Orange County Bar Association - The Briefs - September 2011 by Orange Co Bar Association Orlando

A Publication of the Orange County

Bar Association

Inside this Issue:

September 2011 Vol. 79 No. 9

Presidentâ€™s Message Special Thanks To Those Who Deserve It Most Thomas A. Zehnder

OCBA Luncheon Barry Richard, Esq. Counsel for The Florida Bar

Intellectual Property Committee Have You Talked to Your Clients about Google AdwordsÂŽ? Part II Ryan T. Santurri

Appellate Practice Committee War and Peace: Negotiating Battles and Peace Treaties through Checks and Balances, Strategies and Diplomacy Elizabeth C. Wheeler

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PAGE 1

Contents 3

President’s Message Special Thanks to Those Who Deserve it Most Thomas A. Zehnder

Federal Judicial Investiture The Honorable Roy Bale Dalton, Jr.

Editors’ Note

OCBA Luncheon Barry Richard, Esq. Counsel for The Florida Bar

Appellate Practice Committee War and Peace: Negotiating Battles and Peace Treaties through Checks and Balances, Strategies and Diplomacy Elizabeth C. Wheeler

2011-2012 OCBA Committee & Chairs

The Robert Mansbach Lawyer’s Literary Society Would You Like to Do More Reading for Fun? Jules S. Cohen

Intellectual Property Committee Have You Talked to Your Clients about Google Adwords®? Part II Ryan T. Santurri

The Florida Bar Foundation News

Referring a Client to a Financial Advisor? Ask These Questions First Michael H. Davis

YLS Columnist Jacquelynne J. Regan

SideBar Sunny L. Hillary

OFFICERS Thomas A. Zehnder, President Kristyne E. Kennedy, President-Elect Paul J. Scheck, Treasurer Nicholas A. Shannin, Secretary

Watch Your Step: Attorneys May Now Be Solely Liable for §57.105 Attorney’s Fees to Opposing Counsel! James C. Hauser

Paralegal Post The Three Rs – Reading, Writing, and Recognition Kathy Cook

EXECUTIVE COUNCIL Wiley S. Boston Mary Ann Etzler Elizabeth F. McCausland Nichole M. Mooney Jamie Billotte Moses Eric C. Reed Gary S. Salzman William D. Umansky William C. Vose Kimberly D. Webb Esther M. Whitehead Frank M. Bedell, Ex Officio LaShawnda K. Jackson, YLS President

Evaluating Hospital Corporate Responsibilities in Medical Malpractice Cases Samuel H. Steinberg, Ph.D., FACHE

Professionalism Award Nominations Sought

Side Bar Columnist Sunny Lim Hillary

Associate Editors Nick Dancaescu & Diana M. Serrano

YLS on the Move Jacquelynne J. Regan

Presentation Skills “I Think We Should Break Up” How to Stop Your Audience from Falling Asleep Elliott Wilcox

The Florida Bar News E-discovery Rules Approved by The Florida Bar Lawrence H. Kolin

Co-Editors Allison C. McMillen & Suzanne D. Meehle

Legal Aid Society What We Do ... Changing a Life Donna A. Haynes

the Briefs

w EXECUTIVE DIRECTOR Brant S. Bittner

Rainmaking Marketing Alliances – A Little Help from Your Friends Mark Powers & Shawn McNalis

w Communications Manager Peggy Storch

Announcements

Marketing Manager Mente Piccoli

New Members

Marketing Assistant William M. Remensnyder

Classifieds

Calendar Residential Mortgage Foreclosure Program 407-649-1833 880 North Orange Avenue • Orlando, FL 32801 (407) 422-4551 • Fax (407) 843-3470

DEADLINE INFORMATION

Advertising - 10th of the month prior to the month of publication Copy - 15th of the month six weeks prior to the month of publication 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: Mark LeGrand, Creative Director, Pro One Video; Derek Smith, Photographer, Sunshine Photographics, Inc.

Legal Aid Society Citizen Dispute Family Law Mediation Lawyer Referral Service Legal Placement Service Young Lawyers Section

ISSN 1947-3968

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407-841-8310 407-423-5732 407-422-4551 407-422-4537 407-422-4551 407-422-4551

the Briefs September 2011 Vol. 79 No. 9

President’sMessage

September 2011 Special Thanks to Those Who Deserve it Most

I Thomas A. Zehnder

recently had the good fortune of attending the OCBA’s staff retreat. The team-building event began with a lunch meeting, followed by a friendly (but highly competitive), randomly-assigned team bowling tournament. (Rest assured, I will reveal the victors at the end of this message!) Brant kindly asked me to lead off with some remarks about my plans for the OCBA this year and what I hoped we could accomplish. It quickly became apparent, however, that I was not the one who should be talking about the great things the OCBA does and about what it can do for our community. Instead, I learned far more from our wonderful staff about all that they do each day to make the OCBA the best voluntary bar association in the state. And, while as OCBA President I would certainly love to take the credit (that is, after all, what we presidents do best), make no mistake – our success is directly attributable to the outstanding men and women who work for the OCBA every day. It all starts with Brant Bittner, our Executive Director. Brant is renowned statewide for his visionary leadership. I can’t tell you how many times during just the first few months of my presidency I’ve learned of situations where executive directors of other bar associations looked to Brant for leadership and innovation. Just last month, Brant represented the OCBA at the National Association of Bar Executives meeting in Toronto. Brant was asked to speak, and he was the hit of the conference. And in August, while I was at the OCBA celebrating the one-year anniversary of the RMFM program (more about the program later), I learned that the executive director of the Broward County Bar Association was there to meet with Brant about one of our other outstanding programs! One of Brant’s particular leadership skills has been assembling (and keeping) the best bar staff in Florida. Brant would be the first to tell you that without them our OCBA would not be what it is today. At our installation and awards banquet last May, I remarked how the OCBA staff is the strongest, most cohesive group we’ve ever had. I was reminded of that fact at the staff retreat. This President’s Message is dedicated to the very fine people who work so hard for our organization, our legal profession, and our community. OCBA Staff Karen Fast – Membership Manager. Since Karen joined the staff, membership has grown

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to unprecedented levels. Karen’s creativity and can-do spirit in identifying new ways to improve the benefits of OCBA membership are amazing. Among many other endeavors, Karen has led the effort in developing our online Membership Directory and our online Career Center. (These are great; please check them out on the OCBA’s website at www.orangecountybar.org.) Norma Paradiso – Lawyer Referral Service Manager. What can I say about Norma that isn’t already well known – she is, quite simply, the best. Norma has made our Lawyer Referral Service the envy of the state. It is the most financially successful program of its kind statewide, second only to The Florida Bar’s referral program, which has a staff of 10 compared to our staff of two. Norma is incredible. We are so very fortunate to have her. Mente Piccoli – Marketing Manager. Mente primarily oversees our sponsorships, but she has also been actively involved in developing a new education initiative – Leadership Law – that we hope to launch early next year. On the sponsorship front, Mente has fostered alliances with several diverse businesses, each offering special and unique benefits to our members, including Westlaw, M&I Bank, Marsh, DEX Imaging, and the Orlando Magic. Mike Remensnyder – Accounting Manager. Mike maintains all of the OCBA’s accounts, books, and records, including those for the YLS and the Paralegal Section. Mike also provides critical management support for Brant when Brant’s duties require him to be out of the office. Mike is a steady, reliable, go-to employee who has served the OCBA faithfully for years. (And, he’s an excellent bowler to boot!) Maria Sanchez – Citizen Dispute Settlement & Family Law Mediation Manager. As head of our CDS/FLM programs, Maria coordinates one of our most important community services. CDS/FLM offers individuals the opportunity to use volunteer mediators to avoid the courtroom and resolve basic disputes. These programs are growing under Maria’s watch, and her recent outreach efforts to members of our Hispanic community have been nothing short of amazing. Peggy Storch – Communications Manager. Peg is at the center of virtually everything the OCBA does because she is the one who ensures the word gets out to our members and to the commucontinued page 24

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SpecialRecognition Federal Judicial Investiture The Honorable Roy Bale Dalton, Jr.

oy Bale Dalton, Jr. was invested as a United States District Judge for the Middle District of Florida on Friday, July 22, 2011, at the George C. Young United States Courthouse in Orlando. Chief Judge Anne C. Conway presided. The invocation was given by The Very Reverend Anthony P. Clark, Dean, St. Luke’s Cathedral, Orlando. Opening remarks and introductions were made by Justice Conway, United States Hon. Roy Bale Dalton, Jr. Senator Bill Nelson, American Bar Association Standing Committee on the Federal Judiciary representative Benjamin H. Hill, III, Former President of

The Florida Bar Mayanne Downs, and Darrell F. Carpenter, Esquire. Judge Dalton’s credentials were presented by Michael G. Grindstaff, Esquire, Former Chairman of the Florida Middle District Federal Judicial Nominating Commission. Presentations were also made by W. Drew Sorrell, Esquire, President of the Orlando Federal Bar Association, and Thomas A. Zehnder, Esquire, President of the Orange County Bar Association, on behalf of other local bar associations. The Honorable Peter B. Beer, Senior United States District Judge for the Eastern District of Louisiana, administered the Oath

Editor’sNote

ebruary is the month of passion – so we’ve decided to take a look at the “arts” in hearts!

What’s your passion? Do you play a musical instrument, sing with a group, or compose music? Have you acted in a play recently, or produced a film or script? Are you a fine or graphic artist? Are you a dancer or choreographer? If you’re a photographer, has your work been published? Maybe you’re a poet or novelist. Perhaps you’re a culinary artist. Send us a couple of paragraphs about your participation in an artistic endeavor – along with photos and captions!

of Office. The enrobing was conducted by members of the Dalton and Loflin families. The newly invested Honorable Roy Bale Dalton, Jr. gave remarks, and a reception was held for members of the judiciary, family, and friends immediately following closing ceremonies.

l a n o s r e P jury In Serious Lawyers for Serious Cases. ®

▼ Premises Liability ▼ Violent Crime/ Negligent Security

If your heart belongs to the law, send your ideas for substantive articles that explore the intersection of arts and the law or legal profession.

▼ Defective Premises Design or Layout

We’re looking forward to bringing you an exciting February 2012 issue, so contact us as soon as possible – but no later than November 1 – for publication consideration.

▼ Transportation Negligence

Allison McMillen, Co-editor allison@mcMillenlawfirm.com

Suzanne Meehle, Co-editor suzanne@meehle.com

Nick Dancaescu, Associate Editor Nick.Dancaescu@gray-robinson.com

Diana Serrano, Associate Editor Diana@bodifordlawgroup.com

Peggy Storch, Communications Manager peggys@ocbanet.org (Article submission deadline for February 2012 issue: December 15, 2011)

▼ Defective Products

▼ Medical Malpractice LeightonLaw.com 888.395.0001 Miami T Orlando

PAGE 4

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the Briefs September 2011 Vol. 79 No. 9

OCBA LuncheonSeptember 22, 2011 Barry Richard, Esq. Counsel for The Florida Bar

R Barry Richard, Esq.

ecognized by the National Law Journal in 2006 as one of “the 100 most influential lawyers in America,” Barry Richard has been identified as a lawyer with the power to “shape public affairs, launch industries, shake things up and get things done.” He is listed as a top litigation and appellate lawyer in Chambers and Partners USA Guide, four and three years running, respectively. Barry, who was selected as one of two National Law Journal Lawyers of the Year in 2001, has been noted for his “national reputation for compelling advocacy.” The New York Post has referred to the “trademark clarity and forcefulness” of his argument, and CBS anchor Dan Rather called his nationally televised argument before the Florida Supreme Court in the 2000 Bush-Gore litigation “brilliant.” Barry begins each representation with a careful analysis of the case, both factually and legally, to formulate strategy and tactics that maximize his client’s strengths and opponent’s weaknesses. He has assembled a core team of trial lawyers, including those from the firm’s other offices and associated firms, to handle complex commercial trials and manage massive discovery efforts that cross multiple jurisdictions and countries. Some of the more recent matters handled by his team include the representation of Alliance Capital Management Corporation (now Alliance Bernstein) in a $3 billion action brought by the Florida Board of Administration, the representation of the Royal Bank of Canada in the multi-billion dollar Enron shareholder class action pending in the Southern District of Texas, and the representation of AnheuserBusch in a $5 billion dollar action brought by a former distributorship.

of complex commercial litigation, appellate law, state and federal constitutional law, and government and election law. He is licensed to practice in Florida, New York, and the District of Columbia, and has been admitted pro hac vice as lead counsel in state and federal courts throughout the United States. Most recently identified in the 2006 edition of The Best Lawyers in America for his appellate practice, Barry has successfully argued three major cases before the United States Supreme Court, numerous cases before the Florida Supreme Court, and cases in all other state and federal appellate courts in Florida. Barry has argued many of the significant constitutional cases both in Florida and nationally over the past two decades. He has argued over 250 appellate cases nationally, has obtained successful appellate decisions in cases involving some of the most significant constitutional questions, and secured some of the largest judgments in Florida history. Barry’s honors include selection as a Fellow in the American College of Trial Lawyers, which limits its membership to one percent of the lawyers in each state and Canadian province, and the International Academy of Trial Lawyers, which limits its membership to 500 lawyers in the United States. In addition, he has been retained for more than two decades by The Florida Bar as its general litigation counsel and has been retained by the Academy of Florida Trial Lawyers (now the Florida Justice Association) to represent it before the Florida Supreme Court. continued page 16

Barry concentrates his practice, both jury and non-jury, in the fields

Sponsored by:

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Appellate PracticeCommittee War and Peace: Negotiating Battles and Peace Treaties through Checks and Balances, Strategies and Diplomacy

O Elizabeth C. Wheeler

n June 10, 2011, the Appellate Practice Committee of the OCBA, together with the Professionalism and Business Law committees, presented a major seminar that addressed issues common to all practices. The Appellate Practice Committee offered a lively discussion of the recent legislative proposals to alter the judicial branch of government in Florida. The committee also presented a panel of judges who discussed the importance of professionalism in trial and appellate courts and some distinctions between the two. Checks and Balances Moderated by Appellate Practice Committee member Stacy Ford, the panel consisting of former Florida Supreme Court Justice Charles T. Wells and committee members Barbara Eagan, John Hamilton, and Nick Shannin discussed the recent legislative proposals and the historic tension between the three branches of government. As the only current member of OCBA’s Legislative Affairs Committee, Nick presented an overview of the proposals and the outcome. Only a few of these bills ultimately received legislative approval. Proposed amendments to Article V of the Florida Constitution will be submitted to the voters at the next general election. The proposed amendments would limit the Supreme Court’s rulemaking authority, require Senate approval of a justice of the Supreme Court, allow the House of Representatives to review confidential files of the Judicial Qualifications Commission at any time, and provide that such files shall remain confidential until the House initiates impeachment proceedings. The panel discussed the historical context of these attempts to alter the judicial branch. Justice Wells noted that there has been a natural tension between courts and the political branches of government from the time John Marshall ruled that the power of the Supreme Court includes the power to declare statutes unconstitutional. John Hamilton argued that it is a fundamental attack on the system when the legislature seeks to abolish that tension. There is additional history in Florida with respect to the proposals relating to appointment and retention of appellate judges. Our present system, which gives the governor power to appoint appellate judges, arose after a scandal in the early 1970s, when Florida elected all judges. In 1976, the Florida Constitution was amended to require

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appointment and merit retention of appellate judges. Against this backdrop, the question arises as to whether Senate confirmation of Supreme Court justices would unduly affect the quality of appointees. The governor is now responsible for appointing all members of the judicial nominating commission, who recommend candidates for judicial appointment. While legislators are the elected voice of the voters and theoretically should have input into selection of judges, injection of the Senate into the selection process could interject more politics where, perhaps, there should be less. Strategy and Diplomacy Carrie Ann Wozniak moderated a second panel consisting of U.S. District Court Judge John Antoon, Jr., and Fifth District Court of Appeal Judges Jacqueline Griffin, Kerry Evander, and Jay Cohen. This panel had broad and unique perspectives of professionalism practiced by attorneys in trial and appellate courts. Among other outstanding practice tips, the panel presented important guidelines. • One prevalent professionalism issue the panel discussed is disrespect for other attorneys as well as adverse witnesses at trial. They noted that the best attorneys can effectively cross-examine without being disrespectful. Another issue is the inability of attorneys to agree on whether or not they have made a pre-trial stipulation and, if so, what that stipulation was. • The panel likewise discussed what they view as the most common professionalism issues in the trial courts: issues involving discovery. They suggested that, before filing discovery motions, attorneys meet and confer in a serious effort to avoid unnecessary expenses for their clients. Discovery disputes also frequently result in wasted hearing time, which could be used for substantive motions. • In describing what makes an outstanding appellate lawyer, the panel listed understanding the duties of candor to the court, competency, and fairness to others. Such a lawyer embodies these concepts in both written submissions and oral argument by following the rules, adhering

continued page 8

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2011-2012OCBA Committees & Chairs Please see the OCBA website for meeting times and locations. ADR

