Orange County Bar Association – The Briefs – May 2019

Tony Sos, Esq.

OCBA President 2019-2020

Inside this Issue: President’s Message A Tribute to Bar Leaders Richard S. Dellinger, Esq.

May 2019 Vol. 87 No. 4

Professionalism Committee Remarks Upon Receipt of the Orange County Bar Association 2019 James G. Glazebrook Memorial Bar Service Award The Honorable Frederick J. Lauten

Richard S. Dellinger, Esq. OCBA President 2018-2019

Renew your

Insurance Law CommitteeOCBA membership Catastrophe Claims: Insurance Coverage today! for Natural and Man-Made Disasters Claramargaret H. Groover, Esq. 2019 OCBA Gala Laissez Les Bon Temps Roulez

Your Child Injury Attorneys Contact us for co-counsel opportunities

SERIOUS INJURIES. PROVEN RESULTS. MEDICAL MALPRACTICE | WRONGFUL DEATH | PERSONAL INJURY Orlando 407.841.9866

theBriefs May 2019 Vol. 87 No. 4

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www.orangecountybar.org

Fort Lauderdale 954.523.9922

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the Briefs

Contents 3

19

President’s Message A Tribute to Bar Leaders Richard S. Dellinger, Esq.

Editor Kate T. Hollis, Esq.

OCBA February Luncheon

20-21

4

Clerk’s Corner 2019 Report to the Citizens of Orange County Tiffany Moore Russell, Esq.

5

Professionalism Committee Remarks Upon Receipt of the Orange County Bar Association 2019 James G. Glazebrook Memorial Bar Service Award The Honorable Frederick J. Lauten

7

May 2019 Luncheon 2019-2020 Installation of Officers and Awards Luncheon

9

Insurance Law Committee Catastrophe Claims: Insurance Coverage for Natural and Man-Made Disasters Claramargaret H. Groover, Esq.

10-11

2019 OCBA Gala Laissez Les Bon Temps Rouler

Associate Editors Karen L. Middlekauff, Esq. & Robyn M. Kramer, Esq. Hearsay Columnist Linnea M. Eberhart, Esq.

22

Legal Aid Society Teaching Tips Special Considerations When Drafting Simple Estate Planning Documents for the LGBTQ+ Community Michael E. Morris, Esq. Jamos "Jay" Mobley, Esq.

YLS on the Move Heather M. Meglino, Esq. SideBar Alena V. Baker, Esq.

w OFFICERS Richard S. Dellinger, Esq., President Anthony F. Sos, Esq., President-elect LaShawnda K. Jackson, Esq., Treasurer Eric C. Reed, Esq., Secretary w EXECUTIVE COUNCIL Euribiades Cerrud, II, Esq. Amber N. Davis, Esq. William A. Davis, Jr., Esq. Thomas B. Feiter, Esq. Kate T. Hollis, Esq. Eric B. Jontz, Esq. Kristopher J. Kest, Esq. Karen L. Persis, Esq. Gary S. Salzman, Esq. Jessica A. Travis, Esq. William D. Umansky, Esq. M. Ryan Williams, Esq. Elizabeth F. McCausland, Esq., Ex-officio Jill Davis, Esq., YLS President w EXECUTIVE DIRECTOR Kimberly Homer, Esq. w Advertising & Sponsorship Manager Joan Giovanni w Publication Services Peggy Storch

24

Paralegal Post The Florida Bar FRP Enrichment Committee Is on the Move Shelly Zambo, FRP

25

Hearsay Linnea M. Eberhart, Esq.

26

SideBar Alena V. Baker, Esq.

29

Staff Tribute Kim Homer, Executive Director

YLS on the Move Heather M. Meglino, Esq.

13

Workers' Compensation Committee DeLisle & the Demise of Florida's Daubert Standard: Unanswered Questions for Workers’ Compensation Practitioners

Neil A. Ambekar, Esq.

32

New Members

33

Announcements

16-17

34

18

36

OCBA 5th Annual Law Day 5K OCBA 2019 Professionalism Awards Presentation & Reception

Classifieds Calendar

880 North Orange Avenue • Orlando, FL 32801 (407) 422-4551 • Fax (407) 843-3470 www.orangecountybar.org Legal Aid Society 407-841-8310 Citizen Dispute 407-423-5732 Family Law Mediation 407-423-5732 Lawyer Referral Service 407-422-4537 Orange County Foreclosure Mediation 407-515-4330 Young Lawyers Section 407-422-4551

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 ©2019 Orange County Bar Association. All rights reserved. Designer: Catherine E. Hébert Cover photo: Flo Boehm, Boehm & Boehm Forensic Media Consulting ISSN 1947-3968

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©2019

theBriefs May 2019 Vol. 87 No. 4

President’sMessage

May 2019 W Richard S. Dellinger, Esq.

theBriefs May 2019 Vol. 87 No. 4

A Tribute to Bar Leaders

e all know that not all leaders are the same.

There are different styles of leaders who serve with varying measures of success.

There are some leaders, like William Wallace, who jump to the front of the pack, run head first into the next issue, and hope their team follows. There are other leaders, like King Henry VIII, who lead through threats and intimidation. There are laissezfaire leaders who take a hands-off approach, allowing the team to ebb and flow and react “organically.” And there are bureaucratic leaders who follow policies and precedent because “that is the way it was always done.” There are other leaders, such as Bill Gates, who lead by encouraging their team to innovate, follow their ideals, and work together.

Much has been written about leadership styles, but most agree that the Bill Gates approach is the most effective in a professional setting. Management scholars label this approach “transformative leadership.” The hallmarks of transformative leaders are those who trust a team to accomplish tasks on its own, provide guidance as needed for the sake of the organization as a whole, and motivate team members to push a little beyond their comfort zone for the sake of the organization.

When I worked in restaurants and on farms, most of the leaders were either autocratic (like William Wallace) or dictatorial (like Henry VIII). But leadership styles changed as I moved to more professional jobs.

While there are still some autocratic or dictatorial leaders in the professional setting, most of the leaders are either transformative or bureaucratic.

I have been at Lowndes for 20 years and learned a lot from our managing partner, Bill Dymond.

Generally, the Lowndes Law Firm is managed through transparency and consensus building.

Partners are given access to information and encouraged to work together for their mutual success. We have many committees and task forces that work through long-term and short-term challenges. And our managing partner works hard to build consensus among partners before decisions are made. Through committees, our partners participate and equally join in the management and operation of the law firm, and when a decision is finally reached, we know we have “buy in” from the stakeholders. Our law firm has been in existence since 1969, and this leadership style has worked very well for us.

As a leader in the OCBA, I modeled my actions on leaders I respect, such as those at Lowndes. OCBA www.orangecountybar.org

teams were built, supported, and encouraged to work for the sake of the organization. My first task was to appoint committee leaders and fill vacancies on the Executive Council. Then, we worked with bar staff to support programming and build new programs. We are fortunate to have a full-time team of bar staff as support, but also fortunate to have leaders like you who serve as section and committee leaders. Through your hard work, we accomplished many things this year. We supported and expanded our existing programming while creating new programs and events. We built strong relationships with local voluntary bars, community leaders, and our judiciary. And because of you, this year has been a resounding success.

We are fortunate to have a very capable, passionate OCBA staff that is dedicated to supporting you and the OCBA’s mission. Executive director Kim Homer motivates the team and manages bar operations superbly. Our finances are managed by Mildred Artau; membership and marketing are managed by Karen Fast; and the Lawyer Referral and Information Service (“LRIS”) is managed by Candice Maull. And, while we lost Peggy Storch to semi-retirement, we gained Joan Giovanni as our sponsorship and advertising manager, Ashley Norris as our events and seminars manager, and Shirley Duran and Johnmichael Fernandez in the LRIS department. We were very fortunate to retain Olivia Ramos in the Citizen’s Dispute program, Carolyn Cochrane in member services, and Gloria Warrick as the receptionist.

