 (Fla. 3d DCA 1987), Shea v. Shea, 572 So. 2d 558 (Fla. 1st DCA 1990), and Barner v. Barner, 716 So. 2d 795 (Fla. 4th DCA 1998) for well over a decade in order to win awards of bridge-the-gap alimony for their clients. However, Florida Statute § 61.08(5) now provides for bridge-thegap alimony as a recognized form of alimony with clear application guidelines. This type of alimony assists a party with short-term financial needs while the parties are transitioning from being married to being single. Such an award cannot exceed two years. Termination of this type of alimony is upon the death of either party or the remarriage of the receiving party. Further, bridge-the-gap alimony cannot be modified as to amount or duration. e. Codification of Modifiable/Terminable Rehabilitative Alimony Rehabilitative alimony, like bridge-thegap alimony, has previously been obtained pursuant to case law. Rehabilitative alimony requires a rehabilitative plan and is modifiable. See Fullerton v. Fullerton, 709 So. 2d 162 (Fla. 5th DCA 1998); Hill v. Hooten, 776 So. 2d 1004 (Fla. 5th DCA 2001); Brooks v. Brooks, 678 So. 2d 1368 (Fla. 1st DCA 1996). Florida Statute § 61.08(6) now clearly defines rehabilitative alimony and how it can be awarded by the court. The purpose of rehabilitative alimony is to provide for “redevelopment” of previous skills or credentials. For example, a mother who worked as a professional before becoming a stayat-home mother, but did not keep her license up to date, could be awarded rehabilitative alimony to reinstate her license. A party can also request rehabilitative alimony to return to school or to receive training to develop skills or credentials in order to obtain employment. The statute requires a party to have a rehabilitative plan before the court can award this type of alimony. Florida Statute § 61.08(6)(c) provides that rehabilitative alimony can be modified or terminated based upon a “substantial change in circumstances,” such as noncompliance with or early completion of the rehabilitative plan. continued page 28

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Professionalism Committee continued from page 4

cases from the Fifth District Court of Appeal. The attorney’s response? “I didn’t think those cases helped me.” Prepare thoroughly, then prepare some more.  Judge Lawson has seen too many lawyers who did not know basic items from the record.  Additionally, it is not enough to know the headnotes of cases cited in the briefs. Be able to compare or distinguish the facts as well, and you will stand out as a professional, competent appellate lawyer.

issues that may be appealed properly. There are various Florida Bar CLE materials that can guide the trial lawyer through preservation issues. Unfortunately, if you have taken the time to read this entire article, it is unlikely that you are part of the problem. However, we can spread the importance of professionalism by example so that the appellate courts do not have to waste scant judicial resources admonishing attorneys’ lack of professionalism. Carrie Ann Wozniak’s practice focuses on appeals and commercial litigation.  She is an associate with Akerman Senterfitt and a member of the OCBA Professionalism Committee. She has been an OCBA member since 2010.

Don’t argue to a jury. An appellate panel is

not a jury. Appellate judges have law clerks who work with the judge to thoroughly research and work up a case before oral argument. Thus, appellate judges are wellprepared for oral argument and will not be swayed by theatrics or sarcasm. Don’t argue issues that have not been preserved properly below. Obviously, the precursor to this guideline is to preserve all

The first scenario is extracted from Moose v. State, 519 So. 2d 61 (Fla. 2d DCA 1988). The second is from the Second District’s decision in Patton v. State Dept. of Health and Rehabilitative Services, Office of Child Support Enforcement, 597 So. 2d 302, 303 (Fla. 2d DCA 1991). The third is from the First District’s decision in Pippin v. State, 567 So.2d 990, 991-92 (Fla. 1st DCA 1990).

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Judicial News

Investiture: Honorable Heather K. O’Brien

he Honorable Heather K. O’Brien was sworn in as a judge of the County Court at a Judicial Investiture Ceremony held on Friday, October 15, 2010, at the Historic Osceola County Courthouse in Kissimmee. The invocation was given by Deputy Don Shearer, Osceola County Sheriff’s Office, and opening remarks were delivered by the Honorable Belvin Perry, Jr., Chief Judge of the Ninth Judicial Circuit. Presentations were made by the Honorable Steve Jewett, representing the Conference of County Court Judges; the Honorable Malcom Thompson, representing the Clerk of the Circuit and County Courts of Osceola County; and John Gillespie, president of the Osceola County Bar Association. Frank M. Bedell, president of the Orange County Bar Association, other local voluntary bars, and the Legal Aid Society were acknowledged. The Honorable Margaret T. Waller, Ninth Judicial Circuit and Jo O. Thacker, Osceola County attorney, introduced Judge O’Brien, and the Oath of Office was administered by the Honorable Alan S. Apte and the Honorable Scott Polodna, both of the Ninth Judicial Circuit. Mary O’Brien and E2 Airman David O’Brien performed the enrobing ceremony. A reception immediately followed the ceremony. Judge O’Brien was appointed to the Osceola County Judge position by Governor Charlie Crist in early August, and she officially took the bench on August 30, 2010. Judge Heather O’Brien comes to the bench from the Osceola County

Attorney’s Office where she served as Assistant County Attorney. She also serves as an Adjunct Professor of Law at Barry University School of Law. Previously, Judge O’Brien worked as an Assistant Public Defender and Staff Attorney in the Ninth Judicial Circuit. She also served as Judicial Clerk to the Honorable Alex J. Martinez, of the Colorado Supreme Court. Judge O’Brien received her Juris Doctorate from Georgetown University Law Center in 2003. She also attended Colorado College where she graduated magna cum laude in 1999, receiving a Bachelor of Arts in Political Science. Special honors she received include the Edith Bramhall Award for Top Political Science Student, Rhodes Scholarship Semi-Finalist, and numerous athletic awards and scholarships, including an NCAA National Championship in track and field and being named the 1999 NCAA Woman of the Year for the State of Colorado. She is a member of the Colorado State Bar Association and the Florida State Bar Association. Regarding her appointment to the bench, Judge O’Brien said, “It is a great honor to be appointed by Governor Crist and I look forward to many years of service to the people of Osceola County.”