Appellate Practice

Bankruptcy Law

Lawrence H. Kolin Chair 407-494-6160 lkolin@thekolingroup.com

John R. Hamilton Chair 407-423-7656 jhamilton@foley.com

Robert B. Branson Chair 407-894-6834 rbranson@bransonlaw.com

Criminal Law

Diversity

Ryan J. Hillary Chair 407-836-2406 rhillary@sao9.org

Marc A. Consalo Co-chair 407-304-6457 marcconsalo@yahoo.com

Family Law

In-house Counsel

Deborah S. Poindexter Chair 407-478-1001 Deborah@ PoindexterLaw.com

Taylor C. Kessel Chair 407-829-3451 tkessel@rhgi.com

Paul C. Perkins Jr. Chair 407-540-0122 pperkins@orlandotriallaw.com

Richard L. Barry Chair 407-843-8880 richard.barry@ gray-robinson.com

Law Week

Teresa A. Herrmann Chair 407-647-8911 therrmann@schwartzlawfirm.net

Dorothy F. Green Chair 407-481-5800 dgreen@lsbeblaw.com

Catrina M. Chapin Chair 407-245-2422 cchapin@ralaw.com

Social

William D. Umansky Co-chair 407-228-3838 bill@thelawman.net

Philip K. Calandrino Chair 407-601-4905 phil@floridabusinesslaw.com

Heather C. Kirson Co-chair 407-422-3017 hkirson@kirsonfuller.com

Insurance Law

Grey Squires-Binford Co-chair 407-425-1020 gsquires@kpsos.com

Monte S. Starr Chair 407-425-8500 monte.starr@hklaw.com

Amber Jade F. Johnson Chair 407-786-2388 attorneyaj@aol.com

Thomas P. Moss Co-chair 407-909-1900 tmoss@sawyerandsawyerpa.com

Intellectual Property Judicial Relations

Caryn N. Diamond Co-chair 321-972-0000 caryn.diamond@ csklegal.com

Joshua R. Brown Chair 407-872-7300 jbrown@rumberger.com

Judith M. Mercier Chair 407-425-8500 judy.mercier@hklaw.com

Professionalism

James A. Edwards Chair 407-425-7010 JimEdwards@zkslawfirm.com

Social Security

Solo & Small Firm

Technology

Richard A. Culbertson Chair 407-894-0888 culbertsonlaw@msn.com

Shane E. Fischer Chair 407-650-5509 shane@fischer-law.com

C. Todd Smith Chair 407-841-8294 todd@yourpiattorney.com

Construction Law

Estate, Guardianship & Trust

Patricia T. Fuller Chair 407-422-3017 pfuller@kirsonfuller.com

Lawyer’s Literary Society

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Jeffrey S. Ainsworth Co-chair 407-478-1555 jeff@mangum-law.com

Elder Law

Labor & Employment Law

Shayne A. Thomas Chair 407-896-2224 sthomas@ralaw.com

Business Law

www.orangecountybar.org

Jamie Billotte Moses Vice Chair 407-843-2111 jmoses@fisherlawfirm.com

Real Property Law

Dennis J. Wall Co-chair 407-699-1060 DJW@dennisjwall.com

Jaisen J. Stango Chair 407-835-8688 jaisen@jaisenstango.com

Workers’ Compensation Law

Drew Sorrell Co-chair 407-843-4600 drew.sorrell@lowndes-law.com

Kelli B. Hastings Co-chair 407-599-3777 kelli@bichlerlaw.com

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Appellate PracticeCommittee continued from page 6

The panel also warned lawyers to be cautious in objecting to a motion to supplement the record, even when the motion comes immediately before oral argument. The court will decide whether the matter is essential to its decision and, if so, grant the motion. The panel noted that they have denied motions to supplement when the defect in the record was mentioned in the answer brief and the appellant did not move to supplement until after oral argument. • An important part of professionalism on the part of appellate attorneys is to remember that it is the lawyer’s responsibility to help the court develop good law. What is good for a particular case could be bad as a general rule. The professional appellate lawyer will seek to educate the court as to what is at stake and how its decision will affect future cases. The Appellate Practice Committee is most appreciative to all the panel members, and also to Marie West of the OCBA, who worked tirelessly to make this seminar a reality.

to deadlines, using proper forms, proofreading briefs, complying with technical aspects of the case, and making clear and concise arguments. A professional lawyer is courteous to the court and other litigants and avoids ad hominem attacks and insulting innuendo. • When it comes to filings, the panel stated that appellate attorneys can improve their written work product by having a good working knowledge of the record and dealing with the facts with an understanding that the appellate court will view the record from the perspective of the prevailing party. Ad hominem discussions can be deadly in oral argument. In federal court, litigants should take advantage of the opportunity to assist the court in its decision-making process by using hearing time to focus on the primary issues at hand. • Pertaining to motions for sanctions, the panel cautioned that prior to moving for sanctions against an opponent, a lawyer should consider the severity of the Elizabeth C. Wheeler is the immediate past chair of the Appellate Pracviolation, whether it is a repetitive offense, and whether tice Committee. She has been a member of the OCBA since 1989. there has been prejudice to the moving party. A good appellate attorney can address most issues in the briefs. However, when the opposing party brings up matters that are outside the record, a motion for sanctions may be appropriate. • The panel went through the appropriate manner and timing for requests for extensions of time. When a third or in the Gulf Coast fourth extension of time is requested, Business Review the court will consider the reasons in deciding whether or not to grant such a motion, even if unopposed. Although the Fifth District has historically been Serving Eight Florida Counties: liberal in granting multiple extensions, attorneys should not assume that extenSarasota | Manatee | Hillsborough | Pinellas | Pasco | Lee | Collier | Orange sions will automatically be granted, nor assume that the court will issue a warning before denying additional extensions. Federal courts are more stringent in granting extensions. Furthermore, it is unacceptable to wait until a deadline The Weekly Newspaper for Gulf Coast Business Leaders has passed and then request an extension of time. Even so, the Fifth District is reluctant to dismiss an appeal entirely Call: (941) 906-9386 | Visit our website: www.review.net when deadlines are missed. Instead, if a deadline is missed but a late-filed motion for extension is meritorious, the court is inclined to grant the motion and sanction the lawyer. • For practitioners who do not frequently handle appeals, the panel ex plained the importance of familiarity with the rules. While the judges agreed that it is a good thing for competent trial counsel to handle their own ap peals, all lawyers should remember that showmanship is not appropriate. Appellate practice is the purest form of lawyering in that it addresses solely the legal issues in the case. the Briefs September 2011 Vol. 79 No. 9 PAGE 8 www.orangecountybar.org

PUBLISH YOUR LEGAL NOTICES

the Briefs September 2011 Vol. 79 No. 9

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PAGE 9

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The Robert MansbachLawyer’s Literary Society

Would You Like to Do More Reading for Fun?

T Jules S. Cohen

wenty-five years ago several OCBA lawyers who enjoyed reading for pleasure, but were not reading as much as they wanted to, decided to form the OCBA Literary Society. Since then, we have been reading one book per month for ten months of the year and meeting for a brown bag lunch to discuss the book each month. We designate one member of the group to serve as the discussion leader, and he or she researches the author and the book and leads the discussion. The meetings are a great way to get to know each other well through our discussions. The group welcomes new members who, at our last meeting of the year in June, might enjoy the camaraderie involved in helping to choose the reading list for the following year. At this endof-year meeting, each member brings a list of ten books he or she would like to suggest to the group, we exchange our lists, negotiate, and decide which ten books we will read. Over the last 25 years, we have read prize-winning modern novels such as Junot Diaz’ Brief Wondrous Life of Oscar Wao and Arundahti Roy’s God of Small Things. Classics by Charles Dickens, Mark Twain, John Steinbeck and others, some plays by Henrik Ibsen, Noel Coward, and Shakespeare, as well as non-fiction and books by international authors make up our group’s “literary repertoire.” This coming year, our list includes the recent Pulitzer Prize winner for fiction, A Visit from the Goon Squad, by Jennifer Egan. We try to limit the length of the books to about 350 pages or less since most lawyers do not have a lot of spare time

The Robert Mansbach Lawyer’s Literary Society of the Orange County Bar Association READING LIST 2011-2012

Jules S. Cohen is a shareholder at Akerman Senterfitt and a member of the Robert Mansbach Lawyer’s Literary Society for 25 years. He has been a member of the OCBA since 1962.

Date

Author

Book

September 14, 2011

Truman Capote

Breakfast at Tiffany’s

Dotty Green

The 42 Parallel ( Bk. 1 of USA Trilogy)

Karen Jennemann

October 12, 2011 John Dos Passos

Discussion Leader nd

November 9, 2011

John Williams

Stoner

Maria Hinds

December 14, 2011

Steve Martin

Object of Beauty

Mark Lang

January 11, 2012

Leo Tolstoy

Death of Ivan Ilyich

David Falstead

February 8, 2012

William Shakespeare

King Lear

Stuart Bernstein

March 14, 2012

Robert Goolrick

A Reliable Wife

April 11, 2012 Jennifer Egan

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to read. Motivation to find “spare time,” however, is easy when we are given a specific book to read, knowing that other lawyers are reading it, and have an opportunity to come together to discuss it while enjoying the collegiality of the group. We have motivated each other to read more than 200 books in the past 25 years, which we may never have done given the pace of the everyday activities of life as lawyers. A great source of motivation for our group came from Robert Mansbach, who was an avid and passionate reader and an original member. Sadly, Bob passed away on December 25, 2010, at an early age. For the last 24 years, the group has met in a conference room at Zimmerman, Kiser and Sutcliffe, P.A., where he was a partner. In light of his recent passing, our group has decided to change our name from the OCBA Literary Society to the Robert Mansbach Lawyer’s Literary Society in memory of Bob. Our group meets at the OCBA center the second Wednesday of each month at noon. So, if you’re looking for spare time to read and have fun, we welcome you to join us for any meeting. A list of the books for the upcoming year and the dates of our meetings is below. If you would like further information, please contact the chair of our group, Dotty Green, at dgreen@lseblaw.com.

Anna Palmer

A Visit From the Goon Squad

Scott Willick

May 9, 2012

Sinclair Lewis

It Can’t Happen Here

Robert Hoofman

June 13, 2012

Herman Melville

Bartleby the Scrivener

Dennis Wall

www.orangecountybar.org

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Legal Aid SocietyWhat We Do...

Changing a Life

ometimes, the smallest gesture can save or change a life. Local attorney Pamela J. Smith has learned this through the many years she has generously donated her time to the Legal Aid Society and those it serves.

Donna A. Haynes

PAGE 12

Pam has been employed as an Assistant State Attorney since 1980 and is currently serving in the position of Advanced Felony Specialist. She is also a proud and devoted mother to her two sons, Gary, age 21, and Kevin, age 17. Even though she is a mom and a part-time adjunct professor at Valencia Community College, she remains active and involved in the community, her children’s schools, and her church choir. Somehow, she also finds time in her busy schedule to provide pro bono work through the Legal Aid Society. Pam has participated in our Telephone Screening Project by donating six Saturday Pamela J. Smith mornings a year to intake for more than 26 years. She is a two-time recipient of the Legal Aid Society’s Government Attorney Pro Bono Merit Award of Excellence. Cathy Tucker, the Pro Bono Coordinator, says that “Pam is a dedicated public servant who also finds the time to help in the community through Legal Aid.” Pam states, “As government attorneys, we are limited in what we can do in the pro bono arena. I have been volunteering at Legal Aid since the inception of the phone screening program. No matter how many times I answer that phone, I am happy to help people, and I feel so good about trying to turn someone’s bad luck around just by making an appointment for them and saying some kind and encouraging words. It keeps me grounded and it is humbling because I could be addressing or thinking about my own problems or issues, and yet that one phone call puts my life and my problems in proper perspective. It has made me a better person and an appreciative person when I reflect on the blessings that God has given me. In addition, I have enjoyed getting to know the various attorneys at Legal Aid, and I always look forward to Mary Anne’s pot of Saturday coffee! Legal Aid makes performing pro bono work enjoyable; they have many diverse programs from which to choose.” During intake, Pam helps applicants gather the legal information they will need when they meet

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with a Legal Aid attorney. Even when applicants are not able to be provided with pro bono or inhouse representation, Pam helps them understand how to advocate effectively for themselves. When possible, she also directs those individuals to other sources that are able to help. With a sweet smile and words of encouragement, Pam gives applicants the guidance they need. After Pam’s father, Lt. Colonel Gary Thomas Smith, was killed in an F-4 crash at Eglin Air Force Base after returning home from Vietnam, Pam’s mother was so frustrated by working with some of the attorneys involved in handling his affairs that she sat down with Pam, who was 14 years old at the time. She shared her frustrations with her daughter and told Pam that she should become an attorney because of her patience, compassion, and willingness to help others. Pam took those words to heart and followed her mother’s advice. “I wanted to help people and make a difference in their lives,” said Pam. “I never entered the law to make large sums of money. I entered the practice to change lives.” Pam adds quietly, “And, I hope I’ve done that.” We here at Legal Aid can respond to Pam’s statement: “Yes, Pam, you have touched many lives.” If you, too, would like to donate your time to a Legal Aid project, there are many to choose from, including: AIDS Project: A special wills panel provides simple wills and related documents to persons with AIDS, ARC, and who are HIV-positive. Attorneys interview clients at support agencies such as Hope and Help Center, Centaur, or Miracle of Love. Attorneys commit to four sessions of interviews. For more information, please contact Cathy Tucker, Pro Bono Coordinator, at ctucker@legalaidocba.org. Attorneys Fighting for Seriously Ill Children:

Attorneys provide assistance for families with children who are suffering from a critical illness. These families in crisis need help with insurance, wills, trusts, credit problems, bankruptcy, review of real estate documents, and other issues. Panel attorneys do not litigate, but instead provide advice, counseling, referral, and outreach. Preference is given to government attorneys and corporate counsel. For more information, please contact Cathy Tucker, Pro Bono Coordinator, at ctucker@legalaidocba.org.

Citizens Dispute Settlement/Family LawMediation: Attorneys serve as mediators for the the Briefs September 2011 Vol. 79 No. 9

OCBA-sponsored CDS and Family Law Mediation program. Attorneys who participate in CDS agree to act as mediators for disputes over civil matters, such as neighborhood disputes, landlord/tenant problems, etc. Attorneys certified as family law mediators participate in Family Mediation. Preference for participation is given to government attorneys and corporate counsel and, because a schedule is needed by midJanuary, slots are assigned on a first-come, first-served basis. For more information, please contact Cathy Tucker, Pro Bono Coordinator, at ctucker@legalaidocba.org. Community Education Panel: Government attorneys (assistant state attorneys, public defenders, and city and county attorneys) and in-house corporate counsel agree to speak to community groups and participate in community programs that impact low-income residents of Orange County. Attorneys speak on a variety of topics and discuss the Legal Aid Society as well. Brochures about Legal Aid are provided. For more information, please contact Larri Thatcher, Intake, Outreach, & Community Education Coordinator, at lthatcher@legalaidocba.org. Earned Income Credit/Tax Assistance Project: Attorneys help eligible clients pre-

pare their tax returns and assist them in ob-

M a r k

taining the earned income tax credit. Preference is given to government attorneys and corporate counsel. Volunteers must be available for five to seven clinic sessions, which are held in February. For more information, please contact Cathy Tucker, Pro Bono Coordinator, at ctucker@legalaidocba.org. Homeless Advocacy Project: This project began its pro bono component in 1992. Attorneys conduct intake at a variety of food and shelter sites in and around Orange County each month. Cases identified for specific legal assistance can be handled by the interviewing attorney or referred through the pro bono panel. For more information, please contact Michael Resnick, Homeless Project & Housing Attorney, at mresnick@legalaidocba.org. Teen Court: This diversion program was created to help juveniles who have been accused of misdemeanors. The juveniles appear at a teen court composed of other teens who serve as prosecutor, defense attorney, and jurors. Pro bono attorneys serve as advisors and trainers. Preference is given to judges and government and corporate attorneys. Attorneys should expect to be available for 12 sessions or about 30 hours of service. For more information, please contact Cathy Tucker, Pro Bono Coordinator, at ctucker@ legalaidocba.org.

y o u r

Teen Parent Education Project: Attor-

neys teach a class on legal issues for teen parents in high school classes in Orange County Public Schools. For more information, please contact Stephanie Stewart, GAL attorney, at sstewart@legalaidocba.org. Telephone Screening: Government and in-house corporate counsel answer telephones on Saturday mornings from 9:00 a.m. until noon at the Legal Aid Society office and screen callers for appointments. A schedule is set at the beginning of each year and training is offered. For more information, please contact Larri Thatcher, Intake, Outreach, & Community Education Coordinator, at lthatcher@legalaidocba.org. To help us continue the great work that is performed at the Legal Aid Society, consider making a donation to our nonprofit charity by visiting www.legalaidocba.org. Also, if you know of a business or individual that would care to sponsor our Breakfast of Champions on November 9, 2011, please contact: Donna Haynes, 100 East Robinson Street, Orlando, Florida 32801; 407841-8310 ext. 3150; or email dhaynes@ legalaidocba.org. Donna A. Haynes is the Director of Development at the Legal Aid Society. She has been a member of the OCBA since 2008.

c a l e n d a r

Legal Aid Society of the Orange County Bar Association, Inc.

presents

October 18

TUESDAYS 12:00 p.m.-1:30 p.m. Comerica

Bank

111 North Magnolia Avenue, Suite 1000 10th Floor, Corner of Magnolia and Washington Orlando, FL 32801

September 13

Children’s Developmental and Medical Issues and Services in Orange County (GAL topic) Speaker: Ericka Garcia, Attorney at Law CLE Applied for

November 1

Landlord Tenant Law Update Speakers: Larri Thatcher, Attorney at Law Michael Resnick, Attorney at Law CLE Applied for

Public Benefits Speaker: Edward Dimayuga, Attorney at Law

December 6

September 27

CLE Applied for

Mental Health Disorders in Children (GAL topic) Speaker: Jennifer Schmidt, GAL Case Coordinator CLE Applied for

October 4

Temporary Custody of Minor Children Using Chapter 751 to Obtain Custody by a Family Member: The Advantages, Limits and Practical Issues Speakers: William Davis, Attorney at Law Catherine Tucker, Attorney at Law CLE Applied for

the Briefs September 2011 Vol. 79 No. 9

VAWA – Violence Against Women Act Speaker: Charles Conroy, Attorney at Law For OCBA members, the training is free. For non-OCBA members participating in the LAS pro bono program, the training is free. Pre-registration is required for the free lunch and requested for training (or subject to space availability if not pre-registered). For more information, please email: ctucker@legalaidocba.org or mcarbo@legalaidocba.org or merazmus@legalaidocba.org. PARKING WILL BE VALIDATED THE DAY OF TRAINING. WE WILL NOT REIMBURSE PARKING VOUCHERS.