This year saw growth in our membership thanks in part to a membership drive led by OCBA president-elect Tony Sos and Karen Fast. We remained engaged with our members by holding monthly luncheons, hosting breakfast meetings, publishing The Briefs, and presenting more than 92 CLE seminars. Our monthly breakfast and networking meetings, Member Perks, were organized by OCBA Executive Council member Eric Reed. The programs were well done and participants enjoyed hearing from great speakers, including Hal Kantor, Mayanne Downs, the Honorable Wilfredo Martinez, Cheney Mason, Meena Hirani, Arti Hirani, Scott Gabrielson, Bruce Blackwell, David Yergey, and Stumpy Harris. Our committees presented CLEs, with the most activity coming from the Bankruptcy; Business; Estate, Guardianship, and Trusts; and Family Law committees. And we created a Civil Rights Committee this year, where chair Camila continued page 6

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Clerk’sCorner

I Tiffany Moore Russell, Esq. Orange County Clerk of Courts

2019 Report to the Citizens of Orange County

feel transparency in government is one of the most important responsibilities of an elected official. That is why I am pleased to share with you that my office has completed the Orange County Clerk of Court’s 2019 Report to the Citizens.

The report includes important information about how my office leverages technology to enhance the customer experience, provides access to justice, implements public safety mandates, and serves our community.

Our strategic plan is outlined, as is our philosophy on the importance of holding ourselves accountable to it. Each strategic goal reinforces our strong commitment to quality in all aspects of our work.

The report details many of this past year’s successes, such as our website enhancements to add

a shopping cart and appointments online, expand payment options, and a feature that allows customers to find an upcoming court date.

I am so grateful for a dedicated and caring staff that enthusiastically seeks ways to improve our processes and customer service. Some of our greatest accomplishments started with ideas from front-line deputy clerks.

I hope you’ll take some time to read the 2019 Report to the Citizens and see all we are doing to create positive experiences for our customers, partners, and the community. You can find our 2019 report on the Clerk’s Office website at www. myorangeclerk.com.

Tiffany Moore Russell, Esq., Orange County Clerk of Courts, has been a member of the OCBA since 2004.

MARK YOUR CALENDARS

It’s Time to Update Your Photo for the OCBA Online

Membership Directory

J.Russell Photography, which specializes in executive portraits, will be at the OCBA to take your free professional portrait for the OCBA Online Membership Directory: Portrait Dates: June 17-28, 2019

A J.Russell Photography representative will contact you in the near future to schedule an appointment. However, feel free to call J.Russell Photography at 512-266-8921 to schedule your appointment, or schedule online at www.goJRussell.com (choose “Schedule” from the menu on the left side of the website, and then choose “Guest Account” to get to the calendar).

All sittings are free of charge, and the photo you select for the Online Membership Directory will be published online at no charge. J.Russell Photography will also take additional shots and provide you with an opportunity to purchase a photo package for your professional or personal use.

We are pleased to bring you this free member service. J.Russell has more than 90 years of combined professional portrait photography experience and is the nation’s leading executive portrait studio. They have worked with more than 750 professional organizations and photographed more than 250,000 attorneys and physicians.

(For professional photos, appropriate dress is suggested. Ladies: a bold or bright colored long sleeved outfit.

Gentlemen: a dark jacket and tie.)

PAGE 4 www.orangecountybar.org

theBriefs May 2019 Vol. 87 No. 4

ProfessionalismCommittee

I

Remarks Upon Receipt of the Orange County Bar Association 2019 James G. Glazebrook Memorial Bar Service Award

am deeply honored to receive the James G. Glazebrook award. Thank you to the members of the nominating committee and to all those who had a hand in my receiving this award. I knew Judge Glazebrook, and he exemplified all that is good and honorable about our profession and about being a judge. I am humbled to receive an award named in his honor and I will cherish this award for the rest of my life.

So much has been written about professionalism The Honorable Frederick J. Lauten and ethics and lawyers that I doubt I can add anyChief Judge thing of significance to the narrative. I also wonder if I am skilled enough to address the topic Ninth Judicial Circuit Court without being preachy or pedantic. In preparing for my remarks, I researched other professions to see if they devote as much attention to professionalism as we do. While doctors, accountants, ministers, teachers, and others have codes of conduct and have written about ethics in their professions, it strikes me that they have not spent nearly as much time as we have on the topic. Why is that?

Perhaps, it is because we labor in an adversarial system where each side owes – within the ethical boundaries – all of their energy, skill, and talent to zealously represent the interests of one’s client.

This built-in competitiveness sets us apart from most other professions – with the result that we talk constantly, sometimes obsessively, about ethics and professionalism. The very nature of our adversarial system places us in roles where we compete for clients, for income, for success. Our system, if we are not careful and don’t pay attention, can devolve into inappropriate behavior and unprofessional behavior. So we need to pay more attention than other professions to ethics and professionalism. While I used to think we obsess about professionalism, I have come to believe that our local and state bars give appropriate attention to the topic, given the nature of our system.

Having been on the bench for 26 years, I am many years removed from the pressures, struggles, and ethical challenges lawyers encounter in the daily practice of law. There are more qualified speakers on the subject of lawyers and ethics, and two of them are being honored today. But I do have a quarter century of experience sitting on the bench and I have had the honor to train new judges, so I thought it appropriate to share what we tell new judges about the professional responsibilities judges owe to lawyers, to their clients, and to our system of justice. theBriefs May 2019 Vol. 87 No. 4

www.orangecountybar.org

Some of you have heard me say that the first session presented to new judges at the Florida Judicial College is taught by Justice Major Harding. He asks new judges to describe the qualities possessed by good judges and the qualities of bad judges. He concludes the session by summarizing in one simple, short sentence what makes a good judge – “A good judge gives a fair and courteous hearing and a prompt ruling.” For all the words written about being a judge, this sentence summarizes the essence of judging better than anything else I have ever heard, so I would like to talk about this maxim for a moment.

Allow me to start with the concept of giving a courteous hearing. Barring some emergency, it is courteous for the judge to start scheduled matters on time. It is simply impolite and thus unprofessional for the court to make lawyers, their clients, and witnesses wait on the court to arrive. Understandably, sometimes a trial or hearing takes longer than anticipated or an emergency arises that must be addressed, delaying court. But, as a routine, judges should be on time and manage their dockets so matters are heard when scheduled.

At the hearing, started on time, a judge should respect the dignity and worth of everyone who appears in court, from the richest to the poorest, from the most knowledgeable to the least experienced, from the well loved and respected to those whom the community has prejudged and condemned. Of course, this respect is due to all regardless of color or creed, gender or orientation.

Historically, the court system has not always lived up to this standard, but I hope we are constantly evolving toward a higher order so that we do live up to these standards.

Judges wield enormous power, so we teach new judges to be humble and patient in the exercise of that power. We ask them to think twice before using the word contempt, much less applying that power. We ask judges to appreciate that we impose sentences, but we do not sit on the bench with the power of the divinity to condemn human beings. To realize, in other words, that we are sentencing another human being and that, even in that moment, the individual has dignity.

A good judge gives a fair hearing. That is self-evident. In ensuring a hearing is fair, a judge must apply the rules of procedure and protocol. Enforcing those rules is sometimes easier said than

continued page 8

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President’sMessage continued from page 3

Pachon Silva and co-chair Paul Shafranski did a great job in organizing our first-ever Civil Rights Law CLE and programming.

The ABA designates May 1 as Law Day, which has been known for years at the OCBA as Law Week. Even that is a misnomer; our celebration of the rule of law should rightly be called Law Months.

Committee chairs Andrew Irvin and Lorraine N. Pitre did a great job organizing the committee this year, which put together a poster and speech contest, a DUI Prevention Program, mock courtroom demonstrations to elementary and high school children, a middle school theater program, a naturalization ceremony, a Law Merit Badge day, a job shadow program, and community service awards.

The 5K Committee, led by Mary J. Walter and Ryan Williams, with the support of Joan Giovanni, developed the Fifth Annual Law Day 5K at Lake Baldwin held on Saturday, March 9. This year we saw both record participation and record-setting fundraising. At a time when health and wellness is more of a focus for lawyers, the 5K showed that OCBA members are serious about their health and serious about supporting the run’s beneficiaries, the Legal Aid Society of the Orange County Bar Association, Inc., and the OCBA Foundation, Inc. Past OCBA president Liz McCausland agreed to continue to serve with Karen Persis as co-chair of our Health and Wellness Committee, where they worked to support healthy initiatives for our members. Our Social Committee, led by the “Jens” (Jennifer Smith-Thomas and Jennifer Morando), organized our traditional poker tournament, trivia contest, and happy hour and, as if that wasn’t enough, also organized the first-ever Amazing Race Judicata. The Amazing Race Judicata was the vision of Bart Vickers, and we were happy to see it come to fruition this year.