In civilized life, law floats in a sea of ethics. Each is indispensable to civilization. Without law, we should be at the mercy of the least scrupulous; without ethics, law could not exist. –Earl Warren Supreme Court Justice Lawyer’s Wit and Wisdom, Bruce Nash and Allan Zullo, Editors, Running Press ©1995

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Judicial Relations

Committee

s the judicial branch transitions toward acquiring, maintaining, and distributing court records electronically, the Supreme Court of Florida has viewed the confidentiality of a narrow set of records as a “necessary prerequisite” to giving the public electronic access to court records.1 Effective October 1, 2010, Florida Rule of Judicial Administration 2.420 defined a number of critical responsibilities that all lawyers now have to be familiar with and follow. Rule 2.420, as amended, applies to all documents filed in all state courts in Florida by all parties, from small claims to appellate cases. The goal of the amendments is to balance the public’s constitutional

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Changes Come to Confidentiality of Court Filings Lawrence H. Kolin

right to access to court records with the courts’ responsibility to protect from public access those court records that are truly confidential.2 The rule is also designed to bring the court system closer to providing the public with electronic access to records.3 Rule 2.420 provides comprehensive procedures for identifying and segregating confidential information in court records, for sealing and unsealing court records, and for reviewing orders issued under the rule. Any person filing any document containing confidential information must simultaneously file with the clerk a form titled Notice of Confidential Information within Court Filings.4 On the form, the person filing

may select from 19 specific categories of information that should always be confidential.5 The clerk then reviews the filing identified as containing confidential information to determine whether it is facially subject to confidentiality under the identified provision in subdivision (d)(1)(B) of Rule 2.420. The clerk has a period of five days to disagree with a claim of confidentiality, but will hold the document in confidence for 10 more days to permit the filing of a motion to maintain confidentiality.6 If a filing contains confidential information that does not fit into one of the 19 categories on the form, a Motion for Determination of Confidentiality must be filed with the court.7 Motions for Determination of Confidentiality must be styled

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as such to be heard in a timely manner. Be aware that sanctions may be imposed for violating Rule 2.420.8 Lawyers have the principal duty to protect court files in Florida, and they can be held accountable if they do not.9 Although the Clerks of Court retain certain responsibilities with respect to receiving, maintaining and giving access to court records, that is not expected to reduce or change the lawyer’s separate and independent obligations to be mindful of the areas of law that provide for the confidentiality of some documents and information, and of the public’s right to

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access to the rest. Because lawyers need to be versed in this new rule, The Florida Bar has provided members with a free online Legalspan CLE, which may be accessed at www.flabar.org.10 Lawrence H. Kolin is a Certified Circuit-Civil Mediator in Winter Park and has been a member of the OCBA since 1994. In re Amendments to Florida Rule of Judicial Administration 2.420 and The Florida Rules of Appellate Procedure, 31 So. 3d 756 (Fla. 2010). 2 See Gary Blankenship, Lawyers will be responsible for redacting confidential information in court filings, The Florida Bar News, Sep. 1, 2010, http://www.floridabar.org/ DIVCOM/JN/JNNews01.nsf/Articles/BA025DA1E12A138A852577850063C692. 3 Id. 4 Fla. R. Jud. Admin. 2.420(d)(2). 5 See Blankenship, supra. 6 Fla. R. Jud. Admin. 2.420(d)(2). 7 Fla. R. Jud. Admin. 2.420(d)(3). 8 Blankenship, supra. 9 See id. 10 Id. 1

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theBriefs January 2011 Vol. 79 No. 1

Legal Aid Society

News

What We Do... Going the Second Mile Donna A. Graf

s the Legal Aid Society approaches its 50th jubilee celebration, we asked board members for their personal stories about the history of Legal Aid. With the holiday season past and a new year started, we found it fitting to share this touching story from one past board member, David L. Holbrook. I served as a runner for Joe Durocher when he was the first Director of the Joseph W. Durocher Legal Aid Society of the Orange County Bar Association, Inc. located in the old Salvation Army Building. This was between June and December 1970.   At that time, Legal Aid was handling small misdemeanors perpetrated within the Orlando City limits.  I had been accepted to the University of Florida Law School but could not go because of a Vietnam Era Army commitment. Joe met me as he was running out of his office and I was looking for work. I was newly graduated from UF, but was facing imminent deployment. The Army had delayed my entry date, so I was in limbo until the Army said hello five months later with the inevitable news of a Vietnam tour in my future. What a marvelous experience it was carrying Joe’s briefcase and investigating cases during those exciting five months or so.  Joe’s compassionate character was incomparable and his heart of mercy for those in need knew no limits. I was reminded of a time when we finished a trial in what was then Municipal Court. John Robertson, now deceased, gave our client until 5:00 p.m. to be out of town.  Actually, the client had been trying to get back to Canada all along. His plans were thwarted when he was found under a car at the old Orange Court Motel siphoning gas to fill his tank. He was an old man, estranged from his wife and quite distraught about being caught up in the legal system. He stood before Judge Robertson, humbled, hunched over, crying and dearly wanting to get home. After his sentence was rendered, (out of town by 5:00 p.m.), it dawned on him he had no money to even take a bus.  Joe, who was standing in the hallway, reached into his pocket and gave our client the bus money to go home. I was struck by the simplicity of the act and the purity of the gift. I knew at that time I had to be a trial lawyer. After Army duty, I returned to the University of Florida’s law school. I have been a trial lawyer for 35 years. Joe Durocher’s act David L. Holbrook of kindness on that day may not be significant or even a memory to him, but I know theBriefs January 2011 Vol. 79 No. 1

it is a forever moment to two men at the time... one, an old man, who received a gift of mercy – the other, a young man, who saw the gift of a lawyer taking off his cloak and going the second mile. I am reminded of that moment to this day. This anecdote made me reflect on the quiet deeds that have happened throughout the 50 years of Legal Aid’s history. Carrying the torch of those like Joe Durocher, who have gone before us, the Legal Aid Society’s staff, volunteers, and supporters go the second mile without even realizing it. I have witnessed advocates running to court at the drop of a hat to help someone in a dire situation. It warms my heart to see supporters give their lunches to a hungry client or provide clothing to those needing it. Frequently, I have seen staff provide a stuffed animal or treat to tired children as mom and dad try to manage their crisis. With the holiday season over, we take this opportunity to offer each and every one of you a healthy and prosperous 2011. May you revel in the excitement and joy that comes with going that second mile. If you are looking to help us go the second mile for a client in need, please consider: • Making a corporate and/or personal donation so we can ensure that the promise of justice is a reality for all, not just for those who can afford it. • Celebrating our 50th jubilee year with us by attending the Orange County Bar Association Gala on April 16, 2011. Watch the Orange County Bar website for details. For more information about how you can further support the mission of the Legal Aid Society of the Orange County Bar Association, Inc., contact Donna Graf, Development Manager dgraf@legalaidocba.org or call 407-841-8310 x 3150.

www.orangecountybar.org

Donna A. Graf is Manager of Development for the Legal Aid Society. She has been an OCBA member since 2008.