For more information, please contact Cathy Tucker at ctucker@legalaidocba.org; Marilyn Carbo at mcarbo@legalaidocba.org; or Michelle Erazmus at merazmus@legalaidocba.org.

www.orangecountybar.org

PAGE 13

The Florida BarNews

T Lawrence H. Kolin

PAGE 14

E-discovery Rules Approved by The Florida Bar

his summer, The Florida Bar Civil Procedure Rules Committee finally approved draft rule amendments of its longstanding e-discovery subcommittee. The Florida Bar Board of Governors recently gave its unanimous blessing to the Expedited Submission of Proposed Amendments to Address Discovery of Electronically Stored Information. These new rules are likely to be submitted to the Supreme Court of Florida off-cycle and soon published for comment. Following Congress’s 2006 amendments to the Federal Rules of Civil Procedure, which coincided with increasing reliance in modern communication on email, documents, and electronic information residing in computers, storage devices, handhelds, and smartphones, it was decided that the Florida Rules of Civil Procedure also needed to be updated. Likewise, exponential growth in the volume of electronically stored information (ESI) in the possession of parties to litigation, and the significant growth in the frequency with which litigants and courts have since had to address issues related to the discoverability, retrieval, review, and production of ESI, also brought about these changes, with which all practitioners should now become familiar. After studying the rules enacted in just over half of the fifty states with the intention of facilitating the development of proposed changes to Florida’s Rules, the subcommittee adopted core principles that provided predictability by tracking language used in the federal rules so that existing precedents might be applied. The core principles were developed with recognition that the culture in state courts, with their greater variety of litigation, is different from the culture in federal practice. Additionally, issues involving information technology are no longer limited to complex or commercial litigation; they are increasingly evident in the full range of civil cases that routinely involve electronic evidence. Resources available to litigants also are often different in state court cases than in federal litigation. As such, keeping discovery reasonable and cost-effective, and preventing the cost and burden of electronic discovery from being outcome determinative rather than based on the merits (or at least from being unduly favorable to either requesting or responding parties), was considered. It should be noted that while encouraging early, meaningful, and reasonable cooperation and communication among parties in a desire to min-

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imize the frequency with which disputes must be resolved by the courts, the mandatory “meet and confer” of the federal system seemed impracticable to the full standing committee, which overwhelmingly voted against imposing such requirements in the state rules. Changes are entirely incorporated into existing rules and specifically include amendments to address ESI within Rules 1.200, 1.201, 1.280, 1.340, 1.350, 1.380 and 1.410 of the Florida Rules of Civil Procedure. For example, case management in Rule 1.200, as well as Rule 1.201 involving complex litigation, will now include the ability to address topics such as: considering the voluntary exchange of ESI and stipulations for authenticity; considering the need for advance rulings from the court on admissibility; and discussing the possibility of agreements (whether by parties or by referral to a special magistrate, master, or other neutral for mediation) on preservation of evidence, the form in which such evidence should be produced, and whether discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources. Other changes include limitations on discovering ESI under Rule 1.280, such as objecting to discovery from sources not reasonably accessible because of burden or cost. On a motion to compel discovery or for a protective order, the person from whom discovery is sought must show that the information sought or the format requested is not reasonably accessible. However, the court, upon finding good cause, may require and specify conditions of the discovery, including ordering that some or all of the expenses incurred by the person from whom discovery is sought be paid by the party seeking the discovery. In determining any motion involving discovery of ESI contemplated by Rule 1.280, the court must limit the frequency or extent of discovery if it determines: (1) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from another source or in another manner that is more convenient, less burdensome, or less expensive; or (2) the burden or expense of the discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. State practitioners will be glad to know that Rule

the Briefs September 2011 Vol. 79 No. 9

1.380 includes a safe harbor, just as in the federal rules, such that absent exceptional circumstances, a court may not impose sanctions for failing to provide ESI lost as a result of the routine, good-faith operation of an electronic information system. These amendments were the result of much debate among attorneys in diverse areas of practice and members of the judiciary, and thorough study of the application of the federal rules amendments in this area since their passage. The hope is that parties will seek to work though anticipated issues

before judicial intervention, whenever possible, but that the guidance of developing federal case law in this area of ESI will be instructive, as few reported Florida cases exist. For source material, please see the OCBA website. Lawrence Kolin served as founding chair of The Florida Bar Civil Procedure Rules E-Discovery Subcommittee from 2006-2010, and is founding chair of the OCBA’s ADR Committee. He has been a member of the OCBA since 1994.

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PAGE 15

Professionalism Award Nominations Sought

Outstanding Professionalism Deserves to be Recognized

he Orange County Bar Association is one of the most active in the country, and its members are shining examples of professionalism. It is always a pleasant but difficult task to identify who is among the “best of the best” when it comes to professionalism in our legal community. Each year, the OCBA Professionalism Committee and the Orange County Bar Association recognize extraordinary professionalism demonstrated by our more experienced or senior lawyers, more recently admitted lawyers, and judges by presenting awards named to honor those great professionals who are no longer with us, yet who still guide us: William Trickel, Jr. (attorneys practicing 15 years or more); Lawrence G. Mathews, Jr. (attorneys practicing less than 15 years); and Judge James G. Glazebrook (judiciary). The recipients of these awards are announced and honored during an OCBA luncheon. Each award winner then shares his or her remarks during a bar luncheon, annual dinner meeting, or Young Lawyers Section meeting so that our members can learn more about their views, tips, and observations on how to practice with professionalism. Additionally, each of the award winners is asked to write an article for the The Briefs, so that all can benefit from their collective wisdom and practical examples. Members of the Orange County Bar Association are asked to submit nominations for these awards by using the appropriate form(s), which can be found on the OCBA’s website. You may submit supplemental information if you feel that it is appropriate. Please send your completed nomination form to Executive Director Brant Bittner at the OCBA by mail, fax, or email. Nominations will be open until Friday, December 9, 2011. For more information, please call the OCBA office at 407-4224551. “Put my experience to work for you today” • Estate, Trust, Probate & Guardianship Contests • Over 10 years Litigation Experience

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PAGE 16

On the cover, judges in alphabetical order with their alma maters: Allen, Faye L. Ansbro, Deborah B. Apte, Alan S. Arnold, C. Jeffery Bell, Maureen Cheek, Leon B. III Egan, Robert J. Fleming, Jeffrey M. Freeman, Carolyn B. Higbee, Heather L. Jewett, Steve Jordan, John E. Kest, Sally D. M. LeBlanc, Bob Lubet, Marc L. Munyon, Lisa T. Murphy, Mike Plogstedt, Antoinette Shea, Timothy R. White, Keith F. Wallis, F. Rand

Florida A & M University University of Florida University of Miami Florida State University University of Florida University of Florida University of Florida University of Central Florida Florida State University University of Florida University of Florida University of Florida Florida State University University of Miami University of Florida University of Florida University of Florida University of Florida University of Florida University of Central Florida Furman University

SeptemberLuncheon continued from page 5

Barry’s capabilities in the area of government and election law are illustrated by the broad, non-partisan nature of his representation. Most notably, he represented President George W. Bush in the 2000 presidential election litigation. In that capacity, he managed 46 lawsuits and personally argued several critical cases on behalf of President Bush. Under both Republican and Democratic administrations, he has been retained at various times as special counsel to the Governor,

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the Florida Senate, the Florida House of Representatives, the Florida Attorney General, the Florida Secretary of State, the Florida Department of Health, the Florida Department of Transportation, and the Florida Department of Insurance. In the 1998 election, Barry served simultaneously as campaign legal counsel to Republican Governor Jeb Bush and the Democratic incumbent candidate for Florida Treasurer and Insurance Commissioner (now U.S. Senator) Bill Nelson.

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the Briefs September 2011 Vol. 79 No. 9

Florida Bar FoundationNews

S Judge Emerson R. Thompson

enior Judge Emerson R. Thompson of the Fifth District Court of Appeal will serve as second vice president of The Florida Bar Foundation. Thompson has served on the Foundation board since 1995 and previously served from 1991 to 1993. He has served on several Foundation committees, including the Investment, Legal Assistance for the Poor/Law Student Assistance, Medal of Honor Award, and Improvements in the Administration of Justice committees. As immediate past president of The Florida Bar, Mayanne Downs will serve as a designated director on the board of The Florida Bar Foundation. Mayanne is a shareholder with King, Mayanne Downs

Blackwell, Downs & Zehnder, P.A. She is also the attorney for the City of Orlando and is a Florida Bar Foundation Fellow. Matthew G. Brenner, Lowndes, Drosdick, Doster, Kantor & Reed, P.A., has been reappointed by the Florida Supreme Court to serve his second three-year term on the Matthew G. Brenner board of The Florida Bar Foundation. Brenner was first appointed to the Foundationâ€™s board in 2008 and has served on the Foundationâ€™s Development committee and Improvements in the Administration of Justice grant committee. The Florida Bar Foundation is a statewide charitable organization that works to expand access to justice on behalf of Floridaâ€™s legal profession.

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PAGE 19

SpecialFeature

T Michael H. Davis

Referring a Client to a Financial Advisor? Ask These Questions First

he economic downturn has had a sobering effect on many people, heightening the demand for objective financial guidance. As an attorney, your client may ask you to make a referral or recommendation for a financial advisor. Now more than ever, it’s important to ensure that this responsibility is balanced by both your personal and professional opinions. Below are nine key questions you should ask before referring clients to financial planning and investment advisory firms. 1. Do you serve clients in a fiduciary capacity? Unlike the legal industry where every attorney functions as a fiduciary, in the financial world true fiduciaries are difficult to identify.

advisors, however, so evaluate this on a caseby-case basis. Also, ask the advisor whether he accepts any “soft dollar” payments (i.e., does he/she receive some benefit for referring products or services?). For example, in exchange for business referrals, some companies provide advisors with upgraded computer terminals, which cost thousands of dollars. The Securities and Exchange Commission (SEC) requires that every financial advisor disclose any “soft dollar” payments, as well as other forms of compensation. 3. Can you provide professional references? The SEC forbids financial advisors from disclosing any client references. Therefore, ask the advisor for professional references – preferably those who are attorneys and/or CPAs. Both of these types of professionals can provide insightful references because they have a basis for comparison in working with various financial advisors. 4. Do you have any disciplinary action against you? Inquire about disciplinary actions against the financial advisor brought by any organization. Any regulatory disciplinary actions or judgments would be present on the financial advisor’s U-4 Form. If there is anything present, have the financial advisor explain it.

Many in the financial industry adhere to the “suitability” standard, meaning that they only have to document an explanation of why their investment advice was reasonably justified for a client. That said, an advisor operating under this standard could still win an incentive prize to Hawaii for referring clients to a particular “suitable” investment. Most non-fiduciary financial advisors work under commission-based sales models, but this is not always the case. The linguistic waters are murky, and the line is blurred between functioning in a fiduciary capacity and almost functioning in a fiduciary capacity. To be sure the financial advisor upholds the fiduciary standard, get it in writing before making referrals. 2. How are you compensated? Insist that the financial advisor disclose all sources of compensation. Don’t become confused by the purposefully tricky terminology used in the industry, such as the terms “feeonly” and “fee-based.” “Fee-only” means an advisor is paid a flat fee, a percentage of the value of a client’s assets, or an hourly fee. The compensation structure eliminates conflicts of interest because there’s no commission. “Fee-based” means an advisor takes either fees or commissions on products and/or services he sells. Some financial advisors are strictly fee-only, some are solely fee-based, and others are a combination of both. Ideally, fee-only compensation ensures impartial judgment. There are some highly qualified fee-based financial PAGE 20

www.orangecountybar.org

5. Do you have an independent custodian for client assets? In the Bernie Madoff world in which we now live, it’s also important to ask whether the client’s assets are held by an independent custodian. All of Madoff’s clients’ money was accounted for only by Madoff’s firm, which was generating false statements. For this reason, it’s imperative to have an independent custodian so that clients can compare their statement to what they’re getting from the advisor. 6. What is your ratio of clients to investment advisors? Ideally, the financial planning and investment advisory firm should have, at most, a ratio of 50 clients per investment advisor (50:1). Since financial advising is an ongoing, comprehensive process, the ratio should be low so that your client receives individualized attention for financial peace of mind. continued page 39

the Briefs September 2011 Vol. 79 No. 9

OCBA Luncheon | July 27, 2011 Sponsored by M & I Bank - A part of BMO Financial Group

Alex Martins, Orlando Magic President

Alex Martins, Orlando Magic

Lawson Lamar

Lawson Lamar, Dean Cannon, Bob Wesley

Dean Cannon, Mayanne Downs

PHOTOS: Floiran Boehm

Wiley Boston, Tara Tedrow, Heather Juster

Kristyne Kennedy presents the Ninth Judicial Circuit Outstanding Service Award to Judge John H. Adams

the Briefs September 2011 Vol. 79 No. 9

Kristyne Kennedy presents the 100% Club Award to (right) Kristin and Arthur Grossman, Grossman & Grossman, P.A.; (below) Michele Johnson, Banker Lopez Gassler, P.A.; (below right) Richard Leigh, Swann & Hadley, P.A.

www.orangecountybar.org

PAGE 21

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www.orangecountybar.org

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Intellectual PropertyCommittee Have You Talked to Your Clients about Google Adwords®? Part II

T Ryan T. Santurri, Esquire

his is a continuation of the Intellectual Property Committee article, Have You Talked to Your Clients about Google Adwords®? Part I, that that appeared in August’s issue of The Briefs. Are “Sponsored” Ads Likely to Confuse Consumers? Although most courts appear to consider the use of Google Adwords® (and similar services) to be a use in commerce under the Lanham Act, the traditional “likelihood of confusion” analysis must still be undertaken to determine a user’s liability under the Lanham Act. In the context of enforcing a permanent injunction, the Massachusetts District Court found that the use of “sponsored linking” – which displays a sponsored ad set apart from search results – was not likely to confuse consumers and therefore not a violation of the injunction against use of the plaintiff’s trademark.1 Similarly, both the Eleventh Circuit and the Second Circuit have cast doubt on whether the use of a “sponsored link” would be sufficient to cause confusion. For example, in Rescuecom Corp. v. Google, Inc., 562 F.3d 123, 130 n.4 (2d Cir. 2009), the court suggested that a “separate ‘sponsored links’ or paid advertising section” may not be highly likely to cause confusion.2 The decision in North American Medical Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1224, n.10 (11th Cir. 2008) suggested a similar notion; the Eleventh Circuit distinguished the facts before it from an instance where “use of plaintiff’s trademark as a meta tag causes in the search result merely a listing of the defendant’s website along with other legitimate websites, without any misleading descriptions.” The Eleventh Circuit went on to note that legitimate reasons may exist “to use a competitor’s trademark as a meta tag,” such as in the context of comparative advertising, thus reducing the likelihood of confusion.3 Moreover, there is no case in the Eleventh Circuit adopting the doctrine of initial interest confusion,4 and at least one district court has rejected the doctrine.5 How to Advise Clients in the Eleventh Circuit The viability of claims based on Google Adwords® is unsettled within the Eleventh Circuit. But in light of the case law from other circuits, and the Eleventh Circuit’s recent holding on metatags, it appears likely that the use of Google Adwords® that include a competitor’s trademark will generally support a Lanham Act claim. However, one could infer from the dicta in the Axiom case

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www.orangecountybar.org

that simply using a competitor’s trademark as a Google Adword® may not be sufficient to establish a likelihood of confusion.6 For example, triggering a sponsored ad (without displaying a competitor’s trademark in the ad itself ) may be less likely to confuse consumers because the section is segregated from other search results and obviously contains paid advertisements. This may be especially true if the Eleventh Circuit does not recognize initial interest confusion. So can you tell your clients they are clear to buy Google Adwords® containing a competitor’s trademark? Probably not. Consider the nature of Internet advertising – it is, after all, the Worldwide Web. There is no guarantee that your client will be sued in the Eleventh Circuit if it uses another’s trademarks in Google Adwords®. If your client is subject to personal jurisdiction elsewhere, it could be sued in a jurisdiction where the initial interest confusion doctrine is more strongly enforced, or in a circuit that has definitively determined that the use of Google Adwords® containing a competitor’s trademark violates the Lanham Act. Either way, whether sued in the Eleventh Circuit or elsewhere, the nature of the use will be critical because the likelihood of confusion analysis will likely be determinative. On one hand, it is still highly questionable that use of a trademark to trigger a sponsored link, without more, would satisfy the likelihood of confusion standard.7 On the other hand, at least one court found the use of Google Adwords® to weigh in favor of liability.8 If your client decides to purchase a competitor’s trademark for Google Adwords®, it is critical that the triggered advertisement avoid creating any confusion. For example, the competitor’s trademark should not be displayed in the text of the advertisement itself, such as in Axiom and Storus Corp. v. Aroa Marketing, Inc., 2008 U.S. Dist. LEXIS 11698, *13 (N.D. Cal. Feb. 15, 2008).9 You can also counsel your client to make efforts to use the trademark in a manner which is consistent with “nominative fair use.” However, given the uncertainty that remains in this area of the law, the best course is to err on the side of caution – clients should avoid use of another’s trademark with Google Adwords® or similar services. footnotes page 39

Ryan T. Santurri is a shareholder at Allen, Dyer, Doppelt, Milbrath and Gilchrist P.A. He served as the 20102011 chairperson for the IP Committee and has been a member of the OCBA since 2006.