We made diversity in the bar a priority this year. Our Diversity & Inclusion Committee, led by chair Ahmad El-Gendi and co-chair Brian Lawrence, developed and implemented a written diversity plan, led multiple quarterly roundtable discussions, organized a diversity picnic, and launched the first-ever Woolfork Diversity Award.

We focused on diversity in our programming, and we highlighted ways that embracing differences makes our profession better. This year saw the further merging and melding of our OCBA and local voluntary bars. Leadership and members of

our bar joined and participated in events held by the Paul C. Perkins Bar Association (“PCPBA”); Central Florida Association for Women Lawyers (“CFAWL”); Greater Orlando Asian American Bar Association; Hispanic Bar Association of Central Florida (“HBACF”); and Central Florida Gay and Lesbian Law Association (“CFGALLA”).

We were happy to see a large contingent of PCPBA members running in the 5K just a few days after our joint luncheon. Executive Council members and our executive director stood with CFGALLA at the Pride Parade; we organized a charitable event and joint luncheon with HBACF; and we are happy to welcome this year’s CFAWL president, Arti Hirani, to the OCBA Executive Council for 2019-2020.

After the loss of the business court due to inadequate court funding, we made court funding a priority for the year. Our Business Law Committee, led by chair Patricia R. McConnell and co-chair Ronald Edwards, led the charge on court funding initiatives by holding discussions and educational programming; welcoming state senators to speak about the topic; drafting legislation; and lobbying the legislature.

Members wrote letters and we gained a favorable ally in the fight, the Orlando Economic Partnership. The court funding effort was also a priority for the OCBA Judicial Relations Committee, where the Honorable Eric DuBois served as chair.

I write this message during the legislative session, so we do not know the result. But I am cautiously optimistic that we will receive the funding for the two judges recommended by the Florida Supreme Court.

Our Gala Committee, led by chair Amber Davis and co-chair Karen Persis, organized another great Mardi Gras-themed OCBA event at the Winter Park Racquet Club.

Gala attendees ate king cake and crawfish, followed the second line around the building, and gulped down hurricanes with other lawyers and the judiciary. The Gala was a fun event and raised more than $21,000 for the OCBA Foundation. Executive Council member Amber Davis not only organized the Gala, but she volunteered to trademark the OCBA brand and led a committee that developed a policy for consistent use of the OCBA logo and name by various committees and subcommittees.

The OCBA Foundation, led by president Eric Jontz, continued its community education programs, specifically with the Law Explorer program, which educates students about the legal system. For the second year, the Foundation awarded a scholarship to deserving students who will go on to be the future leaders in the legal community.

PAGE 6 www.orangecountybar.org

In addition to serving as Foundation president, Eric was an Executive Council member and active participant in our membership drive. He also spearheaded the revival of three dormant committees: In-House Counsel and General Counsel; Tax Law; and Real Property.

Another very active member of the bar was Kate Hollis. As chair of the Professionalism Committee Awards Subcommittee, Kate led efforts to seek nominations for and vet nominees that resulted in the selection of our annual Professionalism Awards recipients. This year, the awards were presented to the Honorable Fred Lauten, Nick Shannin, and Ryan Williams at a ceremony on March 8, 2019. The keynote speaker was Justice Alan Lawson of the Florida Supreme Court. Kate also served as a member of the Executive Council and as the editorin-chief of The Briefs. It is difficult to find a member with a more positive attitude and stronger work ethic than Kate.

Recognizing that the practice of law is evolving, our Technology Committee actively engaged our members. The committee, led by co-chairs Lisa Gong Guerrero and Barbara Leach, brought The Florida Bar YLD Tech Show to our bar on April 23, 2019. Participants heard from president-elect John Stewart and others who spoke about metadata, security threats, and mobile devices in the practice.

Another priority for the year was access to justice. Throughout the year, the Legal Aid Society has continued to do good work for our community under the leadership of president Wynne McFarlin and executive director Mary Anne De Petrillo. Our LRIS program grew exponentially under committee chair Tony Sos and LRIS staff manager Candice Maull. We significantly increased referrals in the important areas of family law and consumer law. In addition, we continued to support the Ask-a-Lawyer partnership with the Clerk of Court, Tiffany Moore Russell, Esq. It was my honor and privilege to work with these dedicated professionals throughout the past year. The OCBA stands strong due to the leadership of these fine professionals. Moving forward, I am heartened to see many more leaders stepping forward to apply their own stamp on the OCBA. Thank you for a great year of service. I look forward to seeing you all as the past president of the OCBA. Richard S. Dellinger, Esq., a shareholder with Lowndes, Drosdick, Doster, Kantor & Reed, P.A., practices in the litigation department in the areas of business litigation, trust and estate litigation, and significant dissolution of marriage. He has been a member of the OCBA since 1999.

theBriefs May 2019 Vol. 87 No. 4

OCBA LuncheonThursday May 23, 2019

You are cordially invited to join members of the Orange County Bar Association for the installation of officers and board members of Orange County Bar Association Legal Aid Society of the Orange County Bar Association, Inc. OCBA Foundation, Inc. OCBA Young Lawyers Section OCBA Paralegal Section

Swearing in by The Honorable Frederick J. Lauten, Chief Judge, Ninth Judicial Circuit Court With remarks by Richard S. Dellinger, Esq., 2018-2019 OCBA President and Anthony F. Sos, Esq., 2019-2020 OCBA President Thursday, May 23, 2019 11:30 a.m. – 1:00 p.m.

Embassy Suites by Hilton Downtown Orlando 191 East Pine Street, Orlando, Florida 32801

Please RSVP by Monday, May 20, 2019 RSVPs will not be accepted after May 20, 2019 RSVP through the OCBA Store www.orangecountybar.org/store Cancellations must be received no later than May 20, 2019 To cancel, contact Ashley Norris at ashleyn@ocbanet.org

There is no June Luncheon

Supporting sponsors:

theBriefs May 2019 Vol. 87 No. 4

www.orangecountybar.org

PAGE 7

ProfessionalismCommittee

stress, anxiety, and money. Sometimes a judge has to take matters under advisement to issue the correct ruling, but time generally does not make ruling any easier or the decision wiser. And, too much delay causes those affected by a decision to lose confidence in the decision maker. So we try to teach these values and others to new judges. And it helps experienced judges to be reminded of these values throughout their careers.

I don’t know if I have always lived up to this simple standard my entire career, but I know I have tried. And I know my colleagues try to live up to these standards and values. It has been the greatest honor of my professional career to sit as a judge in the Ninth Judicial Circuit. I work with outstanding men and women, who day in

continued from page 5

done, but if litigants cannot depend on the enforcement of the substantive and procedural rules we agree to live by, then the value of precedent is lost, the predictability of outcomes is undermined, and the law becomes a free-for-all. So, a fair judge enforces rules, and sometime lawyers don’t like that! A fair judge also must ensure that a certain decorum exists in the courtroom.

If a courtroom is loud, disorganized, or unruly, if participants or the public cannot hear or see what is transpiring in the courtroom, then the trust and respect due to courts of law is diminished.

Finally, a judge owes the litigants a prompt ruling. Unnecessary or unusual delays cause lawyers and litigants significant

and day out, work as hard as they can to live up to the standard I have enunciated, making this one of the best circuits in the state and a fabulous place to work. I can’t imagine not coming to this courthouse every day to work with my colleagues as we strive to provide justice to those who enter this building. But, soon I will have to get used to that new reality. I venture into that new space bolstered by the honor you have bestowed upon me today. Again, thank you so very much for this recognition, particularly at this stage in my career. It means more to me than words can express and I will cherish this award today and for years to come.

The Honorable Frederick Lauten is the Chief Judge of the Ninth Judicial Circuit Court. He has been a member of the OCBA since 1993.