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YLS on the move Welcome 2011!

n Saturday, November 6, 2010, the YLS brought together food, fun, family and friends for its annual Fall Family Fun Day event!  The YLS cranked things up by providing food from the acclaimed 4 Rivers Smokehouse. The afternoon was filled with fun family activities that included everything from a bounce house to cotton candy.  Special thanks to our fearless organizer, Tony Sos, and our sponsors, the YLS and Dellecker Wilson King McKenna & Ruffier, LLP, for breathing new life into this fun annual event!  Young lawyers and proud Gator fans put on their orange and blue for the Third Annual YLS Gator Bus Trip. Bright and early on November 13, 2010, the bus wheeled out of downtown Orlando and headed for Gainesville, where we watched the Mighty Gators take down the Ol’ Ball Coach and South Carolina! Always an event to remember, the trek was wellattended and enjoyed by the whole busful. Many thanks to event chair Bart Vickers! For the Holiday Happy Hour, the YLS pitted civil attorneys against criminal attorneys to see who could show up in greater numbers. Over 100 people attended the Holiday Happy Hour on

Jacquelynne J. Regan

holiday season. Special thanks to Kellie Symons and Melissa Cupps Battles for coordinating our Angels.  Holiday parties abounded in December, but don’t forget that our annual Holidays in January program is coming up! Mark your calendar for Tuesday, January 18, 2011, and plan to join us at Urban Flats for this very special Wine-Down, benefiting children in our community. Every year, thousands of deserving children have little or nothing to bring them joy during the holiday season. That’s why the YLS collects books, toys and educational tools for the children in our area. This year, our Holidays in January program will benefit the children of the Boys & Girls Club, United Cerebral Palsy and the Children’s

December 9, but in the end the civil attorneys edged out the criminal attorneys to take the prize! One lucky civil attorney won a great pair of center court Orlando Magic tickets! Many thanks to Doug Martin for organizing the event, the Citrus Club for hosting the event and to Dellecker Wilson King McKenna & Ruffier, LLP for donating the Orlando Magic tickets. In December, the YLS brightened seniors’ holidays by partnering with Seniors First, a non-profit that enables seniors to remain living independently in their own homes, for the organization’s Holiday Shoebox Gift Drive. Spearheaded by Melanie Griffin and Jacquelynne Regan, the YLS filled shoeboxes wrapped in bright holiday packaging with fleece throws and gift cards. Seniors First was thrilled to receive the packages, and seniors who otherwise would not have been remembered received a gift during the holidays. Thank you to all of the young lawyers who donated to this project and made it possible! The YLS helped to make this holiday season brighter for the children of Rock Lake Elementary by lending its support to the CFAWL-sponsored Angel Tree Project. By providing holiday gifts for the deserving children of Rock Lake Elementary, YLS brought some cheer to children who may not have experienced the joy of unwrapping a gift this

Oncology Wing at Arnold Palmer Hospital. If you are interested in

helping to plan Holidays in January this year, please contact Kimberly Lopez at kimberly.lopez@akerman.com or Jacquelynne Regan at reganjj@lowndeslaw.com. If you want to find out more about the Young Lawyers Section and its committees and events, please call me at 407-418-6438 or email me at reganjj@ lowndes-law.com. If you are not receiving the YLS email blasts, send an email to me or admin@ ocbayls.org to sign up! Jacquelynne J. Regan is an attorney with Lowndes, Drosdick, Doster, Kantor, & Reed, P.A. She has been a member of the OCBA since 2007.

Forty-three Gator fans hopped a bus to Gainesville for the YLS’s annual Gator Bus Trip on November 13 to see the Gators play South Carolina.  As always, attendees had a great time!  Many thanks to Bart Vickers, event chair.

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HONEYWELL MEDIATION & Other Alternative Dispute Resolution Services

Do you know your mediator’s background and experience? You should. Any mediator’s acceptance is critical to increasing communications between parties where communications have ceased. Acceptance is almost always based upon each person’s appraisal of their mediators’ background and experience. Visit my website: www.honeywellmediation.com to find my online schedule, who I am and what I offer you and your client who may be seeking success without trial. My unique credentials and experience can be a useful and valuable added resource in finding resolution to your client’s dispute.

• Certified Circuit Civil Mediator • Certified Federal Court Mediator • Board Certified Civil Trial Lawyer • Panel Member, Mediation, Inc. Call Honeywell Mediation /Mediation, Inc: Winter Park: 407-647-5155 Orlando-Central Florida: 407-294-7000 Statewide-National: 800-741-7000

Orange County Bar Association

Election Notice

Election of Officers and Members of the Executive Council of the OCBA The following positions are open for election: Vice President / President-Elect (1-year term) Treasurer (1-year term) Secretary (1-year term) Three (3) Executive Council Seats (3-year term) Election of Trustees of the Board of Trustees of the Legal Aid Society of the OCBA, Inc. The following positions are open for election: Two (2) Board of Trustees (3-year term)

Election of At-Large Members of the Board of Directors of the Young Lawyers Section of the OCBA The following positions are open for election: Five (5) At-Large Board Members (2-year term)

Neutral, convenient conference facilities on Lee Road in Winter Park. Available anywhere in Central Florida without travel charge. Dan H. Honeywell

Anyone interested in running for any of these positions should file a written petition at the Association office, 880 N. Orange Ave., Orlando, FL 32801, signed by not less than five (5) members of the Association. Blank petitions are available at the Association office and on the website at www.orangecountybar.org. Petitions must be received no later than 5:00 p.m. on Friday, February 4, 2011. Petitions may be mailed or couriered to the Association office at the above address. Nominees must endorse their written acceptance on the petition and may NOT accept nominations for more than one (1) office. No nomination for the office of Vice President shall be accepted unless the nominee has served on the Executive Council at least one (1) year. Thereafter, the nominating petitions will be canvassed and tabulated by the President and Secretary, who shall thereupon certify the names of all members who have been properly nominated. Voting shall be by secret ballot mailed to each Regular and Judicial Honorary Member of the Association on or before Tuesday, March 1, 2011. Voted ballots must be returned to the Association office no later than 5:00 p.m., Thursday, March 31, 2011. In order for your vote to be counted, you must sign and print your name on the back of the return envelope. Mail or bring voted ballots to the Association office, 880 N. Orange Ave., Orlando, FL 32801.

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www.orangecountybar.org

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YLS Oath Administration & Reception September 27, 2010  • Orlando City Hall

Sponsored by M&I Bank and Marsh U.S. Consumer, a service of Seabury & Smith, Inc.