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President’sMessage continued from page 3

nity at large about all of our programs and services. Among many other things, Peg oversees The Briefs, she produces the Discovery e-mail blasts, and she manages our website. President-Elect Kristyne Kennedy and I had the great privilege of working closely with Peg when we served as coeditors of The Briefs, so we know first-hand just how wonderful she is.

to all of our other staff, tackling whatever projects they need done. (And Barbara is also a darn good bowler!) William Michael Remensnyder – Marketing Assistant and

standing manager, leader, and innovator. And she’s a lawyer, too! She has taken this behemoth head-on and turned it into the

Support Staff. Affectionately known in the office as “Little Mike,” Michael supports advertising sales and assists the rest of the OCBA staff with overflow projects and general administrative needs. Even though we only have him part time, “Little Gloria Warrick – Lawyer Referral Assistant. Gloria is Norma’s right hand and is Mike” is a great asset and a wonderthe other reason why our Lawyer Referral ful help to our staff. Service is so successful! Gloria helps Norma Residential Mortgage Foreclosure Mediation Program Staff For those of you who may be unfamiliar with the OCBA’s RMFM program, I offer some brief back- Kim Homer, Mike Remensnyder, Barbara Zablocki ground. Faced with an unprecedentmost efficient, cost-effective, and resulted residential mortgage foreclosure crisis, oriented program in the state. Since its inthe Florida Supreme Court implemented a ception in July 2010, our RMFM program mandatory residential foreclosure mediation has processed more than 6,100 cases. Like program throughout the state, requiring all Brant, Kim would be the first to say that residential (homestead) mortgage foreclo- the RMFM program is a success because sure cases to participate in mandatory medi- of the wonderful staff she has assembled. ation before the matter could be set for final (By the way, Kim bowls with the heart of a hearing. Many times, the mandatory medi- lion. Sadly for Kim, lions are notoriously bad Mente Piccoli, Peggy Storch, Els Coulter , Maria Sanchez ation is the first opportunity bowlers...) the borrower and lender have track all of our incoming had to communicate directly David Perrow – RMFM Paralegal and calls and outgoing referrals. about the case and to work Mediation Scheduling Manager. I know To give you an idea of the toward resolution. Charged this is out of alphabetical order, but Dave scope of this program, conwith designating an RMFM Perrow was the second person hired when sider that in a recent threeProgram Manager for the we started the RMFM program, and so it month period alone, our Ninth Judicial Circuit, Chief just makes sense to talk about him next. LRS received more than Judge Belvin Perry, Jr. called If Kim designed the engine that makes 18,000 calls. Gloria, we are on the OCBA to assist in the RMFM go, then Dave is the mechanic in your debt! design and implementation that keeps that engine running smoothly. Marie West – Events and Dave works out of the OCBA offices and of RMFM, Seminars Manager. Marie’s serves as the lead mediand to run the enthusiasm and joy for her ation coordinator and program. We work are unmatched. Marie scheduler. He handles were honored is in charge of organizing all Evelyn Lawing, Mike Remensnyder all areas of the program, to be selected of our seminars, room bookfrom compliance, to ings, and other events. She holds a special by Judge Perry and immedimediator training, to place in my heart because she handles all ately sprang to action. FortuIT support. Simply of the arrangements for our monthly lun- nately, we were able to hire put, there would be no Kim Homer to help develop cheons, which I can assure you is no easy RMFM program withtask. She is unfailingly positive and ener- and run the program, and the out Dave. getic. For those interested in putting on a rest, as they say, is history. Els Coulter – Paraleseminar or booking a room at the OCBA, Kim Homer – RMFM Exgal. Els works with Kim ecutive Director. When Judge contact Marie and she will set you up. in the RMFM office at Perry designated the OCBA Barbara Zablocki – Receptionist. In the courthouse. She is to serve as the RMFM Promany ways, Barbara is the face of our orinvolved in the critiganization in the community. Hired only a gram Manager, it didn’t Candice Disorbo, Darshini Ramkarran, cal step of ensuring we Mike Fajerski, Marie West week after Brant joined us, Barbara is the take us long to realize that make contact with borfirst point of contact when people call or we needed a top-notch perrowers about RMFM within the 45 days come to the OCBA office. She is a master son who could launch, and then run, this provided under the administrative order. massive new program. I wish I could take at handling difficult inquiries and troubled She also prepares the notice of non-comcallers or visitors, and she unfailingly reas- credit for hiring Kim, but Brant, Immedi- pliance forms we must file with the court. sures them about how the OCBA can help. ate Past President Frank Bedell, and Past Barbara also provides valuable assistance President Diego “Woody” Rodriguez Candice Disorbo – Paralegal. Located rightly deserve the praise. Kim is an out- in the OCBA’s offices, Candice is Dave the Briefs September 2011 Vol. 79 No. 9 PAGE 24 www.orangecountybar.org

Karen Fast, Brant Bittner, Dave Perrow, Norma Paradiso

Perrow’s right hand, working with Dave in scheduling and coordinating the mediations. Dave would be the first to say that he couldn’t do his job without Candice’s support. Mike Fajerski – Paralegal and On-site Mediation Manager. Mike works in the RMFM mediation offices at the courthouse. He deals directly with our mediators, ensures program compliance, and removes from the program parties who are noncompliant. Fortunately, Mike also knows how to fix the copiers and computers when they are on the blink! Along with Darshini Ramkarran, Mike recently visited nearly every community and senior

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center in our area, helping to educate the public about the benefits of our wonderful RMFM program. Evelyn Lawing – Receptionist and Administrative Staff. Like Barbara for the OCBA, Evelyn often serves as the face of RMFM. She works in the RMFM mediation office at the courthouse and is the first point of contact for lenders, borrowers, and their attorneys when they arrive for mediation. Evelyn schedules Tom Zehnder the mediation rooms, ensures the parties and their lawyers are in the right place, and provides addition support to Mike Fajerski and Darshini Ramkarran. Jill McGurk – Payment Processing. Jill provides the very important service of making sure all RMFM program payments are received, accounted for, and entered into our system. She also ensures that refunds of program fees, which must be determined and calculated on a case-by-case basis, are processed and sent out. Darshini Ramkarran – Administrative Staff. Darshini works with Mike and Evelyn in the RMFM offices at the courthouse and provides critical administrative sup-

www.orangecountybar.org

port to the program. Working with Mike, Darshini also has been heavily involved in our community outreach effort, which is invaluable in getting the word out to the community about the program. I just cannot say enough about the dedicated individuals who support the OCBA and our RMFM program. Those of us who have been privileged to serve in OCBA leadership positions realize that we are mere stewards of the organization during our limited time in office. Fortunately, we can all take comfort in knowing there is an outstanding staff in place to ensure that the fine work of the OCBA will continue for years to come. Very well done, gang! And now, because I’m sure you are dying to know who won the bowling tournament... I am pleased to report the victor was TEAM 2 – Mike Remensnyder, Barbara Zablocki, Kim Homer, and yours truly. J Thomas A. Zehnder, is a partner with King, Blackwell, Downs & Zehnder, P.A. He has been a member of the OCBA since 1995.

PAGE 25

YLS on the move

Jacquelynne J. Regan

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appy September and Happy Labor Day! this special swearing-in ceremony. The oath will First celebrated in 1882, the recognition of be administered in City Council Chambers, with Labor Day as a national holiday flows from a reception to follow in the City Hall Rotunda. our nation’s labor movement and commemorates Family members, lawyers, and members of the the achievements of America’s workforce. It con- judiciary are also invited to witness this sweartinues as a time-honored tribute to the prosperity, ing-in of our newest members of The Florida Bar. strength, and welfare that America’s work force For more information, please contact committee brings to our country. This co-chairs Laura month, YLS recognizes the Lee Shields at contributions of hard workers lauralee@bodiall over the City Beautiful, the fordlawgroup.com Sunshine State, and the Sweet or Chanel Mosley Land of Liberty, beginning at camosley@mdwith you! wcg.com. RSVPs are requested by The YLS would like to thank September 22. the Orange County legal community for once again making The YLS is lookthe Backpack Project a huge ing forward to success! On July 26, 2011, the its signature golf YLS partnered with CFAWL and the Federal Bar Association for a happy hour at Urban Flats to raise money for the annual event that benefited July’s YLS Luncheon was held the students of Rock Lake El- at the University Club. Pictured ementary School. The Back- above is LaShawnda Jackson pack Project provides students with Judge Heather O’Brien. with backpacks full of school Judge Heather O’Brien supplies to use throughout the Judge John Jordan school year. The backpacks have provided supplies for students who otherwise might not have been able to afford them. Over 75 people attended the happy hour and more than $1,500 was raised in support of this worthy cause. Many thanks to committee cochairs Keshara Davis and Alisia Mary Adam- tournament this month! The 20th Annual OCBA son, and their committee, who worked tirelessly Young Lawyers Section Golf Tournament will to collect and deliver the school supplies and do- take place on Friday, September 30, 2011, at nations to Rock Lake Elementary. 8:00 a.m. at the beautiful Reunion Resorts Golf On July 21, 2011, the YLS hosted its annual Course. The last spots for teams and sponsorYoung Lawyers Reception at the John & Rita ships are filling up fast, so get your information Lowndes Shakespeare Center. More than 300 lo- in ASAP if you are hoping to participate! Please cal attorneys, judges, and law clerks turned out to contact Brett Renton at 407-835-6791, brenmix, mingle, taste, toast, and take part in a silent ton@shutts.com, or Jerry Lee Hanbery at 407auction. The event was organized by event chair 389-9695, jerry.hanbery@brockandscott.com for Jill Simon, co-chair Chanel Mosley, and their more information. The YLS greatly appreciates amazing committee. The YLS would like to thank the continued support of this annual event by lothe event’s Signature Sponsors, Lexis Nexis and cal firms and businesses. Morgan & Morgan, P.A., for their generous sup- YLS’ Second Annual Lawyers for Literacy port and participation. Our thanks also go out Spelling Bee will be held on October 20, 2011, to the many other businesses and firms who sup- at the Hilton Doubletree Hotel in downtown ported this event! It wouldn’t have been so suc- Orlando. This event pits teams of spellers against each other (at least one attorney per two person cessful without the support of all involved! Calling all Bar takers!! The official YLS Oath team) in an old-fashioned spelling bee tournament to raise money for the Adult Literacy League, an of Administration Ceremony and Reception will take place on Monday evening, September organization dedicated to eradicating illiteracy in our community. Last year’s event was a smashing 26, 2011, at Orlando City Hall. The YLS invites all takers of the 2011 bar exam to participate in success, and our committee, led by Daryl Gott-

www.orangecountybar.org

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lieb and Davis Lewis, is hard at work in recruiting teams and sponsors for the event. We need and want your help! Would you consider fielding a team or becoming a sponsor? Please contact Daryl Gottlieb or Davis Lewis at dgottlieb@ fisherlawfirm.com or dlewis@ hightowerlaw.net before time runs out! Looking for a way to give back and educate the next generation of attorneys? The YLS-Law Student Mentoring Program

is always looking for mentors. The program pairs YLS members with 2L and 3L law students for one academic year. For more details and to sign up

as a mentor, please visit www. ylsmentoring.org. The YLS September Luncheon will take place on September 15, 2011, at 11:45 a.m. at the University Club. Please email your RSVP to Jacquelynne Regan at reganjj@ lowndes-law.com. If you RSVP at least 48 hours in advance, the cost is $20 for lawyers and $12 for law students, government attorneys, solo attorneys, and judges. A late charge of $2.00 is added for all late RSVPs. The next Brown Bag Lunches with

will be held on September 8, 2011, and October 13, 2011. Unless otherwise indicated, they will be held in the Orange County Courthouse Judicial Conference Room on the 23rd floor. Check the OCBA website for the luncheon topics and further information. If you are interested in joining Judge Kest for an upcoming Brown Bag Lunch, please email Judge Kest’s judicial assistant, Diane Iacone, at ctjadi1@ocnjcc.org. To find out more about the YLS

and its committees and events, please contact Jacquelynne Regan at 407-418-6438 or reganjj@lowndes-law.com. If you are not receiving the YLS email blasts, send an email to Sunny Hillary at sunny@hillarylaw. com 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.

Judge John Kest

Diego Madrigal Kerstin Morgan Meredith Barrios Jill Simon Nico Apfelbaum

The annual Young Lawyers Reception at the John & Rita Lowndes Shakespeare Center, July 21, 2011

Jim Edwards, LaShawnda Jackson Colin Moore, Judge Bob LeBlanc

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the Briefs September 2011 Vol. 79 No. 9

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PAGE 27

SideBar

Sunny Lim Hillary

PAGE 28

eptember is National Honey Month! In addition to being a great natural sweetener, honey has a multitude of benefits that many people don’t know about. Want to give your skin a sweet treat? Honey is a wholesome, all-natural humectant, which means it attracts and retains moisture. Look for honey in your cleansers, creams, shampoos and conditioners. Have you ever had an unrelenting sore throat? Honey has been proven to be a natural throat soother. Are you an athlete looking for a natural energy boost before the big game? Honey’s unique blend of natural sweeteners gives it the ability to provide quick energy in any circumstance! Now, let’s see what some of the voluntary bar associations are up to this month! CFAWL The Central Florida Association for Women Lawyers’ year, which started July 1, 2011, is off to a great start! Programs Directors Jacquelynne Regan and Barbara Leach have already hosted several well-attended events, including a Tour de France wine tasting, mini spa night, and belly dancing class. The organization’s Backpack Project chair, Kayla Mudge, co-hosted a happy hour at Urban Flats with the OCBA YLS and the Federal Bar Association. All proceeds benefitted the Backpack Project and, thanks to the hard work of these organizations, the students at Rock Lake Elementary have the supplies they need for a successful year of learning in 2011-2012. Several more treats are in store for CFAWL members and their guests this year, including CFAWL’s New Members Reception, chaired by Suzanne Meehle (suzanne@meehle.com). The reception will be hosted at the law firm of Dean Mead on Thursday, September 15, 2011, from 5:30 p.m. to 7:30 p.m. All members and their guests are invited to come and welcome CFAWL’s new members. On Thursday, October 6, 2011, CFAWL is hosting its Fall into Fashion event at Terrace 390 from 5:30 p.m. to 8:00 p.m. The event is being co-chaired by Kim Hosley (khosley@seippflick.com), Conti Moore (cmoore@hawmlaw.com), and Amanda Green (amanda.green@cityoforlando.net), and proceeds raised will benefit CFAWL’s inaugural scholarship, which is to be awarded to a third-year law school student in need. The event will also benefit A Place for Children, a free childcare center for the public, including jurors, who have business at the Orange County Courthouse. Everyone is invited to this event, including non-CFAWL members and non-lawyers! GOAABA On August 24, 2011, at the Doubletree Orlando Downtown Hotel, the Greater Orlando Asian American Bar Association hosted a free Ameri-

www.orangecountybar.org

Judge Nancy Alley AnnaMarie Kim Melanie Chase

Molly Cox LaShawnda Jackson Rachel Lowes Lauren Carmody

can-style breakfast for its members in support of the Alien Land Law Project. Florida is the only state that still maintains a constitutional prohibition against aliens owning real property. The restriction on alien ownership of land began in the late 1800s and continued through the early 1900s through the passage, state by state, of laws restricting Chinese and Japanese immigrants from owning real property. At the breakfast, community leaders of both Asian and non-Asian groups and local political representatives discussed the Alien Land Law. The keynote speaker was Dr. Piyush C. Agrawal. Dr. Agrawal is the Chairman of the Asian American Federation of Florida; National Coordinator for the Global Organization of People of Indian Origin; national Past President of the Association of Indians in America; Chairman of the Florida Health Disparity Advisory Committee; Chairman of the U.S. 2000 Census Asian Advisory Committee; Chairman and Chief Operating Officer of APS Technologies, Inc.; former United Nations expert; and a retired Superintendent of Schools. Thank you to Christine Ho and her committee for spearheading this event.