PLEASE JOIN US FOR A

IN HONOR OF HONORABLE CHIEF JUDGE

JUNE 20, 2019

FOUR O’CLOCK IN THE AFTERNOON DR. PHILLIPS CENTER FOR THE PERFORMING ARTS ALEXIS AND JIM PUGH THEATER

445 SOUTH MAGNOLIA AVENUE, ORLANDO, FLORIDA 32801 Please R.S.V.P at www.lautenretirement.eventbrite.com

Thank You!

to all of the OCBA for the honor and privilege of serving on the OCBA Executive Council

Invite your colleagues to join the OCBA today!

Go to: www.orangecountybar.org

-Bill Davis

to join online and see our calendar of upcoming events, seminars & activities!

407-422-4551, ext. 225

PAGE 8

www.orangecountybar.org

theBriefs May 2019 Vol. 87 No. 4

Insurance LawCommittee

I Claramargaret H. Groover, Esq.

Catastrophe Claims: Insurance Coverage for Natural and Man-Made Disasters

personally feel that this year’s must-have insurance treatise is “Catastrophe Claims: Insurance Coverage for Natural and Man-Made Disasters.”1 This volume is co-edited by Dennis J. Wall, a respected member of our Orange County Bar Association, who is well known for his expertise in insurance matters. Mr. Wall, his coeditors, John K. DiMugno and Steven Plitt, and other authors present an up-to-date analysis of insurance law and practice arising from contemporary events.

What is new?

Cases are taken straight from recent national headlines, including those arising from Hurricane Katrina; the cyber-hacking of the Target Corporation; terrorism at the World Trade Center; floods and fires; the Northridge Earthquake; and subprime mortgage litigation, as well as others. The authors and editors also address trends in conditions that could lead to more catastrophic events, such as climate change (irrespective of the cause of climate change), and changes in the regulatory scheme in the wake of current administration Executive Orders.

The most significant recent additions are two new chapters devoted to the 83-year-old Social Security Disability Insurance Program, with the reminder that Social Security is insurance. One chapter lays out the basis and status of the Act and one addresses Social Security Disability Insurance. In the editors’ words, “These are the twin premises behind both chapters: First, Social Security Old-Age Insurance and Social Security Disability Insurance are insurance. Second, these are insurance contracts between the federal government and the people of the United States, governed by principles written in the Constitution of the United States.”

Senior lawyers and lawyers who counsel the aged or disabled client recognize that even a modest return can ameliorate the catastrophic cost of living once an individual can no longer work. Here, the author reminds us of the constitutional underpinnings of this insurance legislation that once

theBriefs May 2019 Vol. 87 No. 4

www.orangecountybar.org

helped an economically defeated nation recover from the Great Depression after 1929. The initial chapter on the status of the Act is subtitled: “An outline, not an argument.”

Topics Covered The range of topics spans from fundamentals of insurance policies and risk management; fundamentals of claims handling, appraisals, and underwriting as well as litigation; agent and broker liability; causation in coverage determination; changes in homeowner property insurance; valuation and proof of business interruption losses post-catastrophe; insurance for disaster losses due to human activity; flood and earthquake insurance as well as disasters that are both natural and manmade; financial disasters, such as the subprime crisis, and director and officer liability insurance; and social security and disability insurance to the post-modern insurance for cyberattacks.

What I found surprising was that this treatise is very reader friendly even while covering highly technical subjects. For example, in one part, the authors cite Dodd-Frank, legislation intended to protect us from financial institutions that are “too big to fail,” and, in the same paragraph, include a quote from William Faulkner.2 In other words, the tone of the treatise is intellectually intriguing and entertaining on many levels as well as authoritative on the law.

I highly recommend this treatise to any lawyer whose practice touches on insurable risk.

Claramargaret H. Groover, Esq., is of counsel to Becker & Poliakoff in Orlando. She is board certified in Construction Law and is a member of The Florida Bar Real Property Probate and Trust Section’s Insurance and Surety Committee. She has been a member of the OCBA since 1992.

Thompson-Reuters, November 2017.

“The past is never dead. It’s not even past.” William Faulkner, Requiem for a Nun (New York, Vintage, 2011), p.73.

1 2

PAGE 9

Staff Tribute: Kim Homer, Executive Director

Kim Homer

A

ttorney Kimberly A. Homer was hired by the OCBA in May 2010 to create and manage the Residential Mortgage Foreclosure Mediation Program – now the Foreclosure Mediation Program – at the direction of then chief judge Belvin Perry. While similar programs in other circuits were unsustainable, Kim, along with OCBA leadership, succeeded in keeping the program in Orange County viable for years, thus affording hundreds of families the opportunity to attend mediation in an effort to save their homes.

Seeing a future for her with the OCBA, then executive director Brant Bittner promoted Kim to assistant executive director, where she also assumed responsibility for the Lawyer Referral and Information Service, and the Citizen Dispute Settlement and Family Law Mediation programs. Upon Brant’s retirement in 2014, the Executive Council recognized that Kim’s unique perspective, professionalism, leadership, and management abilities made her a natural fit to become executive director.

Among her many contributions, Kim was on the front line in developing the OCBA’s response to the Pulse Nightclub

tragedy. In addition to managing the staff’s crisis response efforts, Kim volunteered her time to assist at the City of Orlando Family Assistance Center, working side-by-side daily with the Legal Aid Society to provide legal advice, resource information, and comfort to victims and families. She has overseen the creation of new programs, maintained the smooth operation of the bar, and diligently served the needs of our members for the past nine years. She will be greatly missed by the staff, the leadership, and all OCBA members.

Kim has had a positive impact on everyone who knows her.

Although her last day at the OCBA will be May 31, 2019, the relationships she has built – both personally and professionally – have left an indelible mark on the bar and she will not be forgotten. In their own words...

Kim Homer has been the Executive Director of the OCBA since October of 2014 and worked for the OCBA since 2010. Kim has grown the membership, supported existed programming, launched new programs, and kept our organization healthy, supportive, and fiscally sound. It has been my honor and pleasure to work with Kim during the past year. I will miss Kim. The OCBA will miss Kim. Thank you, Kim, for all you have done for the OCBA. Richard S. Dellinger, Esq. OCBA President, 2018-2019 ...

Kim Homer is absolutely wonderful both personally and professionally. She is kind, smart, and trustworthy. It is an honor to call her a friend. I will miss her very much.

Tony Sos, Esq. OCBA President-elect, 20182019

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When we look back at Kim Homer’s legacy with the OCBA, we will remember that she was a trusted confidant, someone wise beyond her years, and a woman of genuine character. Everything she did was for the good of the bar without any self-interest or motivation. She not only remained engaged with the OCBA staff and the Executive Council, but she was a true advocate for each and every one of our members. She will be missed!

LaShawnda K. Jackson, Esq. OCBA Treasurer, 2018-2019 ...

Thank you for all your hard work. It was always a pleasure dealing with you.

Eric C. Reed, Esq. OCBA Secretary, 2018-2019 ...

I consider working with Kim one of the greatest privileges of my Presidential year. There is no doubt in my mind that one of the reasons our bar is so respected is because of her. Her wisdom, guidance, professionalism, passion, and concern for the OCBA staff and members are what I will remember the most about working with her. We love you and miss you already Kim! Liz McCausland, Esq. OCBA President, 2017-2018 ...

The bar is in a better place due to your dedicated service, and the community benefitted from your extreme escalation of outreach in the aftermath of Pulse. Thank you for your service, for (figuratively) driving the bar forward, and for (literally) driving some of us all the way to Tallahassee for Justice Lawson’s investiture.

Wiley S. Boston, Esq. OCBA President, 2016-2017 ...

Kim was invaluable as our Executive Director. Because Kim is a licensed attorney, not only

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did she have the management and people skills to lead our exceptionally gifted staff, she also provided great insight to our Executive Council. Given her legal background, Kim was able to see issues prior Executive Directors may have missed. I trusted Kim unconditionally and will miss her dearly.

Jamie Billotte Moses OCBA President, 2015-2016 ...

It’s my year as President, and we suddenly need a new Executive Director with savvy, experience, and knowledge of all our unique programs. Desperate times called for desperate measures, so I used my Haikuanator and voila, our savior, in three lines – Kim the Amazing: Director, Lawyer, Leader; Best friend to our Bar! Kim, thanks for answering the call and being our Hero; Godspeed!