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fearless When the situation gets intense, some elect to sit it out,

we are

rIleY alleN driven . focused . fearless

LexisNexis AV Preeminent Rated and named one of the 500 Leading Lawyers in America by Lawdragon Magazine for three years straight, Riley Allen continues to achieve verdicts and results that are unprecedented in his field. Riley’s practice is devoted to complex civil litigation related to catastrophic personal injury and wrongful death, dangerous products, whistleblower litigation & consumer fraud.

theBriefs January 2011 Vol. 79 No. 1 PM1_thebriefs_fearless_final_test.indd 1

www.orangecountybar.org

PAGE 17 11/15/2010 6:00:34 PM

YLS 19th Annual Charity Golf Tournament

Hole Sponsors

MileStone Reporting, Inc. Digital Legal Services * SunTrust Bank Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A. * Ron Fleming Video Productions, Inc. First Choice Reporting & Video Services Presentation Group ProServe USA, Inc. M&I Bank Jarrett-Gordon Ford Legal Talent, LLC Central Florida Legal-Ease GrayRobinson Estes, Ingram, Foels & Gibbs, P.A. * Esquire Deposition Solutions Lovett Silverman Construction Consultants, Inc. * Orange Reporting, Inc. Beusse Wolter Sanks Mora & Marie, P.A. Dellecker, Wilson, King, McKenna & Ruffier, LLP Shutts & Bowen, LLP

Game Sponsors

Judge Bob LeBlanc Riesdorph Reporting Group Liz McCausland, P.A. Newsome Law Firm * Also a Game Sponsor

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October 1, 2010 * Reunion Golf Resort and Club, Wyndham Grand Resort

Photos by Ron Fleming  Video Productions

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Food and Drinks included with price of admission.

Price: $35 for private practice attorneys; $30 for solo practitioners, law students, and government attorneys. Price will increase to $40 after RSVP deadline, if space is available. Questions? Email Karen Persis at Kpersis@therosenthallaw.com. Mail your check (payable to OCBA) to the attention of Karen Persis at The Rosenthal Law Firm, 4798 New Broad Street, Suite 310, Orlando, FL 32814. You must Include a list of your attendees.

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Serving the Legal Profession. Serving the Community.

Sunny Lim Hillary

Join 3,000 of your colleagues in one of the State’s fastest growing and most innovative Bar Associations! The OCBA offers unparalleled benefits:

4Free monthly Speaker Series Luncheons 4Free listing in the Annual Membership

Directory including your photo, name and firm contact information, phone and fax number, and email address

4Free issues of The Briefs magazine 4Free committees and sections, including our award-winning Young Lawyers Section

4Sure-fire ways to build your practice -

including The OCBA Lawyer Referral Service

4Discounts on seminar registration fees and the purchase of CLE tapes

4Discounts on room rental for meetings or

receptions at our beautiful downtown facility

4Discounts on advertising in The Briefs,

the Annual Membership Directory and purchasing member mailing labels

4And other benefits, including opportunities

to attend dozens of social events, participate in community service projects, network with colleagues, publish substantive articles, lead a committee and receive preferred vendor discounts!

Invite your colleagues to join the OCBA today! Go to www.orangecountybar.org to join online and to see our calendar of upcoming events, seminars and activities! For additional information, contact the Membership Manager at 407-422-4551, ext. 225. theBriefs January 2011 Vol. 79 No. 1

nce again, the Central Florida Association for Women Lawyers (CFAWL), the Greater Orlando Asian American Bar Association (GOAABA), and the Hispanic Bar Association of Central Florida (HBACF) are doing great things in and for the local community.

Florida, featuring a wide selection of wines to sample, as well as a silent auction. Volunteers are needed!  To get involved or make a donation to the silent auction, please contact Bridget Labutta at blabutta@addmg. com or Maytel Bonham at mbonham@trevettandbonhamlaw.com.

CFAWL The 2010 CFAWL Community Outreach Fair was a huge

GOAABA

success!  On November 2, 2010, the local community gathered at the Orlando Shakespeare Theater and learned about non-profit organizations in the area and opportunities for getting more involved, including donating and volunteering. Special thanks to the members of CFAWL who organized this event. The Third Annual Rock Lake Elementary “Teach In” was an achievement! Every year, Orange County hosts a “Teach In,” where members of the local community are invited into Orange County classrooms to share their experiences with students about how to choose a career, how to set long- and short-term goals, and how to prepare academically in order to achieve those goals. For the third year in a row, CFAWL members were invited to “teach” 3rd, 4th, and 5th grade classes at Rock Lake Elementary School on November 17, 2010.  Special thanks to Melanie Griffin, CFAWL’s President-Elect, for organizing this great event.   Mark your calendars now for the much-anticipated Professional Women’s Exchange (PWE), which will be held

on February 16, 2011, at the downtown Crown Plaza Hotel.  PWE is a unique networking event for professional women working in and around Central www.orangecountybar.org

On November 12, 2010, GOAABA hosted a Social Networking Breakfast at White Wolf Café. Both members and non-members of GOAABA came together to build working relationships not only to reach new clients, but also to offer a more complete line of legal services to existing clients. Special thanks to Lisa Gong for organizing this great event! HBACF

On October 23, 2010, at the Hispanic Heritage Scholarship Fund “Gowns and Guayaberas Gala,” the Hispanic Bar As-

sociation Scholarship Fund

awarded a $5,000 scholarship to FAMU College of Law student Jessica J. Gonzalez-Monge.  Ms. Gonzalez-Monge’s application included information about her academic achievements and reflected her desire to help Hispanic immigrants when she becomes an attorney. The funds for this scholarship were raised through the 2010 Scholarship Night event, and matching contributions were made by the Hispanic Heritage Scholarship Fund.  Congratulations to Ms. Gonzalez-Monge and best wishes for her continued success in law school and as a young lawyer in Central Florida!  Sunny Lim Hillary, Hillary, P.A., has been a member of the OCBA since 2005.

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PARALEGALpost

Paralegal Membership in Local Bar Associations Linda McGrath Cruz, FRP, ACP

higher level of professionalism not only by meeting fellow paralegals but by learning from knowledgeable speakers and interacting with community leaders at every opportunity. As we attend CLE courses, we can interact with others in the field and stay up to date with current events, changes in paralegal regulations, new laws and court procedures, educational trends, and so much more. The opportunity to network is another significant benefit for paralegals who belong to a local bar association. It’s one of the best ways for us to land our dream job and is a much better method of job seeking than cold calling or browsing the classifieds. Even if you aren’t in the market for a new job, you may be surprised at how networking can further your career. We can enjoy the camaraderie of fellow paralegals and learn from their personal and professional experiences, as well as gain valuable insight from the attorneys, judges, administrators, and other legal professionals who attend events or seminars. In addition, attorneys and paralegals need to come together to support the local legal community. While we need to seize this rich opportunity by becoming proactive in promoting our firms, we also need attorneys to support our educational and professional goals. We can advocate for paralegals and obtain these benefits by getting out, being involved, and becoming more than nameless faces in the paralegal crowd. The rewards are too great to pass up. If you are not a member of the OCBA, join now! If you have colleagues who are not members, please encourage them to join and become involved in our great bar and fantastic Paralegal Section!