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GOAABA has more events coming up! On September 13, 2011, members of GOAABA and the Central Florida Gay & Lesbian Law Association (CFGL-

LA) and their guests are invited to nosh from the “Food Truck Café” at the Law Offices of Bailey, Zoebel & Pilcher (Lake Lily, Maitland)! Thank you to Sun-

Trust Wealth Management

for sponsoring this mixer. On October 29, 2011, at 7:00 p.m., GOAABA will be hosting a PreHoliday Dessert Party for members and their guests. On November 4, 2011, at 6:00 p.m., everyone, including GOAABA non-members and non-lawyers, are invited to a picnic and a movie at Leu Gardens Date Night. If it rains on November 4, then we will head for popcorn and a movie at Winter Park’s Popcorn Flicks on November 10, 2011, at 7:00 p.m.! On December 3, 2011, at 8:00 a.m., GOAABA will be attending the annual Winter Park Pancake Breakfast and Parade – everyone is invited to bring their families and friends to this festive morning where we will see Santa Claus come to town! For more information on any of these events, please contact social chair Donna Hung (donna@donnahunglaw.com). HBACF The Hispanic Bar Association of Central Florida Scholarship Night 2011 was held on

August 18, 2011, at the Citrus Club. The event, which benefits the HBACF Scholarship Fund, was a great success! The fund aims to provide two annual $5,000 scholarships to qualified applicants attending Barry University Law School and Florida A&M University College of Law. Guests enjoyed food, drinks, music and, of course, lots of friendly people! Thank you to Nicole Sbert and Marcio Valladares for organizing this event, and to the generous sponsors of Scholarship Night 2011: Summa Cum Laude Sponsors: Diaz Law; Total E, Economic Analysts;

Magna Cum Laude Sponsors: First-Choice Reporting

& Video Services; Regional Chiropractic; Valladares Law Firm, LLC; Faddis & Faddis, P.A.; Cum Laude Sponsors: The Pansler Law Firm; Olga C. Garcia, P.A.; Jose L. Garcia, PL; MedFin; Holland & Knight; Dean Mead.

Stay tuned for more exciting HBACF events! If you want to find out more about any of the above-referenced voluntary bar associations, or send information about a voluntary bar to which you belong, please call me at 407-272-5488 or email me at sunny@hillarylaw.com. Sunny Lim Hillary, Hillary, P.A., has been a member of the OCBA since 2005.

Tired? Stressed out? Not feeling on top of your practice? Talk with someone who’s been there.

Suellen Fagin-Allen, JD, LMHC Attorney since 1986/Licensed Mental Health Counselor (407) 242-2956 – Suellen@CounselingFL.com 1417 N. Semoran Blvd., Suite 201, Orlando, FL 32807 Depression – Anxiety – Substance Abuse – Work/Life Balance

Justice Teaching Cindy Schmidt

ustice Teaching Volunteers should be in contact with the teachers by this point in the school year. If you do not know which school you are assigned to, please contact Judge Faye Allen at justiceteaching@ocnjcc.org or 407-836-2257. We suggest that you get on the school’s calendar now for various dates this school year. (Those dates can be changed later if necessary.) The teachers have a master schedule of topics to cover over the course of the school year so the teachers can predict now for the entire year as to when would be a good time for you to discuss which concept. With the busy agenda of the school year and busy schedules of lawyers, these meetings won’t be likely to happen unless you start planning now. Thank you in advance for supporting the students and for assisting in the creation of good citizens. Cindy Schmidt is a committee member of the Ninth Judicial Circuit’s Justice Teaching program. She is a long-time member of the OCBA.

The verdict is in...

The Legal Aid Society and its supporters have been ordered to be pampered at

Thursday, September 15, 2011 3:00 p.m. – 9:30 p.m. Enjoy two mini-spa treatments and refreshments, including wine or other beverage, as you enjoy the company of your colleagues and friends. Fee: $75

CLARAMARGARET H.GROOVER Certified Circuit Civil Mediator since 1995 Fifth District Court of Appeal Approved Mediator Florida Bar Board Certified Construction Lawyer Complex multi-party matters – Commercial, Real Estate, Construction (407) 956-1085 or contact

chgroover@grooverlawfirm.com

the Briefs September 2011 Vol. 79 No. 9

Spa treatments available: massage, foot massage, facial, waxing, manicure, or pedicure Call The Barefoot Spa at 407-539-1491 and make your appointment today. 801 Virginia Drive, Orlando, FL 32803

Join us to help raise funds for the Legal Aid Society!

www.orangecountybar.org

PAGE 29

SpecialFeature Watch Your Step: Attorneys Now May Be Solely Liable for §57.105 Attorney’s Fees to the Opposing Party!

I James C. Hauser

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n 2010 the Florida Legislature amended §57.105, Florida Statutes, eliminating any liability for attorney’s fees on the part of the represented party if the court awards attorney’s fees under paragraph §57.105(1)(b). The pertinent parts of §57.105, with amendments highlighted, are below: (1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts. ***** (3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded: ***** (c) Under paragraph (1)(b) against a represented party. Unfortunately, the amended statute raises more questions than it answers. Based on the creation of §57.105(3)(c), it is not clear whether an attorney found responsible for violating §57.105(1)(b) will be 100% liable for the entire amount of attorney’s fees awarded by the court, or whether the aggrieved party will be limited to a recovery of 50% of attorney’s fees from the attorney, but nothing from the represented party. On the one hand, §57.105(3)(c) must be read in conjunction with §57.105(1),1 which limits the attorney’s exposure to 50% of the attorney’s fees awarded by the court. Based on strict statu-

www.orangecountybar.org

tory construction, this would be the maximum amount of exposure for the losing party’s attorney. The Florida Supreme Court has ruled on numerous occasions that because the award of attorney’s fees is in derogation of common law, such statutes will be strictly construed.2 On the other hand, it is difficult to believe that the legislature intended to treat the amount of sanctions awarded for misconduct under §57.105(1)(a) differently from the amount of sanctions awarded for misconduct under §57.105(1)(b). If the statute were strictly construed as stated above, the aggrieved party would have to absorb 50% of the attorney’s fees it incurred for being wrongfully forced to litigate an issue that was “not supported by the application of then-existing law to those material facts.” §57.105(1)(b). The Florida Supreme Court has held that courts “should not interpret a statute in a manner resulting in unreasonable, harsh or absurd consequences.”3 It would be absurd and unreasonable for an aggrieved party to recover 100% of its attorney’s fees for a violation of §57.105(1)(a), but only 50% for a violation of §57.105(1)(b). Appellate courts, and perhaps the Florida Supreme Court, will have to resolve the issue of whether an attorney who violates §57.105(1)(b) will be responsible for 50% of the attorney’s fees incurred by the opposing party or 100% of such attorney’s fees. What is crystal clear is that the legislature is shifting the blame for such misconduct from the client to the attorney! James C. Hauser Esquire is a principal in Attorney’s Fees in Florida, P.L. He has been a member of the OCBA since 1979.

See, e.g., Florida Dept. of Environmental Protection v. ContractPoint Florida Parks, LLC, 986 So. 2d 1260, 1265 (Fla. 2008). 2 Campbell v. Goldman, 959 So. 2d 223, 226 (Fla. 2007); Dade County v. Pena, 664 So. 2d 959, 960 (Fla. 1995); Finkelstein v. North Broward Hospital District, 484 So. 2d 1241, 1243 (Fla. 1986). 3 Florida Dept. of Environmental Protection v. ContractPoint Florida Parks, LLC, 986 So. 2d 1260, 1270 (Fla. 2008). 1

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7th Annual Summer Happy Hour & Team Trivia Contest | July 28, 2011 Slingapours Sponsored by M & I Bank - A part of BMO Financial Group 1st Place: We Used to Know That. Team members: Hillary Brightman, Robert Dietz, Ray Herod, Ed Kuhn, and James Smith 2nd Place: Team Scholar-Leigh Foll-Leigh. Team members: Tom Zehnder, Leigh Sigman Zehnder, Tad Yates, Richard Dellinger and Liz McCausland 3rd Place: Talk Werty to Me. Team members: Tom Wert, Mike Furbush, John Boudet, Bill Sublette and Anna Ketcham

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www.orangecountybar.org

PAGE 31

THE HEALTH LAW FIRM

MAIN OFFICE • 1101 DOUGLAS AVENUE • ALTAMONTE SPRINGS, FL 32714 TELEPHONE: (407) 331-6620 • (850) 439-1001 • TELEFAX: (407) 331-3030 BRANCH OFFICE • 37 N. ORANGE AVE., STE. 500 • ORLANDO, FL 32801 BRANCH OFFICE • 201 E. GOVERNMENT STREET • PENSACOLA, FL 32501 WEBSITES • WWW.THEHEALTHLAWFIRM.COM • WWW.HEALTHATTORNEYS.COM

REPRESENTATION OF HEALTH PROFESSIONALS Available to accept referrals, consult or co-counsel on cases involving physicians, nurses, health professionals or health facilities. Referral fees paid in appropriate cases. • Medicare/Medicaid Audit Defense

• Pain Management Clinic Representation

• Pain Management Physician Defense

• Medical Malpractice Defense

• DOH/AHCA Investigations

• Insurance Audit Defense

• ZPIC & RAC Audits

• Search Warrant Representation

• Administrative Hearings • Medicare/Medicaid Fraud Defense • Professional Licensing • Medical Board Cases • Subpoena Defense • Office Leases • National Practitioner Data Bank

GEORGE F. INDEST III, MICHAEL L. SMITH, J.D., R.R.T. J.D., M.P.A., LL.M. • Over 25 Years legal experience • LL.M. from George Washington University • Admitted in Florida, Louisiana and D.C. • Board Certified by the Florida Bar in Health Law

• • • • •

B.S., Nova Southeastern University J.D., Stetson Univ. College of Law Registered Respiratory Therapist Licensed in Florida Board Certified by the Florida Bar in Health Law

• Petitions for Waiver or Variance • Medicaid Fraud Control Unit (MFCU) Defense • Utilization Review Defense • Preparation/Litigation of Physician Contracts • Nursing Board Cases

• Hospital Credentials Hearings

• Appeal of Emergency Suspension Orders (ESOS)

• Physician Contracts

• Corporations, LLC’s, Partnership and other Business Entities

• Partnership Dissolutions • Covenants not to Compete

• Sales/Purchases of Medical Practices

• Commercial Litigation

• Peer Review Defense

• Corporate Law

• Physican’s Personal Counsel

• Medicaid Appeal Hearings

JOANNE KENNA, J.D., R.N. (ILL.)

• Disciplinary Proceedings • Substance Abuse (PRN/IPN) • Appellate Practice

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• J.D., Stetson Univ. College of Law • Diploma, St Anne’s Hospital School of Nursing • R.N., Illinois • Licensed in Florida

CHRISTOPHER E. BROWN • B.A., Coastal Carolina University • J.D., Barry University of Orlando, College of Law • Licensed in Florida • Member, American Health Lawyers Association

www.orangecountybar.org

• Opinion Letters • Complex Litigation • Medical Staff Bylaws

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NABE

The OCBA hosted the National Association of Bar Executives Small Bar Conference in late June. Twenty-five bar executives from throughout the country attended the two-day conference. Carrie Witt, president of NABE, and other bar leaders presented sessions. The conference was sponsored by FindLaw and Intus. Edwin Van Riessen, FindLaw

Dana Robb, Association for Women Lawyers Karyn Linn, ABA, Field Services

Robert Stephens, Intus

OCBA Career Center

Find your path! Go to the new OCBA Career Center on our website. Post your resume! Look for employees! It’s easy, effective, and open to everyone! www.orangecountybar.org Member discounts available!

Shannon Brouilette, CFO Strategic Partners

Questions? Please contact Karen Fast at 407-422-4551 ext. 225 or karenf@ocbanet.org the Briefs September 2011 Vol. 79 No. 9

www.orangecountybar.org

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ParalegalPost

The Three Rs – Reading, Writing, and Recognition

s an educator and internship coordinator of both future attorneys and paralegals, I have reflected upon what leads to job satisfaction and ultimately, retention of good employees. The bottom line is usually recognition.

Kathy S. Cook

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Registered Paralegal Program in Florida as well as the professional paralegal organizations. Education strengthens the paralegal’s skills and increases their value in the workplace. Currently, to become a Florida Registered Paralegal (FRP), one must have at least an associate’s degree or have passed the National Association of Legal Assistants’ (NALA) Certified Legal Assistant/Certified Paralegal (CLA/CP) exam or the National Federation of Paralegal Associations’ (NFPA) Paralegal Advanced Competency Exam (PACE). Continued status as a Florida Registered Paralegal is contingent upon the paralegal completing 30 hours of continuing education, including five hours of ethics, every three years. Both of the major certifications have similar continuing educational requirements. As a member of the Orange County Bar, I am proud that both the Paralegal Section and the Central Florida Paralegal Association (CFPA) have encouraged and sponsored seminars. Recently I had the opportunity to attend the Paralegal Association of Florida’s (PAF) annual meeting, which was held in conjunction with a seminar. I was impressed with the quality of the seminar as well as the professionalism and knowledge exhibited by the paralegals. I am sure the paralegals go back to their offices more enthusiastic and certainly more knowledgeable. PAF, through the University of Central Florida, also offers a state-specific certification exam for those who have already passed the NALA Certified Paralegal examination. Annual reviews are an excellent time to set future goals. As part of the annual review of your paralegal employee(s), why not encourage continuing education? Why not pay for joining state and local professional organizations? Why not pay for your employees to continue their education as an employment benefit? Recognizing them as professionals and encouraging their education is an investment not only in them but also in your firm.

Recognition is reflected by pay, treatment as a professional, titles, and an interest in supporting professional development or education. While most people do not think of continuing education or support of professional development as a part of recognition, it is at the heart of professionalism. When personnel are encouraged to attend seminars and to continue their education, they feel valued. In turn, the valued employees are more productive. Encouraging these activities is a way to tell the employees that they are valued and that you support their efforts to be even better. In addition, ethical, educated paralegals who understand what they are doing are less likely to “mess up” and cause costly mistakes. Technology and the law change faster than they did 40 years ago. Attorneys who are members of most state bars are now required to have continuing education. The paralegals that have passed the national exams or are registered paralegals through The Florida Bar are also required, as part of their profession, to have continuing education. Education is a lifelong commitment to excellence in any profession. Although being a Florida Registered Paralegal is not a requirement of the paralegal profession, proponents of the program agree that continuing education is vital to help paralegals become better at their jobs and give more credibility to the profession. One of the goals of the Registered Paralegal Program is to identify and confirm the legitimacy of those professing to be paralegals. Paralegals who are part of the Registered Paralegal Program, or those who have completed paralegal and educational programs, as well as those who have passed one of the national examinations, want to be differentiated from other employees who do not have these qualifications. Claiborne Pell, a philanthropist and supporter of education, said, “The strength of the United States is not the gold at Fort Knox or the weapons of mass destruction that we have, but the sum total of the education and character of our people.” Education is a vital component of the

www.orangecountybar.org

Kathy S. Cook is a graduate of the University of Florida College of Law, has taught at the University of Central Florida for 29 years, and is a retired Army JAG officer. She has been a member of the OCBA since 1980.

the Briefs September 2011 Vol. 79 No. 9

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the Briefs September 2011 Vol. 79 No. 9

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TRIAL SKILLS TITLES FOR FLORIDA LITIGATORS PROVEN • PRACTICAL • POPULAR

Berman’s Florida Civil Procedure, 2010-2011 Ed.

Florida Elements of an Action, 2010-2011 Ed.

Florida Motions in Limine, 2010 Ed.

Florida Practice Series, Vol. 4

Florida Practice Series, Vol. 21

by Bruce J. Berman

by Patrick John McGinley

by Julie Kay Baker, Heidi F. Friedman, and David N. Finley

One softbound volume, replaced annually. #40810731 $144

One softbound volume, one CD-ROM, replaced annually. #40522503 $182

To order, call 1-800-554-8827 or visit west.thomson.com Please provide OFFER CODE 652103 when ordering.

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www.orangecountybar.org

the Briefs September 2011 Vol. 79 No. 9

SpecialFeature

M Samuel H. Steinberg, Ph.D., FACHE

Evaluating Hospital Corporate Responsibilities in Medical Malpractice Cases

edical malpractice cases require stringent and comprehensive clinical review, and attorneys often employ medical experts to review their cases. Often overlooked is the use of a hospital administration expert, who can add significantly to the case by evaluating the corporate responsibilities of the hospital involved in the matter. It is important that attorneys work with a person who has actually worked as a hospital administrator and, indeed, some states require the use of a person actively engaged in the field. While many physicians feel they have hospital administrative experience, the experience may not be adequate to evaluate hospital compliance with accreditation standards, licensure regulations, and administrative policy and procedures. The hospital or healthcare organization always has an interest in every malpractice case as patient safety and the quality of care are central to their mission. Additionally, the discovery of systemic problems, adverse publicity, potential financial loss, and poor staff morale are extremely important to the hospital’s leadership. The attorney can best determine the hospital’s corporate responsibilities through engaging an experienced healthcare executive to evaluate the case. The administrative expert relies on the physician experts to determine whether clinical errors were made and uses this information to perform a review of hospital policies and licensure and accreditation standards. The hospital administrative expert will review the appropriate Joint Commission Hospital Accreditation Standards manual to evaluate the degree of compliance of the hospital with the standards. For example, in a case where a wrongsite surgery takes place and the hospital does not follow the required Joint Commission standards regarding the identification of the patient and the surgery site, nor perform the mandatory time-out procedure prior to starting the operation, hospital employees can and should make certain that the surgeon follows the correct procedures. If hospital employees fail to act, there would be indications of corporate negligence, and the hospital would have some responsibility. Another important review performed by the administrative expert is to look at hospital policies and procedures. This evaluation includes determining whether the hospital has the required up-to-date policies in place and then ascertaining whether they actually follow them. For example, in a case when a radiology examination reveals a

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life-threatening situation for an emergency department patient, there is no corporate liability if the hospital has policies for the handling of critical test results readily apparent and in place and follows them according to accreditation standards. Reviewing the credentialing procedures of hospitals to evaluate whether they comply with the appropriate standards is an often overlooked area of investigation, since the hospital must comply with very definitive standards for initial credentialing and re-credentialing physicians and other licensed independent practitioners. It is important to evaluate whether the correct procedures are carefully followed, particularly since the standards have been changed in recent years, and focus more on an ongoing review process rather than the familiar biannual review. Another area of focus is that of new procedures and new equipment. Does the hospital formally approve new procedures or new pieces of instrumentation? Are hospital staff members adequately trained in new procedures? Does the materials management department purchase the new equipment per its policy or do the physicians or surgeons bring new equipment in? Have the surgeons’ privileges been expanded to include the introduction of new procedures? Many hospitals have policies related to new procedures and equipment in place and do this extremely well, but others do not. It is important to review this area thoroughly. Reviewing corporate responsibilities should take place in nearly all medical malpractice cases. Reviews can benefit patient care as well as provide clarity as to the hospital’s compliance with its responsibilities. For many attorneys, the Joint Commission standards are unfamiliar and an administrative expert can assist them in navigating these voluminous and constantly changing standards. In addition, a hospital administrative expert can often assist in developing the strategy of a medical malpractice case by explaining the inner workings of the hospital, the internal politics of medical staff relationships, and the rules regarding the use of independent contractors, just to name a few. Bringing an expert into a case early to help formulate discovery requests and specific questions to ask hospital representatives in the deposition process can benefit both defense and plaintiff attorneys in their efforts to resolve a medical malpractice case successfully. Samuel H. Steinberg, Ph.D., FACHE, S.H. Steinberg Consulting LLC.