Nick Shannin, Esq. OCBA President, 2014-2015, Year One of the Homer Era ...

Kim Homer is one of the best things to have ever happened to the OCBA. Kim’s outstanding leadership turned our Foreclosure Mediation Program into the model for the state, and when Brant Bittner retired, Kim’s skills, talents, and professionalism made her the obvious choice to lead our beloved Bar. Thank you very much, Kim, for your service and commitment to our legal community. You are the very best!

Thomas A. Zehnder, Esq. OCBA President, 2011-2012 ...

Kim has been invaluable to the OCBA. I first observed Kim’s good work when she designed the Foreclosure Mediation Program. Kim also assembled an impressive team, and the OCBA’s theBriefs May 2019 Vol. 87 No. 4

program soon became a model for other bar organizations in Florida. When Kim became Executive Director, we were able to see the full extent of her leadership skills and professionalism. Thank you, Kim, for all that you have done for the OCBA! Frank Bedell, Esq. OCBA President, 2010-2011 ...

Kim has been a tremendous ‘ambassador’ for the OCBA! She has been the wind beneath the wings of progress, growth and innovation. Thank you for helping us steer the ‘Best Bar Association in the Nation’! You will be truly missed.

Blessings, Mary Ann Morgan, Esq. OCBA President, 2001-2002 ...

Kim has been an outstanding leader, colleague, collaborator, and pro bono supporter and attorney. She also has become a dear and close friend. She has moved our Bar forward in service to the community. Her efforts have increased Bar diversity and member engagement.

Under her leadership, Legal Aid and the Orange County Bar have worked together seamlessly to assist the public, including helping Pulse survivors and their families. I wish her the very best for the future, because she is the best.

Mary Anne De Petrillo, Esq. Executive Director, Legal Aid Society of the Orange County Bar Association, Inc., 1984-Present ...

Kim, Actions speak louder than words. You epitomize action. When I think of you, the words caring, professional, and true leader come to mind!

Bill Umansky, Esq. OCBA Executive Council, 2007-2012; 2016-Present ...

I have served on the Executive Council as an elected member for 10 years now. During that period of time, Kim Homer proved over and over again to be a tremendous and probably the most valuable asset to the OCBA. She will be sorely missed. I wish her the best in all of her future endeavors.

Gary S. Salzman, Esq. OCBA Executive Council, 2009-Present ...

Kim’s leadership and extensive impact on the OCBA’s programs and its members over the last several years have been substantial and theBriefs May 2019 Vol. 87 No. 4

will leave a long-lasting legacy. Her drive and energy have inspired advances in our bar and community that are unparalleled. I am so very proud of Kim and even more proud to call her my friend. I wish Kim well in her new endeavors as Birmingham welcomes her back home. I’ll miss you!

Mary Ann Etzler, Esq. Executive Council, 2010-2018 ...

Kim has been an absolute pleasure to work with over the years and she will be missed immensely. I will be praying for her and her mother during these difficult times.

Amber Davis, Esq. Executive Council, 2016-Present ...

Kim, I will miss you! Thanks for your hard work and dedication. Thanks for your friendship!

Bill Davis, Esq. OCBA Executive Council, 2016-Present ...

Thank you so much, Kim, for your dedication to our profession, our membership, and the Orlando community. You showed grit, grace, and leadership throughout your tenure but particularly during the Pulse aftermath, and our Bar is forever indebted to you for your service. We were lucky to have you as our ED for as long as we did, and you will be truly missed.

Karen Persis, Esq. OCBA Executive Council, 2017-Present ...

When I took over as co-chair of the Business Law Committee, it was Kim’s leadership that allowed us to revive the committee. She always has a smile, an answer, and a soothing southern drawl. The OCBA has flourished, becoming more diverse and united under her guidance as Executive Director, which reflects her open-door policy and willingness to help. All characteristics of a truly invaluable friend and leader. You shall be missed.

Euribiades Cerrud, Esq. OCBA Executive Council, 2018-Present ...

You have always provided great insight and guidance and gone above and beyond to help.

I have enjoyed working with you over the years on so many OCBA projects, but most of all, I have enjoyed becoming friends. I’ll miss you, my Birthday Buddy!

Kate T. Hollis, Esq. OCBA Executive Council, 2018-Present The Briefs Editor, 2018-Present www.orangecountybar.org

Kim, We are going to miss your tireless work in making the OCBA one of the best bars in the country! Thank you for your dedication, enthusiasm, and being a part of our family. I wish you all the success in your next chapter.

Eric Jontz, Esq. Executive Council and OCBA Foundation President, 2018-Present ...

Kim, thank you for your years of service to the OCBA and our community. I’ve been inspired by your positivity and dedication, and I have loved working with you over the past year to ensure the continued success of the Young Lawyers Section. You will be greatly missed.

Jill Davis, Esq. OCBA Young Lawyers Section President, 2018-2019 ...

As a new Executive Director, Kim Homer was so welcoming and willing to do anything to help me. Her leaving is not only a loss for the Orange County Bar but for all the Voluntary Bars in the State.

Craig Shoup Executive Director, Jacksonville Bar Association ...

Not only will we miss her guidance and leadership, but the office will not be the same without her sense of humor. The OCBA staff works in a collaborative environment, but not a meeting ends without a hearty laugh or warm giggle thanks to Kim Homer. She has made the OCBA staff into a family.

Karen Fast OCBA Strategic Marketing and Membership Manager ...

I will always appreciate how supportive Kim has been. I feel fortunate to have had the opportunity to work for her and learn from her.

She will be missed!

Candice Maull, CP OCBA LRIS & Foreclosure Mediation Program Manager ...

I will miss Kim terribly. She has been so supportive and created the environment anyone would dream to have in any job. I will never forget her particular laugh!!! Great sense of humor. Kim, you have made the OCBA the best place to work. As a person, you are a real gem! It shows all around you! Love you, Kim! Mildred Rivera Artau OCBA Accounting Manager

PAGE 11

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theBriefs May 2019 Vol. 87 No. 4

Workers' CompensationCommittee

F

DeLisle & the Demise of Florida’s Daubert Standard: Unanswered Questions for Workers’ Compensation Practitioners

rye v. United States, 293 F. 1013 (D.C. Cir. 1923) held that “general acceptance” in a particular scientific field was the appropriate standard for admission of scientific evidence.1 The Frye test became pervasive over the years in federal and state litigation, including in Florida courts.2

Neil A. Ambekar, Esq.

Seventy years after Frye, the Supreme Court of the United States decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In Daubert, the Court determined that Rule 702 of the Federal Rules of Evidence had superseded the common law Frye standard.3 Rule 702 established the following new test for admission of expert testimony, now labeled the Daubert standard: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.4 Under Article V, Section 2(a) of the Florida Constitution, the Florida Supreme Court has the exclusive authority to “adopt rules for the practice and procedure in all courts…” Allen v. Butterworth, 756 So.2d 52, 59 (Fla. 2000). In 1976, the Florida legislature enacted the state’s first Evidence Code. Beginning in 1979, the Florida Supreme Court (“the Court”) periodically adopted the Code and its amendments as rules of court, “to the extent [they are] procedural.”5 However, the Court occasionally rejected legislative amendments to the code.6 In 2013, the Florida legislature amended § 90.702, Fla. Stat., adopting a near-verbatim version of the Daubert standard.7 Under Article V, Section 2(a) of the Florida Constitution, the legislature may override the Court’s rejections via a two-thirds majority. The amendment to § 90.702 failed to obtain the supermajority required to override the existing Frye standard. In 2017, without deciding whether the Daubert standard was substantive or procedural, the Court declined to adopt the legislature’s amendment to § 90.702, Fla. Stat., to the

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extent that it was procedural.8 Then, in 2018, the question of whether the standard was substantive came squarely before the Court in DeLisle v. Crane Co., 258 So.3d 1219 (Fla. 2018). In DeLisle, the Court discussed whether the new rule was substantive or procedural, whether it was bound by it, and whether Daubert was good policy.9 Ultimately, the Court declined to adopt the new rule on the grounds of legislative overreach and its preference for the existing Frye standard.10 These determinations were, of course, the Court’s prerogative. However, DeLisle states that §90.702 is a statute “that solely regulates the action of litigants in court proceedings.”11 This statement was incorrect because the Florida Evidence Code – § 90.702 included – also regulates workers’ compensation proceedings, which are not “court proceedings,” but take place in the Office of the Judges of Compensation Claims (“OJCC”).12 The OJCC’s jurists are called Judges of Compensation Claims (“JCCs”). The OJCC is part of the Division of Administrative Hearings (“DOAH”), within the Department of Management Services, and thus is an executive branch agency. Having been overlooked in the Court’s analysis, workers’ compensation is also overlooked in the decretal portion of DeLisle. The opinion does not mention the OJCC or workers’ compensation hearings, and therefore leaves the OJCC in limbo as to the applicable standard for admitting expert testimony.