Joining the OCBA is a dynamic way for us to highlight our accomplishments and professionalism and invest in our future.

he American Bar Association endorsed the use of paralegals in 1967. Since then, the paralegal profession as a whole has struggled to advance its position and gain a much-deserved level of professionalism and respect in the legal community. It is an exciting time for paralegals in Florida. While some attorneys still expect us to make their coffee and pick up their dry cleaning, many of us have been able to take huge steps forward in our careers. There are opportunities today that were not available to us even five years ago, such as the opportunity to become a Florida Registered Paralegal with The Florida Bar and to become an active member of our local bar associations. The Orange County Bar Association (OCBA) was founded in 1933 and several years ago started accepting paralegal members, giving us many of the same opportunities afforded to attorney members. We take great pride and feel much accomplishment in becoming part of an organization that has been around for more than three-quarters of a century.

It is much more common today to find local bar associations that accept paralegal members than it has been in the past. For example, the Dade County Bar Association (DCBA) took this significant step forward in April 2010, when it created a Florida Registered Paralegal Committee. The DCBA FRP Committee is dedicated to providing the same opportunities to its members as we do. Based on our own experiences, members of the OCBA Paralegal Section are in a position to serve as a source of information and encouragement for other bars throughout the state that are interested in creating their own paralegal group. There are several key benefits available to paralegals who join their local bar associations. One is the ease and frequency with which we can access a variety of educational events. While it is always necessary to reach particular CLE goals, paralegals who join their local bar association gain a

Valuation & Litigation Services Business Valuations

Litigation Support

Linda McGrath Cruz is a Florida Registered Paralegal with the law firm of Arnstein & Lehr, LLP and the Vice-Chair of the DCBA FRP Committee. She has been a member of the OCBA since 2010.

Forensic Accounting

Adam T. Magill, MBA, AVA, CBA 801 Magnolia Ave, Ste 304, Orlando, FL 32803 407-233-4180 / 407-233-4182 Fax www.valuation-litigation.com / info@valuation-litigation.com PAGE 22

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theBriefs January 2011 Vol. 79 No. 1

Kimberly Sands Dedication of Orange County Courthouse Courtroom 12D in memory of Judge Bob Wattles, October 22, 2010

Chief Judge Belvin Perry, Jr. Judge Marc L. Lubet

Richard Lord

PUBLISH YOUR LEGAL NOTICES in the Gulf Coast Business Review

Michelle Jernnigan

Finding the road to resolution requires zealous preparation. Upchurch Watson White & Max

The Weekly Newspaper for Gulf Coast Business Leaders

uww-adr.com

Call: (941) 906-9386 | Visit our website: www.review.net theBriefs January 2011 Vol. 79 No. 1

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Quality. Experience. Integrity. That’s us in a...

...well, you know.

Courtesy: Marc Jacobs, Esq., Michelman & Robinson, LLP, Litigation Partner PAGE 24

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Barry Trial Team – MSU Champs

he Trial Team from the Barry University Dwayne O. Andreas School of Law won the Michigan State University National Trial Advocacy Competition that featured 26 law schools from around the United States. The win was Barry Law’s fourth title in a national contest in the competitive Trial Team arena since 2008.

Mike Orfinger

Michael Kraynick (coach), Elizabeth Rosado, Reem Elkhaldi, Michael Deen, Cheryl Gregory, and John Beamer (coach).

Barry Environmental Justice Summit

early 100 lawyers, law students, academics, and local citizens attended the Barry University Dwayne O. Andreas School of Law’s second Environmental Justice Summit held on Oct. 8, 2010. The summit, “Collaborating to Achieve Environmental Justice,” was presented by the law school’s Environmental Responsibility Committee and three student organizations: the Environmental Law Society, the Black Law Students Association, and the Hispanic American Law Students Association.  The summit was funded in part by the Environmental and Land Use Law Section (ELULS) of The Florida Bar.

Leticia M. Diaz, Barry Law dean, (left) and Jeanne Zokovitch, director of the Earth Advocacy Clinic at Barry Law, welcomed Dr. Robert D. Bullard, director of the Environmental Justice Resource Center at Clark Atlanta University, as the keynote speaker at the Environmental Justice Summit.

Sandra Upchurch

John Briggs

Finding the path to common ground requires relentless perseverance. Upchurch Watson White & Max uww-adr.com

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Amway Center Opening & Tour October 16, 2010

Orlando Magic vs. Chicago Bulls

Amway Center

Scott McBride, Sara DuChene, Tom DuChene, Sam Arocho

Bill Davis Brant Bittner Mente Piccoli Jack Lensky John Fisher

Patrick Burke Mary Ann Morgan

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Presentation Skills

for Lawyers

Do You Look Like You’re Lying?

et’s start with a few assumptions about your next presentation or conversation. First, let’s assume that you have done your research and have learned everything you should know about the discussion topic. Second, let’s assume that you’ve got a good memory and a good vocabulary, so you’ll be able to remember and describe everything that your listener needs to know about your topic. And finally, let’s assume that you’re going to tell the truth. With all of those assumptions, you probably think that your listener will automatically believe you, right? Wrong. The sad reality of the situation is that, even when you’re telling the truth, you can’t be guaranteed that people will believe you.  That’s because, even when you’re telling the truth, you can still look like you’re lying.  And if someone thinks you’re lying, then you are. As lawyers, we used to be cloaked with a presumption of honesty. People could assume that what we said was true simply because we were the ones saying it. But unfortunately, sometime during the past millennium or two, a few members of our profession made too many withdrawals from the credibility bank, and our profession no longer enjoys that presumption of honesty. That’s why it’s important for us to not only tell the truth, but to look like we’re telling the truth when we speak. The last thing you want to do when you’re speaking is to give your audience a reason not to trust you. Actions speak louder than words, so one of the most important things you want to do when speaking is to avoid any distracting behaviors that will prevent your listener from focusing on your message. If you don’t carefully monitor your nonverbal messages, you can send your listener a completely contradictory message to the one you intended. One of the most notable examples of nonverbal behavior destroying a speaker’s message arose during the 1992 presidential debates between George Bush, Bill Clinton, and Ross Perot, when Bush was caught on camera glancing down at his wristwatch in the middle of the debate. It only took an instant, but in that moment, with a casual glance of his eyes and flick of his wrist, he managed to subvert everything else that he said in the debate. Despite investing hundreds of hours crafting his message and preparing for the debate, hardly anyone remembers what he said about government programs or taxes or defense spending. Instead, the message most people remember from those debates is that he looked impatient and couldn’t wait for the debates to be over. When added to the pre-existing public perception that he was out of touch with average Americans, that single gesture may have been enough to persuade voters that Bush didn’t care and shouldn’t be reelected. Hopefully, you’ll never have a moment where a casual, nonverbal behavior has the unintended consequence of torpedoing your career aspirations. But chances are that you will have moments when the person you’re hoping to persuade makes a decision about whether or not to believe you. When those moments arise, you want the person to base his or