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Presentation Skills for Lawyers

I Elliott Wilcox

“I Think We Should Break Up” How to Stop Your Audience from Falling Asleep

t’s 1 o’clock in the afternoon, and your audience has just returned from lunch. Regardless of whether this audience is a group of your peers at a conference, a group of potential clients, or a jury deciding the fate of your client, they’re all going to share some common characteristics. Their bellies will be full, and they’ll be feeling happy and content. That can only mean one thing: They’re also going to be feeling tired and, if you’re not careful, they’re going to fall asleep midway through your presentation. Anyone who has ever spoken or presented witness testimony after lunch has encountered the sleepy audience. But how do you deal with it? Short of blasting an air horn or forcing everyone to drink a Red Bull, how can you combat the natural sleepiness that accompanies the post-lunch presentation? Here’s a quick solution for dealing with a tired audience: Break up with them. “What do you mean ‘Break up with them?’ If I walk out on my audience or leave the courtroom, it’ll be a disaster!” No, I don’t mean walk out on your audience. When I say, “break up with them,” I mean you should break up your presentation so that it keeps your audience interested and involved. By breaking up your presentation into smaller chunks and using a variety of visual, auditory, and kinesthetic interruptions, you will keep your audience engaged and awake the entire time you speak. Let me give you an example from a recent DUI trial. After lunch, the jurors looked tired. Their eyes were droopy, their heads were hitching up and down, and one juror kept shaking his head in an attempt to stay awake. They were trying their best to stay interested in the case, but with the witness’ dry recitation of facts and monotone voice pattern, they barely stood a chance. Fortunately, the prosecutor was smart. Realizing that if she didn’t recapture the jurors’ interest, they were going to fall asleep and miss all of the important evidence in her case, she quickly responded by breaking their attention pattern. Asking the court’s permission, she instructed the witness to step down from the witness stand and stand before the jury. Standing in the center of the courtroom, the officer instructed the jurors how to perform field sobriety tests and then demonstrated each of the tests. The transformation was amazing. Jurors who had been nearly dozing off suddenly found them-

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selves reenergized. By shifting the jury’s attention from the witness stand to the courtroom floor, the prosecutor gave them something new to look at, reengaged their interest, and breathed new life into her case. By “breaking up” with the jury, she interrupted their sleepy trance and helped them stay alert for the rest of the witness’ testimony. You can do the same thing to keep your audience or your jury interested after lunch. Here are three ways you can break up your audience’s attention pattern and give them a renewed interest in your presentation: 1. Visual breaks. By having the witness step down from the witness stand, the prosecutor created a visual “break” in the testimony, forcing the audience to refocus their eyes and shift their attention. You can also create visual breaks by moving to another side of the stage, stepping out into the audience, or adding a new visual medium (such as a video or physical object) to reengage your audience. “If adding a visual image engages the audience, it’s probably a great idea to use a lot of PowerPoint slides, right?” Not necessarily. Think back to high school science class and the movies your teacher played after lunch. The lights dimmed, the crackly 1950s voice began talking about the dangers of atomic radiation, and 15 minutes later, everyone in class was asleep. If you are already using slides or a PowerPoint presentation, you can create a visual break by turning your presentation to the “OFF” position for a while. This forces the audience to focus on a new visual object: You. (To quickly turn your presentation on and off, you can hit the “B” button to turn the screen black, or the “W” button to turn the screen white.) 2. Auditory breaks. One of the easiest ways to put an audience to sleep is by speaking in a monotone (“Bueller? Bueller?”) voice. To provide an auditory break to your presentation, you can vary your pitch, your tone, your volume, or your pacing. If something is exciting, speak faster. If something is dramatic, speak slower. Adjust your tone to demonstrate different levels of intensity. If you really want to engage your audience, don’t raise your voice. Instead, lower your volume, and they’ll lean in to listen to you. Also, don’t be afraid to pause. Adding purposeful silence to your presentation can create a dramatic break that immediately reengages your audience.

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3. Kinesthetic breaks. The last type of break you can use to engage your audience is a physical break. If you can create an exercise that gets your audience physically involved with your speech, you can immediately get them engaged. In a trial, you obviously can’t ask the jurors to get out of their seats, but you can physically engage them by handing them an exhibit or a photograph to examine. It doesn’t have to be much, but the physical engagement will do wonders to reinvigorate your audience. The after-lunch spot may not be your favorite time of day to speak or present testimony, but sometimes you won’t have any choice. When it happens, be prepared to create visual, auditory, and physical breaks for your audience so that you can keep them engaged in your entire presentation. Breaking up may not always be easy, but in this case it’s the best thing you can do to save the relationship. Elliott Wilcox limits his trial practice to DUI cases. He has been a member of the OCBA since 2001

Intellectual PropertyCommittee continued from page 23

Boston Duck Tours, LP v. Super Duck Tours, LLC, 527 F. Supp. 2d 205, 208 (D. Mass. 2007). 2 See also Google Inc. v. American Blind & Wallpaper Factory, Inc., 2007 U.S. Dist. LEXIS 32450 at *36 (finding that a fact question existed as to whether a “sponsored link” was likely to cause confusion). 3 See North American Medical Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1224, n.10 (11th Cir. 2008). 4 “Initial interest confusion” is defined as “consumer confusion that creates initial interest in a competitor’s product. Although dispelled before the actual sale occurs, initial interest confusion impermissibly capitalizes on the goodwill associated with a mark…” See Playboy Enterprises, Inc. v. Netscape Com1

munications Corp., 354 F.3d 1020, 1025 (9th Cir. 2004). Initial interest confusion is commonly relied on in metatag and Adword® decisions. See, e.g., Australian Gold v. Hatfield, 436 F.3d 1228 (10th Cir. 2006); Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999). 5 See Vital Pharmaceuticals, Inc. v. American Body Building Products, LLC, 511 F. Supp. 2d 1303, 1318 (S.D. Fla. 2007). 6 See Axiom, 522 F.3d at 1224, n. 10. 7 See Rescuecom, 562 F.3d at 130, n. 4; Axiom, 522 F.3d at 1224, n. 10. 8 Binder v. Disability Group, Inc., 2011 U.S. Dist. LEXIS 7037, *38 (C.D. Cal. Jan. 25, 2011). 9 See Axiom, 522 F.3d at 1222.

Referring a Client to a Financial Advisor? continued from page 20

Marc Jacobs, Esq., Michelman & Robinson, LLP, Litigation Partner

7. May I see Part I of your Form ADV? If the advisor is a registered investment advisor, ask for Form ADV – Parts I and II. All registered investment advisors are required to show their clients Part II of this document. However, equally important – if not more so – is Part I of the document, which discloses information you should know before referring. For example, it tells you the number of employees in the firm and how many of them are involved in an investment function. The form also discloses how many of the employees are registered representatives of a broker/dealer firm and lists all formal compensation agreements that could potentially serve as conflicts of interest. 8. How is your portfolio invested? Ask the financial advisor whether she invests her money the same way she invests money for clients. 9. What is the total cost of services? Ask the financial advisor to provide an estimate of total annual costs as a percentage of the portfolio. The estimate should include a breakdown of visible and less visible costs. Visible costs include commissions and advisor fees. Less visible costs include expense ratios on mutual funds, transaction fees, and whether the financial advisor gets some sort of credit toward that trip to Hawaii. In addition to the preceding questions, inquire into the financial advisor’s education and other credentials, such as whether he earned a Certified Financial Planner® designation. Furthermore, make sure the financial advisor is someone with whom your clients would actually like to work. Financial advising involves divulging personal information, and if you don’t find the referral source likable, it’s likely that your clients will feel the same. Attorney Michael H. Davis is founder and CEO of Resource Consulting Group.

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Rainmaking

Marketing Alliances – A Little Help from Your Friends

I Mark Powers

Shawn McNalis

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n 2001, a family law attorney in Dallas, Texas, assembled a group of interested attorneys to discuss practice management issues. The plan was to meet once a month in a member’s office and either discuss a business book or listen to a guest speaker. The idea was to hone their legal skills, learn from one another, and work “on” their practices. What the attorney didn’t anticipate is that the group would develop into an informal referral network. The more they got together, the more they became invested in one another’s success, and a steady stream of referrals was the result. Without realizing it, our friend from the Lone Star state started a “marketing alliance,” which can be loosely defined as any group of two or more people who come together to support each other’s success. Like many things in life, developing new business is easier if you get a little help from your friends. Teaming up with even one other person can make all the difference. According to the attorneys who have tried it, there is safety – and success – in numbers. Anxious to capitalize on his many contacts, a business and patent attorney in Jacksonville, Florida, intentionally set out to start a networking group. Comprised of solo and small firm attorneys, the once-small group has grown over the years, both in size and in its ability to refer clients to one another. Crediting nearly a third of his business to members of this group, he considers their referrals a tremendous boon to his practice. Aware that there could be problems with competition, he handpicked the original members so their practice areas wouldn’t conflict with one another and create trouble within the ranks. Now, when a new member is proposed, a five-person membership council reviews the candidate. If the candidate is considered to have high service standards and a good reputation, the council then invites him to attend a meeting. From there the entire group votes on allowing the candidate to join. A unanimous vote is required for membership. This group, like the others mentioned, strives to pre-empt any negligent referral issues by maintaining high standards of service and competency. Though this is purposely an informal organization, the members want to protect what has become a source of camaraderie and good business for all of them.

www.orangecountybar.org

If you want to start your own marketing alliance, make sure your plans don’t conflict with any local bar regulations. Once you are clear about the rules, an easy approach to creating an alliance involves inviting one or two existing referral sources to lunch and discussing how you can help one another with referrals. A variation of this approach is commonly seen within large firms where two partners whose practice areas complement each other, such as estate planning and elder law, form an alliance and refer clients to one another. Since referral relationships thrive on trust – trust that you will take good care of each other’s clients – it is smart to proceed with caution and know the other person’s commitment to client service up front in order to avoid a negligent referral situation. Some of you may already have an existing network of professionals, colleagues, and business contacts that already send work to each other. Here, you may want to take the initiative to form a group, institutionalizing this collective relationship by meeting on a regular basis and making a point to look for referral opportunities for each other. Generally, alliances both large and small benefit from having a central theme or a target market. A group focused on “small businesses,” for example, might include litigators who work with small business owners plus accountants, bankers, and others who serve the small business community. Another target market might be “financial services,” which would include estate planning attorneys, insurance brokers, CPAs, etc. There are five key ingredients to maintaining a successful marketing alliance: 1. Each member should regularly attend whatever meetings, lunches, or breakfasts are scheduled. It should be an easy commitment to make for all parties. Examples: a. Lunch once a month b. Breakfast every Friday c. A meeting and tour once a quarter in one member’s office 2. Each member should be genuinely committed to helping the others succeed – mutual benefit should be a guiding theme. 3. Each member should be committed to referring high-quality business to one another. The client’s best interests should outweigh the attorney’s interests when a referral is considered.

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4. Each member should be committed to treating referred Business-savvy attorneys have depended on referral relationships clients with great care for many years. Giving and receiving client referrals is a healthy business practice. An informal marketing alliance happens when a. The referred attorney should see clients as quickly attorneys and other professionals recognize that client-developas possible. ment efforts are easier when alliance members work together and b. The referring member may call ahead or bring the create a little more structure around what has worked in the past. clients and introduce them in person, when appropriAlliances are one of the most proactive forms of marketing – one ate. that requires trust in others to whom you are bound out of mutual benefit. Take a look around in your community. Are there c. The referrer should be endorsed strongly and reindividuals on your list of referral sources with whom you might spected as the principal relationship, thus ensuring form an informal alliance? It would benefit you and your firm to that the client returns to the referring attorney when find out. the work is complete. Mark Powers, President of Atticus, Inc., and Shawn McNalis co-authored d. When ethically appropriate, the referrer should How Good Attorneys Become Great Rainmakers and Time Management be kept informed of progress, new developments, or for Attorneys, and are featured writers for Lawyers, USA and a number of changes as they occur with the referred client. other publications. To learn more about the work that Atticus (www.atticusonline.com) does with attorneys or the Atticus Rainmakers™ (www. 5. Each member should be committed to giving honest atticusrainmakers.com) program, please visit or call 352-383-0490 or 888feedback about the standard of care provided by each per644-0022. son and receiving feedback about their own. Here are some strategies for benefiting from a marketing alliance. The most obvious and directly beneficial means of supporting other members is to provide them with client referrals. But that’s not all they can do. Resourceful members can help their marketing partners in several innovative ways: 1. Alliance members can set up a lunch and introduce others to their law firm or professional partners. & Other Alternative Dispute Resolution Services 2. Members can introduce others to Wouldn’t you rather mediate at a neutral site? their friends, family, and community Neutral fields are always used for big games. Mediation is a big event. Why allow the opposition contacts, when and where appropriate. to have the home-field advantage? Removing outside distractions is a plus for all parties. Dan H. Honeywell 3. If a member is a part of a group, such Visit my website: www.honeywellmediation.com to find who I am, my online schedule, my educational blog, and what I offer you and your client who may be seeking success without trial. My unique as a bar committee or a local Inns of credentials and experience can be a useful and valuable added resource in finding resolution to your client’s dispute. Court, she may invite another member • Certified Circuit Civil Mediator • Certified appellate Mediator • Certified Federal Court Mediator • Board Certified Civil Trial lawyer to be a guest speaker, allow him to make Call Honeywell Mediation/Mediation, Inc: Winter Park: 407-647-5155 an announcement about an upcomOrlando-Central Florida: 407-294-7000 • Statewide-National: 800-741-7000 ing event, or invite him as a guest for Neutral, convenient conference facilities on Lee Road in Winter Park. a special meeting. By providing an adAvailable anywhere in Central Florida without travel charge. ditional platform, other members can help increase their colleagues’ visibility 1/6 page horizontal OCBA The Briefs September 2011 and credibility. 4. Those in the group can encourage their clients to use the services of others by handing out appropriate literature, be it a business card or brochure. 5. Members can co-lead or co-sponsor educational events, such as seminars & Other Alternative Dispute Resolution Services where a divorce attorney and a family therapist host a lecture on “Helping Children Survive Divorce”; where a banker and a business lawyer host a lecture for small business owners on “How An energetic, trusted neutral. Someone who will understand to Avoid Costly Litigation”; where a PI the goals of each party, communicate clearly with the decisionattorney and a bicycle shop owner host makers and actively assist all participants to try and find “Safe Biking Day”; where an elder law common ground for resolution. The key characteristic is trust. attorney and a financial planner host a It is thus the mediator’s responsibility to earn your trust. “Don’t Outlive Your Money” seminar. Visit my website: www.honeywellmediation.com to find who I am, my online schedule, my educational blog, and what I 6. Large signature events such as golf offer you and your client who may be seeking success without trial. tournaments, an outdoor barbeque, a My unique credentials and experience can be a useful and valuable day at the races, a charity auction, etc., added resource in finding resolution to your client’s dispute. can be co-hosted by members. • Certified Circuit Civil Mediator • Certified Appellate Mediator • Certified Federal Court Mediator • Board Certified Civil Trial Lawyer the Briefs September 2011 Vol. 79 No. 9 www.orangecountybar.org PAGE 41 Call Honeywell Mediation

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OCBA 2010Membership Directory OCBA Online Courses & Services

Court Access Cards Available Now. Valid Jan. 1, 2010 – Dec. 31, 2011. $75 Attorneys and legal support staff: download an application at www.orangecountybar.org

Go to the OCBA website at www. orangecountybar.org. Sign up to become a Notary Public or renew your commission. Conduct your Florida MVR searches online. Refer your clients to the parenting course or the traffic safety course. It’s easy, convenient and cost effective!

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(Most applications can be processed by mail!)

Jane Q. Public attorney

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For details, email Stacy Hastings, Membership Manager, at stacyh@ocbanet.org

Serving the Legalwww.orangecountybar.org Profession. Serving the Community.