In Johnson v. Krehling Industries/Travelers Insurance, an OJCC decision issued just a month after DeLisle, a JCC in Fort Myers held that Daubert no longer applies to OJCC proceedings.13 Interpreting DeLisle as holding that §90.702 was “unconstitutional,” the JCC in Johnson held that the Court would not require it to apply an unconstitutional standard.14 This ruling, however, overlooked an important distinction. In 1993, the legislature transferred the power to make OJCC procedural rules from the Court to the OJCC itself.15 The Court has recognized that it “does not have [inherent] jurisdiction . . . to adopt rules of practice and procedure for an executive branch agency,” such as the OJCC.16 Indeed, in a concurrence, Judge Wetherell of the First District Court of Appeal relied on this distinction, stating that the argument that Daubert did not apply in workers’ compensation proceedings “was recently considered – and rejected as meritless.” 17 continued page 30

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theBriefs May 2019 Vol. 87 No. 4

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theBriefs May 2019 Vol. 87 No. 4

Thank You to Our Sponsors & Community Partners

OCBA 5th Annual Law Day 5K March 9, 2019 Lake Baldwin Park

Gold Cole, Scott & Kissane

Silver Orange Legal Colling Gilbert Wright & Carter Lynx Legal Services Special Counsel / D4 Bronze Shannin Law Firm Taitt Law Milestone Reporting The LaRue Firm Marge Raeder Court Reporter U.S. Legal Support Sanchez and Eggebrecht Veritext Legal Solutions Breakfast Fishback Dominick Water Table ShuffieldLowman Supporting Deborah Poindexter Carmona Law Salfi Law Precision Forensic Consultants Barbara Leach Law Jewett Orthopaedic Clinic Accurate Serve Orlando Mile Markers Seacoast Bank Southeast Fraud Investigation Services Accurate Serve Orlando Community Partners FreshPoint RJRjr Photography Fit2Run Florida Fitness Concepts Jacob Dickson Personal Fitness Fitwell Performance – Gregory Ellerbe Companions For Courage Benefitting Legal Aid Society of the Orange County Bar Association, Inc. Orange County Bar Association Foundation, Inc.

Photos: Robert J. Rivera See more photos at: https://www.facebook.com/ocbalawday5K/

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PAGE 17

OCBA 2019 Professionalism Awards Presentation & Reception March 8, 2019

Orange County Courthouse Sponsored by Milestone Reporting Richard S. Dellinger OCBA President Nick Shannin

Nicholas A. Shannin William Trickel, Jr. Professionalism Award The Honorable Frederick J. Lauten James G. Glazebrook Memorial Bar Service Award Ryan Williams Lawrence G. Mathews, Jr. Young Lawyer Professionalism Award

Hon. Frederick Lauten Hon. Alicia Latimore Ryan Williams

Sponsor Milestone Reporting – Evelyn Quintana

Kate Hollis, Tony Sos Hon. John Kest, Hon. Alan Lawson PAGE 18

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theBriefs May 2019 Vol. 87 No. 4

OCBA February Luncheon February 28, 2019

Embassy Suites by Hilton Downtown Orlando The Honorable Mary S. Scriven

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theBriefs May 2019 Vol. 87 No. 4

2019 OCBA Gala

Laissez Les Bon Temps Rouler February 23, 2019

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Wiley and Jackie Boston, Richard and Alisa Dellinger

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theBriefs May 2019 Vol. 87 No. 4

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PAGE 21

Legal Aid SocietyTeaching Tips Special Considerations When Drafting Simple Estate Planning Documents for the LGBTQ+ Community

E Michael E. Morris, Esq.

Jamos "Jay" Mobley, Esq.

ven simple estate planning can be complicated. When combined with the complexities of same-sex relationships/marriages as well as an evolving array of laws, estate planning requires a special attention to detail. Recently, I asked Michael E. Morris, Esq., to help shed some light on the issues that come up in estate planning for members of the LGBTQ+ community. Michael, who is a board member of the Florida Association of LGBT Lawyers & Allies and a member of Central Florida Gay & Lesbian Lawyers Association, wrote the following list of issues to consider when drafting estate planning documents for LGBTQ+ clients.

1. Multiple Marriages, Civil Unions, Domestic Partnerships – Where the law is not completely settled in an area, it is better to err on the side of caution in drafting documents. Prior to the Obergerfell decision,1 there was a hodgepodge of regulations and statutes regarding same-sex, civil unions, and domestic partnerships. It is incumbent upon the practitioner to verify the full history and legal status of any past relationships for each LGBTQ+ client. Remember, also, that couples may think of themselves as married when they are not. Several states automatically converted civil unions to marriages, while others did not. These considerations become important when preparing documents for the individual or the couple.

2. Effects of Marriage – Even though marriage for same-sex couples is legal now, unfortunately we cannot always assume that it will be in the future. To allow for possible future changes in the law, it is important to use flexible language such as “spouse and partner” when describing the relationship of parties. In addition to describing the couple’s relationship, it is critical to identify each individual by name in order to avoid potential confusion about the parties involved. As there are spousal presumptions, obviously those are important, but it is also important to state that the parties want all the rights and responsibilities of a spouse to apply to the named spouse and partner.

3. Designation of Children – Some same-sex couples may have adopted children separately, have two mothers or two fathers listed on the birth certificate, or have children from previous marriages. Therefore, think carefully about how assets pass and how the children are named and identified in documents for both of the individuals in the relationship. You may want to indicate in documents that a certain person is to be treated

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as if they were a child of two persons, but you still must go through all the formalities required to leave property to that child.

4. Family Relationships – Name People Left Out of the Will – If the couple has family members who are estranged, it is important to name persons you are leaving out of the will because you believe they have been otherwise provided for in their lifetimes and not out of any lack of affection. If you do not name them, they can later claim you forgot about them.

5. Gender Markers – If you have clients who have changed their gender marker, be sensitive about putting the new gender information in their documents. You should also include language indicating that pronouns are inclusive, and not exclusive, to dissuade any such attack on the documents as somehow being incorrect.

6. Declaration Naming Preneed Guardian – If the couple does not have close family ties, you may want to consider naming a guardian in this document before a guardian is needed. This will help prevent a fight over who should be designated as the guardian if someone becomes incapacitated under Chapter 744.

7. Statement of Authority to Make Disposition of Remains – Now that Florida allows for a pre-designation of how remains can be disposed of, you will want to execute a document pursuant to Section 497.005, Florida Statutes. This is particularly true if the couple has strained family relationships. Otherwise, the statutory presumptions for disposal will remain in place. This will help prevent others from disregarding the deceased’s wishes.

8. Real Estate Deeds – Always review any realestate deeds to ensure they are in line with the person’s wishes, especially with regard to premarital purchases, later separate purchases, and their known wishes. Also, make sure that any deeds intended to be marital indicate that the ownership is through tenants by the entirety. You can also have tenants with a joint right of survivorship and/or tenants in common when desired by the parties, with the understanding that this may cause complications for the title companies, which have been slower to react to changes in the law.

9. General Durable Power of Attorney – LGBTQ+ individuals can grant decision-making authority through general durable powers of attortheBriefs May 2019 Vol. 87 No. 4

ney. The power is broad and sweeping. It may not be suitable in all cases, but in the case of couples who have been together for a long time, may be appropriate. The legislature now requires parties to initial almost every grant of power, and I like to mirror that for all grants of power so that people realize what they are granting.