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her decision on your well-crafted message and your personal integrity, not on an unintended nonverbal behavior. If you want to avoid looking dishonest (or help your client avoid looking dishonest), here are a few behaviors that you might want to avoid: • Touching your face Elliott Wilcox • Stroking your hair • Playing with your jewelry or a watch • Wringing your hands • Rubbing your palms on your legs • Pursing your lips • Blocking your eyes (closing them tightly, covering your eyes with your hands) • Turning your body away from the questioner • Evading the question; not giving direct answers Finally, your level of eye contact is going to be one of the most important behaviors that your listener will evaluate when deciding whether or not to believe you.  Most of us have been raised on the adage, “Never trust someone who won’t look you in the eye.”  Of course, in some cultures, making eye contact is disrespectful, so lack of eye contact, on its own, isn’t enough to determine whether or not someone is lying.  However, if you’re maintaining eye contact during other parts of your conversation, it’s probably going to seem like you’re lying if you suddenly stop making eye contact during the more damaging or difficult parts of the conversation.  While it’s impossible to completely revamp your body behaviors (since you’ll end up acting artificially, which makes it even more likely that people will assume you’re lying), at least you can minimize some of the more obvious negative body language. One of the best ways to understand how body language affects your credibility is to videotape yourself during a practice speech or mock presentation, and then sit and watch the entire video from beginning to end.  Many people have never seen themselves on video before, so you might be surprised at how distracting some of your behaviors appear. If you can eliminate those distracting behaviors, you won’t look like you’re lying, and you can be assured that the only messages you’re sending are the messages you intend to send.

Elliott Wilcox is the editor of Trial Tips Newsletter, which is read by more than 6000 people every week. To sign up for your free subscription, please visit www.TrialTheater.com

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Family Law Committee continued from page 6

f. Creation of Modifiable/Terminable Duration Alimony Florida Statute § 61.08(7) provides for a new alimony category – durational alimony. The court may award support for a set period of time in regard to short-term or moderate-term marriages when permanent periodic alimony is not available. Termination is based upon the death of either party, the remarriage of the party receiving support, or a substantial change in circumstances. While a modification of this type of alimony award is also based upon a substantial change in circumstances, the length of an award “may not be modified except under exceptional circumstances and may not exceed the length of the marriage.” We are left with little direction, until case law is established, to help define “exceptional circumstances.” g. Re-addressing Modifiable/ Terminable Permanent Periodic Alimony Permanent periodic alimony is reestablished in Florida Statute § 61.08(8). The statute establishes that permanent periodic alimony is not only applicable to longterm marriages, but is also applicable in cases where the court considers the factors for a moderate-term marriage. Permanent periodic alimony could also possibly be applicable in a short-term marriage upon a finding of “exceptional circumstances.” Termination of permanent periodic alimony occurs upon the death of either party or upon the remarriage of the receiving party. A permanent periodic award may be terminated or modified pursuant to Florida Statute § 61.14 based upon a substantial change in circumstances.

II. Allocation of Child Support for Multiple Children – Florida Statute § 61.13 – Effective October 1, 2010 Florida Statute § 61.13 addresses circumstances in which there are multiple children provided for in a single child support order. The court is required to PAGE 28

calculate child support at the time of the initial action, showing the actual decrease in child support based upon emancipation (aging out) of each child until termination of the entire support order. At the time of writing this article, the Florida Supreme Court is drafting forms for the court to use for this statutory change. This statute does not prevent other forms of modification based upon a substantial change in circumstances.

III. Imputation of Income in Support Cases – Florida Statute § 61.30 - Effective October 1, 2010

to get to the forty percent (40%) would stop, and parents would start looking at what schedule would work best for the children. However, there is a real concern that calling twenty percent (20%) timesharing a “substantial amount of time” is a joke. Finally, the downward child support modification after emancipation of each child with a set dollar figure is difficult to do accurately. An example would be a family that is receiving credit for day care of young children who will no longer be in need of that level of care when the older child is emancipated. In reality, the parent paying child support could be paying $600 a month or more for day care for a twelve (12) year old.

Florida Statute § 61.30 codiLori Caldwell-Carr, fies the imputation of median Esq. is the founder of income. If an individual does not appear InFocus Family Law Firm, at a support hearing, or an attorney can P.L. and has been a member establish through competent substantial of the OCBA since 2005. evidence that the individual is voluntarily unemployed, the court can impute to that individual the U.S. Bureau of Census median income of year-round full-time workers as derived from current population reports or replacement reports published by the U.S. Bureau of Census. The current median income in ORANGE COUNTY COURTHOUSE the United States, which includes everyone (all regions of the country, all ages, all races and both sexes), is $41,945 per year. Additional changes include § 61.30(b)(5), which modifies the previous child support statute by eliminating the language that The fast and easy way to gain entry to reduced day care by twenty-five percent the Orange County Courthouse s (25%) when calculating child support ss Ca rdon Ac ceattorneys OCBA Online ➽ Great Co ur fort trial the run numbers, and § 61.30(b)(8), which & s w. se No ur Co ai la ble Av ➽ Saves Jan time 0 – Dec. 31, 2011. changes the definition of a “substantial Services . 1, 201 Valid amount of time” from forty percent ➽ Saves money $75. (40%) to twenty percent (20%), which afal support staff Attorneys and leg at ➽ Only $75nload an application dow fects the gross-up child support calculation. tybar.org www.orangecoun d by mai ➽ Card good through Dec. 31,l!) 2011 can be processe Watch out for the Glitch Bills (Most applications www.