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Renew Your Orange County Courthouse Access Card Need to renew an existing card? Download an application from our website, send it in and we will use your existing photo. No need to come by – we will mail you your new card, or First time card? Send in the application from our website, a copy of your driver’s license and a .jpg photo, and we will mail you your card. Go to the Orange County Bar Association at www.orangecountybar. org and download the application today.

Jane Q. Public attorney

tiOn ty Bar assOCia Orange COun se aCCess Card COurthOu

Good only for the Orange County Courthouse • For attorneys and legal support staff • Good through December 2013 • $75 • Purchasing card is optional for courthouse entry • OCBA membership is not required

the Briefs September 2011 Vol. 79 No. 9

Issued: 11/01/11 Expires: 12/31/13

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Preferred Vendors

The Orange County Bar Association is pleased to provide you with a list of 2011 Preferred Vendors – a variety of businesses that have provided Central Floridians with time-tested, quality products and services, and are supporters of the Orange County Bar Association. We encourage you to take advantage of the products and services offered by these establishments. Many businesses on the list offer special promotions or discounts to help you continue to grow your practice and be successful both in the legal field and in the community.

Advertising The Baker Press, Inc. Finest quality printing since 1968 Dave Thompson • 3606 Silver Star Rd., Orlando, FL 32808 • 407-290-5800 x219 FindLaw, a Thomson Reuters business Websites and online marketing strategies To reach your local consultant, call 866-44-FINDLAW Living Magazines Inc./Vail Living Agency Innovative print & advertising design Catherine Hébert • P.O. Box 3905, Avon, CO 81620 • 970-331-6491 Banking M & I Bank, a part of BMO Financial Group Strength and stability in banking Monica Christopher • 501 E. Kentucky Blvd., #900, Tampa, FL 33602 • 813-204-1962 Catering Arthur’s Catering, Inc. Your event is as important to us as it is to you! Call us today. Mark A. Leggett • 860 Sunshine Ln., Altamonte Springs, FL 32714 • 407-331-1993 Legal Support Services

AAllen Bryant & Associates, Inc. Service of Process and a leading provider of litigation support for over 25 years. P.O. Box 3828, Orlando, FL 32802 • 407-872-0560 • info@aallen.com

LegalOne Partners, Inc. Paralegal firm outsourcing services to attorneys in most areas of law on an as-needed basis. 1004 Delridge Ave., Orlando, FL 32804 • 407-601-3966 • info@thinklegalone.com All Good Reporters, LLC Centrally located, All Good Reporters’ nationally certified real-time reporters “Capture Every Word”. Rita G. Meyer • P.O. Box 536084, Orlando, FL 32853 • 800-208-6291 rgm@AllGoodReporters.com Access Investigative Services, Inc. Civil & Criminal Investigations, Process Service Peter Cerone • 6239 Edgewater Dr., Ste. D-13, Orlando, FL 32810 • 407-447-6053 Boehm & Boehm Forensic Media Consulting Certified Comprehensive Litigation Support Solutions Florian Boehm • 5036 Dr. Phillips Blvd., Ste. 155, Orlando, FL 32819 • 407-405-8483 Riesdorph Reporting Group, Inc. We are a full-service court reporting firm committed to excellence and professionalism. Alex Guillermety • 150 N. Orange Ave., Ste. 418, Orlando, FL 32801 • 407-282-4067 Central Florida Reporters, Inc. Full-Service Court Reporting Firm Susan England • 105 E. Robinson St., Ste. 503, Orlando, FL 32801 • 407-422-5753 In Charge Education Foundation Online, Telephonic and Face to Face. Pre-filing Credit Counseling and Pre-discharge Debtor Education Beth Mason • 5750 Major Blvd., Ste. 310, Orlando, FL 32819 • 407-532-5759 Orange Reporting Florida’s Choice for Litigation Support Christa Walton • 1416 E. Robinson St., Orlando, FL 32801 • 407-898-4200 ProServe USA Service of Process/Skip Traces Rob Bamberg • 501 N. Magnolia Ave., Orlando, FL 32801 • 407-872-0707 Trial Consulting Services Trial Presentation, Research, Graphics, Video Rich O’Brien • 150 N. Orange Ave., Ste. 418, Orlando, FL 32801 • 407-367-4975 Westlaw, a Thomson Reuters business Westlaw, Legal Products and Services Barie Feuer • 407-749-9355 Charles Kiester • 321-356-5350 Miscellaneous Marsh U.S. Consumer, a service of Seabury & Smith, Inc. Professional Liability, Medical & Health Insurance Sharon Ecker • 3560 Lenox Rd., Ste. 2400, Atlanta, GA 30326 • 800-365-7335 Ext. 6435 Office Equipment/Services DEX imaging Copiers, Printers, Scanners & Document Management Michelle Nichols • 4126 John Young Pkwy., Orlando, FL 32804 • 407-294-4116 Professional Services JURIS Imaging & Graphics Providing Litigation Support Solutions to Law Firms throughout Central Florida. OCBA members receive 15% off by mentioning Vendor Marketplace Online. Carlos Vivanco • 100 E. Pine St., Ste. 606, Orlando, FL 32801 • 407-425-4244 MasterPay USA, LLC Members receive 15 % discount on customized payroll processing services and our “Perfect Payroll Promise.” Debbie Sonntag • 8879 W. Colonial Dr., # 154, Ocoee, FL 34761 • 407-374-166 The business listed herein (the “Vendors”) are not affiliated with the Orange County Bar Association (OCBA) and shall not under any circumstances be deemed to have any authority to act on behalf of the OCBA. The OCBA does not make, and expressly disclaims, any warranty, representation, responsibility, or guarantee as to (a) the quality or suitability of the Vendors, their products, or services, and (b) the duration or validity of any discount or other promotion offered by any of the Vendors.

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PhotoOps

Roetzel & Andress, LPA and its employees donated $5,320 to the American Red Cross Disaster Relief Fund to provide assistance to victims of the Japanese earthquake and tsunami that occurred in July. Shown are Joel Hass, CEO of the American Red Cross, and Roetzel & Andress partner John Boudet.

The Honorable David A. Baker, United States Magistrate Judge in and for the Middle District of Florida, was presented with the 2011 William M. Hoeveler Judicial Award at the annual meeting of The Florida Bar. Judge Baker was selected by The Florida Bar’s Committee on Professionalism for the prestigious award, which is given “to recognize a judge who best exemplifies strength of character, service and competence as a jurist, lawyer, and public servant.” This is the first time in the history of the award that a United States Magistrate Judge was selected for the honor.

Let the Orange County Bar Association Help Build Your Practice! Lawyer Referral and Information Service

he Lawyer Referral and Information Service is an excellent resource that will help you expand your client base and increase your income. In 2010, our LRIS program received more than 50,000 calls for the 280+ attorneys belonging to the program. Our LRIS Manager refers clients to you based on your practice area and the clients’ specific need. It’s a win-win situation! For L R I S application forms and additional information, go to www.orangecountybar.org, or call our L R I S Manager at 407-422-4551, ext. 281.

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New Associates

yuga, Attorney. Free for members. Contact: ctucker@legalaidocba.org; mcarbo@legalaidocba.org.

David F. Bear – McIntosh, Sawran & Cartaya, P.A. Carina Leeson – Men’s Divorce Law Firm

Speaking Engagements Ian L. Gilden, Ian L. Gilden, P.A., presented Questioning the Witness, Taking the Mystery out of Testifying at the Florida State Guardianship Association’s 24th Annual Conference in Orlando. Jill S. Schwartz, Jill S. Schwartz & Associates, P.A., recently spoke at The Florida Bar Annual Convention Presidential Showcase, presenting An Overview of Florida Workplace Law. Circuit Judges Reginald Whitehead and John Kest, along with OCBA attorneys Kimberly Hosley and Skinner Louis, spoke about the importance of professionalism in the study and practice of law with incoming students during orientation at FAMU College of Law on August 11, 1011. The panel presentation is part of an ongoing partnership between the OCBA’s Professionalism Committee and FAMU College of Law.

Events Sept. 15 – Legal Aid Society Barefoot Spa Day Fundraiser. Appointments available 3:00 p.m. to 9:00 p.m. The Barefoot Spa, 801 Virginia Dr., Orlando, FL 32803. Cost: $75. To make an appointment, call 407-539-1491. Sept. 26 – Fall Oath of Administration. 5:30 p.m. Orlando City Hall, 400 S. Orange Ave., Orlando, FL 32801. Free. RSVP by Sept. 22 to Laura Lee Shields at FlaLawyer@yahoo.com. Sept. 30 – YLS 20th Annual Golf Tournament, 8:00 a.m., Reunion Resorts Golf Course. Contact: Brett Renton at brenton@shutts. com or Jerry Lee Hanbery at jerry.hanbery@brockandscott.com. Oct. 12 – Central Florida Trial Lawyers Association Judicial Reception. Contact: Mary Ann Morgan at maryann@billingslawfirm. com. Oct. 20 – Lawyers for Literacy Spelling Bee. 6:00 p.m.-8:00 p.m. Doubletree Hotel, Downtown Orlando. Contact Daryl Gottlieb at dgottlieb@fisherlawfirm.com or Alana Brenner at alanabrenner@ hotmail.com for sponsorship and ticket information!

Seminars Sept. 7 – When Worlds Collide: The New Economy, Technology and the Future of the Legal Profession. Business Law Committee. 12:00 p.m. OCBA Center. CLE: 1.0. Speaker: Dustin Cole. Sponsor: Charles P. Castellon, P.A. Lunch provided. Contact: committee@ floridabusinesslaw.com. Sept. 8 – Pretrial Procedures and Orders: Getting Off to the Right Start. Brown Bag Lunch with Judge John M. Kest. 12:00 p.m.-1:15 p.m. Orange County Courthouse, 23rd Floor Judicial Conference Room. CLE: 1.5. Free. Please tell security that you will be attending the Brown Bag Lunch. Contact Diane Iacone at 407-836-0443 or ctjadi1@ocnjcc.org. Sept. 13 – Public Benefits. Legal Aid Society Lunchtime Training. 12:00 p.m.-1:30 p.m. Comerica Bank, 111 N. Magnolia Ave., Ste. 1000, Orlando, FL 32801. CLE pending. Speaker: Edward Dima-

Sept. 14 – 2010-2011 Legislative Update: Probate, Asset Protection, Litigation, Ethics. Estate, Guardianship & Trust Committee. 12:00 p.m.-1:00 p.m. OCBA Center. CLE: 1.0 pending. Sept. 16 – Tips on Working With Court Interpreters. Family Law Committee. 12:00 p.m.-1:00 p.m. OCBA Center. CLE: 1.0 pending. Sept. 21 – Notice Pleading Post Mortem: Impact of Iqbal/Twombly. Labor & Employment Committee. 11:30 a.m. OCBA Center. CLE: 1.0 pending. Speaker: David H. Spalter. Contact: mariew@ ocbanet.org. Sept. 27 – Basics of Guardianship Law. Solo & Small Firm Committee Seminar. 12:00 p.m.-1:00 p.m. OCBA Center. CLE: TBA. Contact: mariew@ocbanet.org. Sept. 27 – Mental Health Disorders in Children. Legal Aid Society Lunchtime Training (GAL Topic). 12:00 p.m.-1:30 p.m. Comerica Bank, 111 N. Magnolia Ave., Ste. 1000, Orlando, FL 32801. CLE pending. Speaker: Jennifer Schmidt, GAL Case Coordinator. Free for members. Contact: ctucker@legalaidocba.org; mcarbo@legalaidocba.org. Sept. 30 – I Swear To Tell The Truth…Polygraph Examination Procedure. Criminal Law Committee. 12:00 p.m. OCBA Center. CLE: 1.0 pending. Speaker: Donald Craig Harper. Contact: mariew@ ocbanet.org. Oct. 4 – Temporary Custody of Minor Children Using Chapter 751. LAS Lunchtime Training. 12:00 p.m.-1:30 p.m. Comerica Bank, 111 N. Magnolia Ave., Ste. 1000, Orlando, FL 32801. CLE pending. Speakers: Attorneys William Davis and Catherine Tucker. Free for members. Contact: ctucker@legalaidocba.org; mcarbo@ legalaidocba.org. Oct. 8 – Experts, E-Discovery, and Ethics, Oh My! Paralegal Section Seminar. 7:30 a.m.-5:00 p.m. Embassy Suites, 191 E. Pine Street, Orlando, Florida 32801. Speakers: Judge John M. Kest, Judge Antoinette Plogstedt, John Dill, Esq. Contact Amy Guy at 407601-4905. Oct. 13 – Brown Bag Lunch with Judge John M. Kest. Topic: TBA. 12:00 p.m.-1:15 p.m. Orange County Courthouse, 23rd Floor Judicial Conference Room. CLE: 1.5. Free. Please tell security that you will be attending the Brown Bag Lunch. Contact Diane Iacone at 407-836-0443 or ctjadi1@ocnjcc.org. Oct. 18 – Children’s Developmental and Medical Issues and Services in Orange County (GAL Topic). LAS Lunchtime Training. 12:00 p.m.-1:30 p.m. Comerica Bank, 111 N. Magnolia Ave., Ste. 1000, Orlando, FL 32801. CLE pending. Speaker: Attorney Ericka Garcia. Free for members. Contact: ctucker@legalaidocba.org; mcarbo@legalaidocba.org. Oct. 25 – Legal Malpractice. Solo & Small Firm Committee Seminar. 12:00 p.m.-1:00 p.m. OCBA Center. CLE: TBA. Contact: mariew@ocbanet.org. For updates, please check the OCBA website calendar.

An n o u ncements

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Ne w M e mbers

Regular

Latitha ALLADI

Clark and Washington, LLC 3975 S. Orange Blossom Tr. Ste.105 Orlando, FL 32839 407-219-5688 Jason BRESLIN

de Beaubien, Knight, Simmons, Mantzaris & Neal, LLP 332 N. Magnolia Ave. Orlando, FL 32801 407-422-2454 Shaterica N. BROWN

McDonald Toole Wiggins, P.A. 485 N. Keller Rd. Maitland, FL 32751 407-246-1800 Maya CALEV

Kaufman, Englett & Lynd, PLLC 111 N. Magnolia Ave., Ste. 1500 Orlando, FL 32801 407-513-1900 Jason T. DANIEL

Daniel Law Offices, P.A. 605 E. Robinson St., Ste. 100 Orlando, FL 32801 407-841-8357 Shannon N. DAVIS

Kaufman, Englett & Lynd, PLLC 111 N. Magnolia Ave., Ste. 1500 Orlando, FL 32801 407-513-1900 Sarah P. FAY

Law Office of Richard Culbertson 3200 Corrine Dr. Orlando, FL 32803 407-894-0888 JaTarra HILL

Law Office of JaTarra K. Hill, P.A. P.O. Box 470152 Lake Monroe, FL 32747 407-637-7317 Mark A. INTERLICCHIO

State Attorney’s Office 415 N. Orange Ave. Orlando, FL 32802 407-836-2419

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Courtney M. KING

Danielle A. RIGGIN

Flora A. PINDER

Brandon G. MARCUS

Richard W. SIEHL

Law Student

McDonald Toole Wiggins, P.A. 485 N. Keller Rd. Maitland, FL 32751 407-246-1800 Joseph D. Ort, P.L. 2739 S. Maguire Rd. Ocoee, FL 34761 407-656-4500

David H. MARGOLIS

State Attorney’s Office 415 N. Orange Ave. Orlando, FL 32801 407-927-2717

Earnest T. MATTHEWS

Cohen Battisti, Attorneys at Law 1211 Orange Ave., Ste. 200 Winter Park, FL 32789 407-478-4878 Samual A. MILLER

Akerman Senterfitt 420 S. Orange Ave., Ste. 1200 Orlando, FL 32801 407-423-4000 Crystal MINCEY

Karen Wonsetlet, P.A. 860 N. Orange Ave., #135 Orlando, FL 32814 407-770-0846 Baker & Hostetler, LLP 200 S. Orange Ave., Ste. 2300 Orlando, FL 32801 407-649-4076

Courtney R. SORIA

2328 Midtown Terr., Apt. 1034 Orlando, FL 32839 954-801-8696

United States District Court for the Middle District of Florida 401 W. Central Blvd., Ste. 1200 Orlando, FL 32801 407-835-4222 Suzanne E. Vazquez, P.A. P.O. Box 568337 Orlando, FL 32856 407-674-6967

Shante T. PRESSLEY

Kaufman, Englett & Lynd, PLLC 111 N. Magnolia Ave., Ste. 1500 Orlando, FL 32801 407-513-1900 David L. REDFEARN

The Tate Firm, PLLC P.O. Box 724 Keystone Heights, FL 32656 352-478-4555

William L. DONLEY

201 Beggs Ave. Orlando, FL 32801 407-254-3268 Nicole C. FEIGE

Principle Legal Offices, P.A. 1709 Providence Blvd. Deltona, FL 32725 386-626-9006

Coleman W. WATSON

6441 E. Colonial Dr. Orlando, FL 32807 321-206-5600

Jason S. DUEY

George J. TROVATO

John P. NOYES

Perez-Calhoun Law Firm, P.A. 1950 Lee Rd., Ste. 204 Winter Park, FL 32789 407-622-4772

408 Prairie Lake Dr. Fern Park, FL 32730 850-445-3539 Tiffany M. BURROUGHS

Christian W. WAUGH

Gina R. PEREZ-CALHOUN

Robert W. BORR

Karen M. SMITH

Kelley, Kronenberg, Gilmartin, et al. 20 N. Orange Ave., Ste.1207 Orlando, FL 32801 407-648-9450 Conrad & Scherer, LLP 633 S. Federal Hwy., 8th Flr. Fort Lauderdale, FL 33301 954-462-5500

Pinder Rehabilitation Services 706 Turnbull Ave., Ste. 301-302 Altamonte Springs, FL 32701 407-767-8175

4008 Maguire Blvd., Apt. 5208 Orlando, FL 32803 954-512-3526 Steven MILLER

5108 Old Cheney Hwy. Orlando, FL 32807 407-342-4276

State Attorney’s Office 415 N. Orange Ave. Orlando, FL 32801 407-836-1689

Mai V. NGUYEN

Baker & Hostetler, LLP 200 S. Orange Ave., Ste. 2300 Orlando, FL 32801 407-649-4058 Amanda F. WILSON

3138 Terry Brook Dr., #1408 Winter Park, FL 32792 803-445-4038 Jerrad L. PATTERSON

6249 Westgate Dr., Apt. 1506 Orlando, FL 32835 561-307-8234

Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 N. Eola Dr. Orlando, FL 32801 407-418-6220

Larry C. TABOR

Affiliate

1140 S. Orlando Ave., Apt. K3 Maitland, FL 32751 407-718-1458

Crystle L. CARRION

502 Dunraven Dr. Winter Park, FL 32792 407-539-2924 Mary C. TRAYNOR

Daniel Law Offices, P.A. 605 E. Robinson St., Ste. 100 Orlando, FL 32801 407-841-8375

www.orangecountybar.org

Jamila M. YOUNG

100 W. Grant St., Apt. 5069 Orlando, FL 32806 229-894-7444

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OCBA Online Membership Directory Be sure to check out your photo and contact information in our Online Membership Directory – a member benefit just for you! Join the Online Lawyer-to-Lawyer Specialty Index. For a nominal fee, list your practice areas and board certifications and begin taking referrals from your colleagues! Go to Member Login on the OCBA website at www.orangecountybar.org to access the Online Directory, sign up for the Lawyer-to-Lawyer Specialty Index, and edit your membership record and photo. For more information, contact Karen Fast, Membership Manager, at karenf@ocbanet.org or 407-422-4551, ext. 225.