10. Revocations of General Durable Power of Attorney – In the event of a break-up for a long-term couple, there are procedures to try and blunt the force of a general durable power of attorney. You can use recording and actual notifications with certified mail to potential users to help soften the blow of such a broad grant of power, but there is still a risk of the durable power of attorney being used before you can rush to obtain a divorce or even a restraining order.

11. Designation of Health Care Surrogate – These are helpful in granting access to those who are not a spouse and in clarifying wishes of an individual or a couple. They often can clarify what happens when both members of a same-sex couple are incapacitated at the same time as well.

12. HIPAA Releases – It is important for health-care surrogate documents to contain appropriate HIPAA releases so that hospitals and clinics can release information sufficient to help the couple make decisions.

In closing, you will need to consider your LGBTQ+ clients’ needs, just as you would any client, in order to tailor their documents to them. We find that most LGBTQ+ clients, without any significant assets, need a Last Will & Testament, Living Will, Designation of Health Care Surrogate, General Durable Power of Attorney, Statement of Authority to Make Disposition of Remains, and Declaration of Preneed Guardian.

Michael’s tips on this complex issue and his work on behalf of the LGBTQ+ community is very much appreciated. In keeping with his spirit of giving back to the LGBTQ+ community and in remembrance of the Pulse tragedy, the Legal Aid Society will be holding a Simple Estate Planning Clinic for members of the LGBTQ+ community on June 7, 2019, where volunteer attorneys will prepare a will and related estate documents for free.

For more information, please contact Jay Mobley at jmobley@ legalaidocba.org, or 407-841-8310. For more information about how to become a Legal Aid financial donor, contact Donna Haynes, development director, at dhaynes@legalaidocba.org, or 407-515-1850.

Michael E. Morris, Esq., is the founding partner at Law Office of Michael E. Morris. His practice focuses on family law, bankruptcy, general civil litigation, and simple estate planning. He is a board member of the Florida Association of LGBT Lawyers & Allies and a member of Central Florida Gay & Lesbian Lawyers Association. He has been a member of the OCBA since 2019.

Jamos “Jay” Mobley, Esq., is the consumer/homeless/veterans attorney at the Legal Aid Society of the Orange County Bar Association, Inc., and has been a member of the OCBA since 2012.

Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

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Westlaw offers new OCBA members a 10% discount on the annual fee for services for your first year of OCBA membership. • Jeff Werth • 407-334-8808 • Jeff.Werth@tr.com

•Office Equipment / Services•

Verizon Wireless – Receive significant discounts on wireless calling plans, as well as discounts on accessories, devices and smartphones. Eligibility requirements apply. Visit NPP to learn more and to start saving.

Best Buy for Business – Best Buy for Business offers top tier pricing on over 150,000 items. Discounts vary upon item category. Enroll with NPP and start saving today!

Office Depot – With more than 16,000 in-stock office supply products, Office Depot has an extensive variety of items. Enroll in premier Office Depot pricing through NPP. Level(3) – Toll-free audio conferencing for only 2 cents per minute; no contract, setup or monthly fee. Additional telecomm solutions available. Enroll with NPP and start saving today!

•Professional Services•

Seacoast Bank – Your Florida community bank • Scott Leitner, AVP – Director of Attorney Services • 250 N. Orange Avenue, Suite 100, Orlando FL 32801 • 407-434-8800 • Scott.Leitner@SeacoastBank.com Florida Lawyers Mutual Insurance Company – Created by The Florida Bar, Florida Lawyers Mutual provides high quality professional liability insurance to help protect Florida lawyers and their clients, while providing personal service that no one can match. • 800-633-6458 The businesses 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.

theBriefs May 2019 Vol. 87 No. 4

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ParalegalPost

The Florida Bar FRP Enrichment Committee Is on the Move

T Shelly Zambo, FRP

he future is bright for Florida Registered Paralegals (“FRP”). The inaugural meeting of The Florida Bar’s newly formed Florida Registered Paralegal Enrichment Committee was held at the Bar’s Winter Meeting on January 8, 2019, in Orlando. The mission of the Paralegal Enrichment Committee is to bring more awareness to the legal community about how valuable Florida Registered Paralegals are to the legal profession.

The committee members consist of 40 FRPs from throughout Florida who have been appointed by The Florida Bar president, Michelle Suskauer, Esq., based upon each individual’s background and experience as a FRP and interest in promoting the profession. Wendy Toscano, Esq., Hilary Creary, Esq., Frank Digon-Greer, Esq., and Terry Hill also attended the meeting. Wendy Toscano sits on both the FRP Eligibility and Compliance Committee and the FRP Enrichment Committee. Hilary Creary has been appointed as the Board of Governor’s Liaison. Assistant director of the Programs Division, Frank Digon-Greer, is the staff member appointed to the committee by The Florida Bar. Terry Hill is the division director of the Programs Division at The Florida Bar, where he leads a team of five department heads and 65 staff members.

Committee chair, Lori Spangler, FRP, and committee co-vice chairs, Wendy Toscano and Margo Valenti, formed the following four subcommittees

whose members chose the chair for their committees: FRP Awareness Committee chair: Patricia C. DeRamus, ACP, FRP; Communication Committee chair: Margo Valenti, FRP; CLE Committee chair: Michelle M. Arty, ACP, FRP; and Special Project Committee chair: Laura Zaharian, FRP. Members of the Enrichment Committee were asked to choose their subcommittee, and they broke out into their respective groups to create the committee’s mission statement and goals.

The purpose of the subcommittee formation is to better serve the legal community and to bring awareness to legal professionals of the benefits of becoming a Florida Registered Paralegal.

The mission statements were defined for each subcommittee. The FRP Awareness Subcommittee will create and promote awareness of the Florida Registered Paralegal Program and its benefits through outreach among the legal community.

The Communications Subcommittee will convey the objectives of the FRP Enrichment Committee and its appointed subcommittees through various forms of communication pursuant to the guidelines of The Florida Bar. The CLE Subcommittee will organize and coordinate meaningful CLE seminars directed to the overall enrichment of the paralegal profession. The Special Project Committee’s primary focus is to plan and present a special CLE program and reception at The Florida Bar’s Annual Convention. Please be on the lookout for an email blast to register for the June 2019 Annual Convention in Boca Raton at the Boca Raton Resort & Club.

Expect to see more from the members of the FRP Enrichment Committee as they strive to increase awareness and promote the benefits of FRP membership throughout the state.

Shelly Zambo, FRP, is a paralegal at Cole, Scott & Kissane, P.A.

Paralegal Section – The Florida Bar 2019 Winter Meeting PAGE 24

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Hearsay...

When he worked, he really worked.

But when he played, he really PLAYED. –Dr. Seuss feel like I need to remind everyone, including myself, that it is almost summer! Our profession is as demanding as it is rewarding at times, but we all need that reminder to let go every once in a while and embrace life outside of our office.

Take that vacation with your kids, go out to lunch with a colleague, do what makes you happy and gets you out from behind your desk! We are fortunate to live and work in a place the rest of the world dreams about visiting, so let’s take full advantage of all that Central Florida has to offer this summer. Rest assured that the work will still be there when you return, sunburnt and refreshed.

On that note, here are some enterprising OCBA members who have more than earned themselves a vacation this summer:

I Linnea M. Eberhart, Esq.

Honors and Awards

Elizabeth A. Green, Esq., partner at BakerHostetler, was recognized at the 13th Annual Turnaround Awards Gala in March by The M&A Advisor and received the Consumer Staples Deal of the Year Award.

Richard B. Schwamm, Esq., shareholder at Haliczer Pettis & Schwamm P.A., has become a Fellow of the American College of Trial Lawyers.

On the Move

Michael Detzel, Esq., has joined Holland & Knight LLP’s Orlando office as a partner. He focuses his practice on helping institutional clients detect, respond to, and resolve complex fraud schemes, routinely serving as advisor, investigator, and as an advocate in litigation and appeals.

Andrea L. Diederich, Esq., was named a firm shareholder at Marshall Dennehey Warner Coleman & Goggin, where she is a member of the Health Care Department. She focuses her practice on the defense of matters involving medical malpractice, premises liability and the Americans with Disabilities Act. Jessica Hew, Esq., has joined the North American Title Insurance Company as vice president, underwriting counsel, and state agency manager in Florida.