Courthouse Access Card

site at

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up to

ar.org. Sign orangecountyb There has already been concern expressed lic or renew your become a Notary Pub among family law judgescom and practitioners . Conduct mission R r Florida MV about the imputation of you income based Jane Q. searches online. Public upon the U.S. Bureau ofRefCensus median attorney er your clients parenting Bar assOCiatiOn income. Some family lawto the judges have Orange COunty aCCess Card COurthOuse course or the traffic openly expressed that they will be safety course. It’s and venientof unwilling to impute this high easy, conlevel e! cost effectiv income without some evidence that ng ntinui $42,000 is a reasonable salary that could n... BA Co Orange County Bar Association at ange County Bar associatiogGo to OC the Orunemployed n io at uc Ed l etin ga me t be earned by the voluntarily Le orangecountybar.org and download The place for your nex do party. application Don’t Let in downtown Orlan will help Our experienced staff Your CLE ting mee next your you plan When the twenty percent (20%) gross-up You don’t need to be a member l Orange wathe Reneof every step of the way! te Slip Up County Bar Association to purchase a card! Da was initially discussed, there was a hope tings Mee s sines yBu On You! ing that with such a low gross-up the gameyCompany traintings Good only for the Orange County Courthouse yPartners’ Mee the OCBA today. entry Purchasing card is optional for from courthouse of counting the number of overnights rder the latest CLE material Services include ydepositions courses covering a wide Issued: 01/01/2010 Expires: 12/31/2011

Get your card today! ger, Membership Mana l Stacy Hastings, For details, emai t.org at stacyh@ocbane

room set-up, yMediations

www.orangecountybar.org teleconferencing,

yarbitration s Wi-Fi, AV, and yseminars food & beverage. ysmall Business retreats

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Select from more than 60 ion to general credit, many range of legal topics. In addit cation credits. Courses certifi programs offer ethics and January 2011 Vol. 79 DVDs. are available on CDs and seminars sponsored by our OCBA also hosts dozens of ors each year. Be sure to committees and outside vend rangecountybar.org for

theBriefs

No. 1

Rainmaking 101

hat is the one skill many of you would-be rainmakers are missing?

The willingness and ability to set specific and measurable marketing goals on a regular basis. If you examined your marketing approach at the end of each year to measure its effectiveness, you’d be surprised at the impact on your results. For one thing, you’d know which activities and behaviors worked and which didn’t. You’d have the opportunity to refine what worked and eliminate everything else. While we agree with Yogi Berra when he said, “It’s tough to make predictions, especially about the future,” it isn’t impossible to set meaningful goals and achieve something close to what you intended. To do this you must first recognize that the legal landscape in which you live is not static. Referral sources dry up or move; you are joined by a new partner; legislation changes the services you provide; you take on a newsworthy case; or you decide to launch your own practice. These are just a few of the many changes that can occur over the course of a year in your career. Fortunately, changes like these are fodder for the creative marketer. Depending on what’s happened in your year, you may need to adjust your marketing goals to compensate for a lack of referrals, to feature a change in the services you offer, or to publicize a new firm.

Take the opportunity to retool your marketing efforts at least once a year. To point you in the right direction, read through the ideas listed below and extrapolate from them goals that are relevant to your practice.

Mark Powers & Shawn McNalis that send you your best business – and a second tier who send you lesser business. Every year you’ll want to review who is on your list and plan to add people to both tiers. Eighty percent of your marketing activity should be focused on this effort. Listed below are activities that will support you in building rapport and relationships with your referral base. Read through these suggestions and plan to: ❚ Spend more time with your referral sources to get to know them better Sample Goal: Dedicate three lunches a week to cultivating referral sources ❚ Thank your sources for any referrals they send – whether or not the client engages you Sample Goal: Put thank you cards out on my desk to ensure I’ll use them ❚ Invite your referral sources to events they’d enjoy, or give them tickets * Sample Goal: Purchase season tickets and give them to different referral sources ❚ Introduce your referral sources to people they can network with Sample Goal: Use my marketing lunches to introduce referral sources to one another (This is especially useful if you don’t have a lot of business you can send to them – and only applies when referrers are not competitors.) ❚ Refer business to your referral sources, whenever possible Sample Goal: Reward my referral sources with business whenever I can ❚ Conduct satisfaction interviews to see how well your sources think you’re taking care of their referrals Sample Goal: I’ll use my marketing lunches to check in with my referral sources on their perception of my service

Referral Sources Once you determine who your primary or ideal clients are, identify those referral sources that are well-positioned to send you those clients. You’ll have both a top tier group – these are the people theBriefs January 2011 Vol. 79 No. 1

Marketing Goals – Part I

www.orangecountybar.org

Client Service To inspire more client referrals, focus on increasing your level of client service. ❚ Make clients feel more welcomed and taken care of during each visit to your office Sample Goal: Offer clients a selection of beverages when they arrive ❚ Enhance your level of communication with clients Sample Goal: Each client receives a check-in call on a regular (weekly, monthly) basis ❚ Build more rapport with key clients Sample goal: At the conclusion of each large case or matter, invite the client out to lunch to get to know him or her better and get feedback on your performance Next time we’ll continue discussing marketing goals that rainmakers are utilizing in their practices. * Although it is important to add a personal touch when expressing appreciation to referral sources including, in some cases, sending a meaningful gift, an attorney’s gestures must not violate Rule 47.2(c)(14) of the Rules Regulating the Florida Bar, which prohibits an attorney from giving anything “of value” to a referral source. Attorneys should consult with The Florida Bar if they have questions regarding the application of the rule. Mark Powers, President of Atticus, Inc., and Shawn McNalis co-authored How Good Attorneys Become Great Rainmakers and are Mark Powers featured marketing writers for Lawyers, USA and a number of other publications.To learn more about the work that Atticus does with attorneys or the Atticus Rainmakers™ program, please visit www.atticusonline.com or call 352-383-0490 or 888-644-0022.

Shawn McNalis

PAGE 29

New

JonathanD.EICHELBERGER

Regular

Edward ELKINS

Members Gerald W. ADAMS

401 E. Las Olas Blvd. Ste. 130-196 Ft. Lauderdale, FL 33301 Ashley M. BEAMAN

Bauer Family Law 5401 S. Kirkman Rd. Ste. 310 Orlando, FL 32819-7937 407-926-0255 David R. BEAR

Stovash, Case & Tingley 200 S. Orange Ave. Ste. 1220 Orlando, FL 32801 407-316-0393 Arianne BUCHANAN

P.O. Box 940542 Maitland, FL 32794 407-375-7899 Daniel J. BURNS

Beechner & Englert, PL 3855 Avalon Park Blvd. E. Orlando, FL 32828 407-512-4394 Alfred J. CRANER

Law Office of A. James Craner, P.A. 1217 E. Robinson St. Orlando, FL 32801 407-898-8880 Joseph N. DeBAISE, II

The Law Group of Joseph N. DeBaise, II, LLC 600 N. Thacker Ave. Ste. B 5 Kissimmee, FL 34741-4885 407-994-3975 Aaron D. DELGADO

Damore, Delgado, Romanik & Rawlins 227 Seabreeze Blvd. Daytona Beach, FL 32118 386-255-1400 Jeffrey A. DeTHUIN