Jerome P. McCauley

Graphic Design

, C.P.A., P.A.

Offering Niche Services:

▲ “Invisible Crime” Forensic Investigations – Elder/Senior Theft & Fraud ▲ Probate Litigation Support ▲ Experienced Trustee, Special Fiduciary & Personal Representative ▲ Fiduciary Accountings Altamonte Springs, FL • 407-869-0052 • fltaxpert@aol.com For more information, visit: WWW.FLTAXPERT.COM

Graphic designer for The Briefs

Our focused resources are your strategic assets.

Valuation & Litigation Services Business Valuations

970.331.6491

Litigation Support

Forensic Accounting

Adam T. Magill, MBA, AVA, CBA 801 Magnolia Ave, Ste 304, Orlando, FL 32803 407-233-4180 / 407-233-4182 Fax

The OCBA is pleased to offer these copying services at the Orange County Courthouse. Copies can be made conveniently and easily using coins, $1 and $5 bills, or credit and debit cards:Visa, MasterCard, and Discover. A four-copy minimum is required for credit or debit card transactions. Credit Card and Coin Changer - Resource Room on 3rd Floor

Thanks for your support of the OCBA! the Briefs September 2011 Vol. 79 No. 9

DEX imaging Copiers, Printers, Scanners & Document Management

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100%

Lynn B. Aust, P.L. Marcus & Myers, P.A. Marshall, Dennehey, Warner, Coleman & Goggin, P.A. McElyea & Barnard, P.A. McMichen, Cinami & Demps McMillen Law Firm, P.A. Benitez Law Group, P.L. Michael R. Walsh, P.A. Billings, Morgan & Boatwright, LLC Congratulations to Members Mooney Colvin, P.L. Bodiford Law Group of the OCBA’s 100% Club Murrah, Doyle and Wigle, P.A. Bonus McCabe Law Firm N. Diane Holmes, P.A. Bull and Associates, P.A. Neduchal & MaGee, P.A. Burr & Forman LLP Ossinsky & Cathcart, P.A. Calandrino Law Firm, P.A. Page, Eichenblatt, Bernbaum & Bennett, P.A. Carr Law Firm, P.A. Provencher & Simmons, P.A. Carsten & Ladan, P.A Ringer Henry Buckley & Seacord, PA Chaires, Brooderson & Guerrero, P.L. Rumberger, Kirk & Caldwell, P.A. Cohen Battisti, Attorneys at Law Sawyer & Sawyer, PA DeCiccio & Johnson SeifertMiller, LLC Dellecker Wilson King McKenna Ruffier & Sos, LLP Dempsey & Associates Southern Trial Counsel, PLC Dewitt Law Firm, P.A. Stovash, Case & Tingley, P.A. Diaz Law Swann & Hadley, P.A. Earle & Smith Trial Attorneys Tangel-Rodriguez & Associates Englert, Leite & Martin, P.L. The Aikin Family Law Group Faddis & Faddis, P.A. The Brennan Law Firm Fishback, Dominick, Bennett, Stepter, Ardman, The Carlyle Appellate Law Firm Ahlers & Langley, LLP The Draves Law Firm, P.A. Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A. The Elder Law Center of Kirson & Fuller Giles & Robinson, P.A. The Llabona Law Group Gregory S. Martin & Associates, P.A. The Law Office of Frank A. Hamner, P.A. Grossman & Grossman, P.A. The Law Offices of Terry L. Bledsoe, P.A. Harris, Harris, Bauerle & Sharma The Marks Law Firm, P.A. Higley & Szabo, P.A. The McMahon Law Group, P.A. Hilyard, Bogan & Palmer, P.A. The Morsch Law Group Innes Law Firm The Rosenthal Law Firm, P.A. James H. Monroe, P.A. The Skambis Law Firm Jill S. Schwartz & Associates, P.A. Troutman, Williams, Irvin, Green, Helms, Polich & Hemphill P.A. King, Blackwell, Downs & Zehnder, P.A. Vose Law Firm, LLC Kirkconnell, Lindsey, Snure, & Ponall, P.A. Warner + Warner, P.L. Korshak & Associates, P.A. Weiss, Grunor & Weiss Kosto & Rotella, P.A. West, Green & Associates, P.L. Law Office of Frank P. Remsen, P.A. Wicker, Smith, O’Hara, McCoy & Ford, P.A. Law Offices of Blair T. Jackson, P.A. William G. Osborne, P.A. Law Offices of Neal T. McShane, P.A. Winderweedle, Haines, Ward & Woodman, P.A Law Offices of Walter F. Benanati Credit Attorney, P.A. Wolff, Hill, McFarlin & Herron, P.A. Legal Aid Society of the OCBA Wooten, Kimbrough and Normand, P.A. Lewis & Crichton, Attorneys at Law Yergey and Yergey, P.A. Allen & Murphy, P.A. Allen, Norton & Blue, P.A. Amy E. Goodblatt, P.A. Anthony-Smith Law, P.A. Banker Lopez Gassler P.A.

Is your firm part of the 100% Club? Firms with two or more attorneys and 100% membership in the OCBA can belong! If you believe your firm is eligible, please call the Membership Department at 407-422-4551, ext. 225.

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CLUB

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CLASSIFIED ADS EMPLOYMENT ATTORNEYS WITH 3 + YEARS of mergers, acquisitions, sales and corporate transactional experience wanted for Orlando and new Villages Offices of Bogin, Munns & Munns. Great opportunity to join dynamic firm. Send resume in confidence to reply box 701. ESTATE PLANNING/PROBATE ATTORNEYS with 3 + years experience wanted for Melbourne, Orlando and new Villages Offices of Bogin, Munns & Munns. Great opportunity to join dynamic firm. Send resume in confidence to reply box 701. EXPERIENCED COMMERCIAL LITIGATION LEGAL ASSISTANT NEEDED for very busy downtown Orlando law firm with growing commercial litigation practice. Foreclosure, construction litigation, and title claims litigation experience is a plus. Must be able to draft some pleadings and have a pro-active attitude toward work assignments. Great work environment and competitive salary and benefits. Send resume in confidence to jholt@southmilhausen or via facsimile to (407) 539-2679. ALVAREZ, SAMBOL & WINTHROP, P.A, A Full Service AV rated firm has immediate openings for Commercial Litigation and General Liability Practice Groups. Successful candidates will have five to ten years experience. Portable business is a plus. Please forward resume in confidence to, Firm Administrator, Alvarez, Sambol & Winthrop, P.A., P.O. Box 3511, Orlando, Florida 32802 or email to hrf@aswpa.com. DOWNTOWN ORLANDO AV-RATED CIVIL LITIGATION FIRM seeks associate attorney with 2 to 5 years experience with insurance defense and commercial litigation. Send resumé, writing sample and brief cover letter outlining past successes and salary requirements to: jean@hrkmlaw.com. ORLANDO BASED A-V RATED FIRM seeks attorney experienced in family law. General litigation experience a plus. Creative compensation packages available with excellent benefits and working conditions. Send resume in confidence to denise@boginmunns.com or fax to 407-578-2128. “AV” RATED CIVIL LITIGATION FIRM seeking litigation attorneys for our Orlando office. Minimum 5 years litigation experience. Strong advocacy skills required. We offer competitive salary, plus comprehensive benefits package. Send resume to: Hiring Partner, Ogden, Sullivan & O’Connor, PA, 113 S. Armenia Avenue, Tampa, FL 33609, or to cbostic@ogdensullivan.com SPECIALTY DEFENSE FIRM handling first party property/liability

coverage issues and complex contractual/tort litigation seeks attorneys with 3-5 and 5-10 years litigation experience for its Maitland office. Insurance defense experience preferred. Fax/Mail resume to: Office Manager (407) 647-9966, The Rock Law Group, P.A., 1760 Fennell St., Maitland, Florida 32751 ORLANDO FIRM SEEKS BI-LINGUAL ATTORNEY with 2-4 years experienced personal injury attorney for our trial team. Outstanding opportunity to join growing dynamic firm with excellent benefits and compensation package. Send resume in confidence to reply box 701.

OFFICE SPACE SHARED

SHARE NEWLY RENOVATED OFFICE DOWNTOWN Class A Bldg. - Covered Parking - Conference Room - All Facilities Included. Please contact Eddie Reiss at 407-447-5884 or emrholdings@aol.com. NICE SIZE OFFICES AVAILABLE for sublease. Two attorneys in large suite with shared receptionist, ample free parking; 2 conference rooms; 2 kitchens, copier & fax machines included. Contact Linda at 407-8941525. DOWNTOWN OFFICE SPACE: Luxury office space for space sharing across from courthouse for one attorney and separate, adjoining space for one staff. Garage parking, shared reception area, receptionist, conference room, library, kitchen, copier, fax and Internet included. 407-425-4044

OFFICE SPACE FOR SALE/RENT/ LEASE

ATTRACTIVE-One Story Condo Office Retired Attorney’s Office FOR LEASE South of Downtown 2869 Delaney Ave Orlando, FL 32806 Located in Well-landscaped Condo Park Ample Parking; Furnished/Unfurnished 1132 sq ft with two private restrooms *Office Furniture Also For Sale* Call Charles L. Steinberg 407-841-2261 or 407-851-7333 OFFICE BUILDING/SPACE: MAITLAND AVENUE – Completely renovated three story historic house (circa 1920). Hardwood floors, porches, large offices and conference room, ample parking, monument signage on Maitland Avenue, available immediately. Please contact John Finnigan at 407-478-3700 or email John@Finniganlaw.com.

To reply to BRIEFS box number, address as follows: Briefs Reply Box # _____ c/o Orange County Bar Association, P.O. Box 530085 • Orlando, FL 32853-0085

County Courthouses Easy access on and off Interstate 4 Lobby, 2 Conference Rooms, each with a flat panel TV Breakroom, Restrooms, Phones, Copier, Receptionist to answer phones 781 Douglas Ave., Altamonte Springs Contact Tracey at (407) 389-4LAW(4529) LOCAL OPHTHALMOLOGIST LOOKING TO LEASE fully furnished, move-in ready, luxury downtown condo. 2 bedroom, 2 bath, with parking space. Perfect for new law associate. Available August 1, 2011. $2400 monthly, 7 month minimum. This condo is directly lakefront with floor to ceiling windows and amazing panoramic views from your 14th floor balcony of Lake Eola, Thornton Park, and Disney. The building features 24 hour security, concierge, with pool and spa, 2 fitness centers, conference rooms, and cyber café. Walk to restaurants, grocery, shopping and more. Great downtown location convenient to everything. Contact Anne, 407-595-5716 FOR LEASE – Thornton Park/Colonial Town. 1200 S.F. Free standing building. Oak floors, French doors. 2 private offices, conference room, reception. Eat-in kitchen/beak room/storage. On site parking. Wheelchair ramp. Call REALTOR/owner 407-894-4077 and see web site: www.robinsonstreetoffice. com. OFFICE BLDG FOR SALE / LEASE: Near intersection of Kaley & Ferncreek Ave. convenient to Downtown &/or Juvenile Ct. on Michigan St. 1600 sq. ft. Open floor plan with separate executive office and conference room. Owner financing available. Call John @ (407) 222-6712 FERNCREEK PROFESSIONAL CENTER – FIRST MONTH FREE upon signing one year lease. Office space available just minutes away from downtown Orlando. Free parking and signage on busy road. Receptionist, conference rooms, phone system, fax machine, copier, high speed DSL, scanner, and other services provided. Call (407) 898-4848. LAW OFFICE AVAILABLE; private, second floor suite, approximately 1000 square feet overlooking Lake Ivanhoe. Available immediately. Ample parking; contact: david@yergeylaw. com; 407-843-0430 office; 407-2478756 cell. David Yergey, Jr. is an OCBA member

WINTER PARK – 2,000 sq ft free standing office for two professionals and up to 5 staff. 407-647-7526

VIRTUAL OFFICE SPACE AVAILABLE-convenient downtown location. Full service including receptionist, mail service, conference rooms, fax machine, copy machine, etc. Package rates available-customize according to your needs. Call Cori at 407-956-1000 for pricing and more details.

OFFICE SPACE AVAILABLE (along with secretarial space) 1-5 offices Midway between Orange and Seminole

OFFICE SPACE AVAILABLE FOR RENT. Approximately 1,537 sq ft., with furniture, phone system,

the Briefs September 2011 Vol. 79 No. 9

www.orangecountybar.org

receptionist area and 4 window offices, 2 large enough for attorneys and 2 for paralegals. Attorneys preferred. Please contact Denise Singler at 407-578-1334 or e-mail denise@boginmunns.com. OFFICE/CONFERENCE SPACE FOR RENT: Downtown Orlando Executive Business Center- newly renovated fully furnished offices for rent. Includes: live receptionist, phone, internet, conference/mediation/seminar space, and FREE parking. Contact Janna (407)447-1919 for more information. DOWNTOWN – NEAR COURTHOUSE - Elegantly restored historic building on the corner of E. Pine and Court Street. Offices for 1-6 attorneys and staff. Share receptionist, conference rooms, etc. 407-426-2060 or tmhoepker@yahoo.com FURNISHED SUITES – near downtown, free-standing bldg w/ dedicated parking, includes phone, Internet, utilities, conf room, lobby area and secretarial space. Monthly lease. $1000 – Call Becki at 407-481-2888. www. BumbyOffices.com

PROFESSIONAL SERVICES U.S. BUSINESS IMMIGRATION. AV RATED. EB-5 Foreign Investors; Regional Center Projects Financed. Edward Beshara; 407-571-6878 ebeshara@ besharapa.com RETIRED CIVIL TRIAL ATTORNEY seeks part time work on hourly basis. AV-Rated 407-862-6674 APPELLATE BRIEF WRITING – both civil and criminal. Competitive rates. Contact Katharine Ballingrud. khballin@gmail.com; (407) 514-2621. ATTORNEYS PHOTOS SPECIALS - Now is the time to Update your professional bio Photos. Our exclusive Digital Slimming and Digital Make-up makes your new photo the best ever 407-240-4954 Orlandophotographer.com/attorneys THE LEGAL MEDICINE GROUP - “Excellence in Medical Records PreScreening Reviews and Affidavits”. * Litigation Support Services * All Board Certified Reviewers and Expert Witness * Medical Malpractice, Personal Injury and Product Liability * 407-790-4080 legalmedicinegroup@yahoo.com www. legalmedicinegroup.com

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Barry Richard, Esq.

OCBA Calendar

Counsel for The Florida Bar Thursday, September 22, 2011 11:30 a.m. The Ballroom at Church St. RSVP by Friday, September 16, 2011 reservations@ocbanet.org

SEPTEMBER - OCTOBER 2011

September 1 Federal Judicial Relations 12:00 p.m. • Judge Conway’s Chambers 5 Labor Day – Office Closed Law Committee Seminar 7 Business When Worlds Collide: The New Economy, Technology and the Future of the Legal Profession 12:00 p.m. • Bar Center

Social Security Committee 12:00 p.m. • Bar Center

Brown Bag Lunch with Judge John Kest Pretrial Procedures and Orders: Getting Off to the Right Start 12:00 p.m. • Courthouse 23rd Flr. Judicial Conference Rm. Compensation Committee 9 Workers’ 11:45 a.m. • Smokey Bones Lunchtime Training 13 LAS Public Benefits

12:00 p.m. • Comerica Bank Elder Law Committee 12:00 p.m. • Bar Center