22777 Sleepy Brook Ln. Boca Raton, FL 33428-5727 561-245-0380 PAGE 30

16654 E. Davenport Rd. Winter Garden, FL 34787

Law Office of Edward Elkins P.O. Box 149533 Orlando, FL 32814-9533 407-279-1231 Brooke L. GIRLEY

The Girley Law Firm P.A. 125 E. Marks St. Orlando, FL 32803 407 540-9866 Kimberly A. HARCHUCK

Walters Law Group 781 Douglas Ave. Altamonte Springs, FL 32714 407-975-9150 Marshall S. HARRIS

2443 Via Sienna Winter Park, FL 32789 407-740-7378 ThomasD.HIPPELHEUSER

Law Offices of Brent C. Miller, P.A. 205 E. Burleigh Blvd. Tavares, FL 32778 352-343-7400

Terrica R. JENNINGS

2566 Lake Debra Dr. Apt 27-114 St. Petersburg, FL 32835 202-460-4446 Clint L. JOHNSON

The Johnson Law Group, PLLC 1800 Pembrook Dr. Ste. 200 Orlando, FL 32810 407-678-7100 Ext. 223 Gregg A. JOHNSON

2454 Westminster Terr. Oviedo, FL 32765 407-542-3191 Melissa LAMBERT

P.O. Box 472 Orlando, FL 32802-0472 Shannon A. LIGION

Ligion Law Group, LLC 126 E. Jefferson St. Orlando, FL 32801 407-897-7426

Jessica E. McINTEE

Christine V. REILLY

Jessica C. MILES

Brandon ROSE

Harris & McIntee, P.A. 301 E. Pine St., Ste. 150 Orlando, FL 32801 407-648-2871 421 E. Central Blvd., Apt. 1215 Orlando, FL 32801-1997 407-765-2775 Brent C. MILLER

Christine V. Reilly, P.A. 221 Berkshire Dr. Cocoa, FL 32922 321-504-3237

Cloninger & Files 1519 W. Broadway St. Oviedo, FL 32765 407-365-5696

Law Offices of Brent C. Miller, P.A. 205 E Burleigh Blvd. Tavares, FL 32778 352-343-7400

Adam G. RUSSO

Thomas B. MILLER

John SCAROLA

Paxton & Smith, P.A. 1615 Forum Pl., Ste. 500 West Palm Beach, FL 33401 561-684-2121 Nayef A. MUBARAK

The Johnson Law Group 1800 Pembrook Dr. Orlando, FL 32810 407-678-7100

John N. MURATIDES

Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. 401 E. Jackson St. Tampa, FL 33602 813-222-5028

Myers & Eichelberger, P.L. P.O. Box 323 Gotha, FL 34734-5118 407-926-2455 Searcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Blvd. Palm City, FL 34990 561-686-6300 Clark W. SMITH

Paxton & Smith 1615 Forum Pl. Ste. 500 West Palm Beach, FL 33401 561-684-2121 Ashley M. TENNISON

2078 Sawgrass Dr. Apopka, FL 32712 352-455-3972

Erin J. O’LEARY

Karla E. VALLADARES

Jose G. OLIVEIRA

Kyan M. WARE

Brown, Garganese, Weiss & D’Agresta, P.A. 111 N. Orange Ave., Ste. 2000 Orlando, FL 32801 407-425-9566 Jose G. Oliveira, P.A. 121 S. Orange Ave., Ste. 1130 Orlando, FL 32801 321-445-9458 Christopher M. RAMSEY

Allen, Dyer, Doppelt, Milbrath & Gilchrist 255 S. Orange Ave., Ste. 1401 Orlando, FL 32801 407-841-2330 Patricia M. REGO

Dean, Ringers, Morgan & Lawton, P.A. 201 E. Pine St. Capital Plaza I Ste. 1200 Orlando, FL 32801 407-422-4310 Ext. 139

www.orangecountybar.org

Valladares Law Firm 133 Terra Mango Loop Ste. 200 Orlando, FL 32835 407-253-4550

State Attorney’s Office 101 Bush Blvd. PO Box 8006 Sanford, FL 32772-8006 407-665-6000

Associates

Colette CLIFTON

Unpublished address Paul W. ETTORI

330 W. 56th St. Apt. # 3N New York, NY 10019-4241 212-489-6505

theBriefs January 2011 Vol. 79 No. 1

Affiliates

MicheleA.RODON-CARVER

The Johnson Law Group 1800 Pembrook Dr., Ste. 200 Orlando, FL 32810 407-619-9936

Omaira P. ROMERO

DeLayne D. CARREON

Deanna S. CINTRON

The Johnson Law Group, PLLC 1800 Pembrook Dr., Ste. 200 Orlando, FL 32810 407-678-7100 Ext. 223 Lee KUSAK

Rissman, Barrett, Hurt, Donahue & McLain, P.A. 201 E. Pine St., 15th Fl. Orlando, FL 32801 407-839-0120 Michelle L. LINDSAY

Fishback Dominick 1947 Lee Rd. Winter Park, FL 32789 407-262-8400

Law Offices of Lynn B. Aust 1220 E. Livingston St. Orlando, FL 32803 407-447-5399 Office Manager 301 E. Pine St., Ste. 150 Orlando, FL 32801 407-347-6656 Joseph B. STEPHENS

Senior Analyst / CFLA 43 Sky Line Dr. # 3001 Lake Mary, FL 32746 407-369-6671

Michael A. COSTELLO

Melissa L. MARANTES

Lakisha A. DAVIS

Jamedra C. MORGAN

915 Sunwood Ln. Orlando, FL 32807-5932 352-551-4433 5426 Lake Margaret Dr. Apt. 1118 Orlando, FL 32812 321-615-5679

Kristy N. DIAZ RIVERA

P.O. Box 560374 Orlando, FL 32856-0374 407-234-3243 Jennie E. HAYES

Law Students

5236 Maxon Terrace Sanford, FL 32771-5440 386-837-3038

915 Sunwood Ln. Orlando, FL 32807

Lindsey A. HORN

Lee C. BOEPPLER

12716 Lexington Summit St. Orlando, FL 32828 305-322-4497 196 Sandlewood Tr. Winter Park, FL 32789 James A. MYERS

24120 Rialto Way Sorrento, FL 32776 407-756-7030

Paralegal Student

Shawn C. AUTREY

928 Wharf Ln. Apt. 101 Orlando, FL 32828 407-275-8155

8450 Gate Pkwy. W. # 216 Jacksonville, FL 32216 850-276-2898

Winter Wine Cheese Social

Come and join us at our annual post-holiday social event! Thursday, January 27, 2011 5:30 p.m. - 7:30 p.m. Orlando Tastings 111 N. Magnolia Ave., Orlando, FL Enjoy two glasses of quality wine or beer, plus an assortment of hummus, bruschetta, spinach and artichoke