C. Andrew Roy, Esq., was named a firm shareholder at Winderweedle, Haines, Ward & Woodman, P.A. He serves as general counsel to business clients and practices in the areas of bankruptcy/ restructuring, state and federal litigation, including appeals and corporate transactions.

Chanel A. Mosley, Esq., was named a firm shareholder at Marshall Dennehey Warner Coleman & Goggin, where she is a member of the theBriefs May 2019 Vol. 87 No. 4

health care department, representing hospitals, physicians, long-term care facilities, and other health care providers against claims involving medical malpractice, nursing home negligence, and various health care matters.

Chase Hattaway, Esq., has been elected partner at the Orlando office of Rumberger, Kirk & Caldwell, P.A. He practices in the areas of employment, casualty litigation, and construction defect litigation.

Morey Raiskin, Esq., has joined Lowndes, Drosdick, Doster, Kantor & Reed, P.A., as of counsel in the firm’s labor and employment law group.

In Memoriam

Janet W. Adams, Esq., Adams Hall Schieffelin & Smith, P.A., passed away at the age of 60 on March 9, 2019, surrounded by family. A native Floridian, she attended West Orange High School and received her undergraduate degree in political science and her law degree, with honors, from the University of Florida Levin College of Law. She was a well-respected and admired attorney with more than 30 years of civil trial experience.

The Honorable Alan R. Schwartz passed away February 22, 2019, at the age of 84. He graduated Harvard College in 1955, magna cum laude, and continued his studies at Harvard Law School, graduating in 1958, cum laude. One of Florida’s first appellate lawyers, he was appointed a circuit judge by Governor Reuben Askew in 1973. After his appointment to the Third District Court of Appeal in 1978, his peers elected him as chief judge, in which capacity he served for 23 years.

He was continuously re-elected until his retirement in 2004, where he went on to serve the state for another 10 years as a senior judge.

The “Hearsay” column is for you! Have you been promoted? Did you join a new firm? Have you been appointed to a community organization or professional board, or been recognized for a significant accomplishment? Do you know of a member who has passed away? You are invited to submit your notice to “Hearsay” columnist Linnea Eberhart, Esq., at leberhart@mtwlegal.com at any time. We look forward to hearing from you!

See you next month, “Hearsay”!

Linnea M. Eberhart, Esq., is an associate attorney with McDonald Toole Wiggins, P.A., practicing in the areas of civil litigation defense, products liability, and premises liability. She has been a member of the OCBA since 2015.

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SideBar

S

pring (and pollen) is in the air, but these April showers brought more than just May flowers.

Here is a look at what our voluntary bar associations have been busy doing this spring.

CFAWL

Alena V. Baker, Esq.

The Central Florida Association for Women Lawyers (“CFAWL”) teamed up with the Orange County Bar Association’s Young Lawyers Section for a free technology CLE on April 3, 2019. Past CFAWL president Barbara Leach, Esq., gave a presentation about using technology for your practice.

CFAWL’s April 5, 2019 luncheon was facilitated by the OCBA’s immediate past president, Liz McCausland, Esq., as well as former U.S. Congressman Ric Keller.

CFGALLA

On February 15, 2019, the Central Florida Gay and Lesbian Law Association (“CFGALLA”) held its first mixer of the year to honor local area judges. In addition, members used this time to recognize HBH Law for its leadership in handling CFGALLA’s pro bono legal clinic at the LGBT+ Center Orlando – The Center – in the aftermath of Hurricane Irma.

FBA

On February 22, 2019, the Federal Bar Association Central Florida Chapter (“FBA”) held its Fourth Friday Lunch & Learn at the federal courthouse to discuss the topic “Social Security Disability Appeals in District Court,” featuring guest speaker Sarah Bohr, Esq. March was a very busy month for the FBA! On March 1, 2019, members turned out in full force to hear the Hon. Mary Scriven, U.S. District judge, speak about the importance of diversity in the judiciary at a luncheon co-hosted by the OCBA and the Paul C. Perkins Bar Association. A scant two weeks later, on March 14, 2019, the FBA attended FAMU’s first-ever Careers in the Law event, where FBA members talked to law students about their careers, gave advice, and discussed the benefits of FBA law student membership.

On March 22, 2019, the association had an amazing discussion on litigating non-compete cases, featuring guest panelists the Hon. John Antoon, II, U.S. District Court; the Hon. Lisa T. Munyon, Ninth Judicial Circuit; and Mary Ruth Houston, Esq., at its Fourth Friday Lunch & Learn series. March activities came to a close on the 28th, when members held their Spring Fling Happy Hour at Chela Tequila & Tacos.

GOAABA

On March 16, 2019, the Greater Orlando Asian American Bar Association (“GOAABA”) attended the Central Florida Diversity and Inclusion Picnic at Barry Law School, met law students, and shared career advice. A few days later, on March PAGE 26

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19, 2019, GOAABA held its monthly luncheon at Jinya Ramen Bar for more than 20 guests and members. The fun didn’t stop there. On April 18, 2019, GOAABA hosted a paint it yourself pottery event!

HBACF

On March 27, 2019, the Hispanic Bar Association of Central Florida (“HBACF”), hosted its 2019 Path to the Bench luncheon at the Orange County Regional History Center. This event gave local judges a chance to speak about their own personal path to the bench. The panel consisted of the Hon. Alicia Latimore; the Hon. Tina Caraballo; the Hon. Carlos Mendoza; and the Hon. Luis F. Calderon. The Hon. Gisela Laurent moderated.

On April 18, 2019, HBACF hosted a judicial reception at Quantum Leap Winery. The event provided an exceptional networking opportunity for members as they honored the Central Florida judiciary and highlighted the diversity of Central Florida’s legal community and its leaders.

PCPBA

On February 11, 2019, the Paul C. Perkins Bar Association (“PCPBA”) had the pleasure of connecting with a great group of kids at the Orange County Public Schools ACE (Academic Center for Excellence) school – a community partnership school that is supported by several local organizations, institutions, and agencies. The kids were able to have donuts and juice with lawyers and law students as they discussed what it takes to enter the legal field and the importance of education. It was a fulfilling day for all!

On March 6, 2019, PCPBA members enjoyed an exceptional presentation given by Tyrone King, Esq., of King & Markman P.A., where they learned some tips and strategies for taking depositions effectively. On, March 16, the PCPBA attended the Central Florida Diversity and Inclusion Picnic at Barry University School of Law with other voluntary bars. Members had a great time talking about their organization to law students, all while playing some fun card games. PCPBA members wrapped up March on the 29th by volunteering at Senator Randolph Bracy’s Re-entry Job and Resource Outreach Fair, which included a sealing and expungement clinic.

Remember, “SideBar” is for you! We want to hear what’s going on, so please send information about upcoming events, as well as past events, along with photos and IDs, to my attention at alena@bakercriminaldefense.com.

Alena V. Baker, Esq., of Alena Baker Criminal Defense, P.A., is a solo practitioner who practices primarily in the area of criminal law throughout Central Florida. She is a member of the OCBA Criminal Law Committee board and has been a member of the OCBA since 2011.

theBriefs May 2019 Vol. 87 No. 4

PCPBA

General Body Meeting with A. Wellington Barlow Benjamin Garcia, Brandon Sapp, A. Wellington Barlow, Orlando Sheppard, Ashley Dunbar, Roger Johnson, Courtney Richardson Jones, Jared Brooks

CFAWL February Luncheon Brandon Sapp, Alexis Carter

GOAABA at Jinya Ramen Bar

Jamie Billotte Moses, Celeste Thacker, CJ Bosco, Hon. Bob LeBlanc, Heather Meglino, Arti Hirani, Hon. Frederick Lauten

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PAGE 27

Evening with the Judiciary

Event Chairs: Lauren Millcarek Charity Tonelli Jennifer Morando

Hon. John Jordan, Charity Tonelli, Lauren Millcarek Arti Hirani, CJ Bosco, Jill Davis

Hon. John Jordan Jill Davis Eric Reed

Washington Shores Elementary School Book Fair Happy Hour

Michael Barber, Kimmie Martin, Amber Williams, Brittany Melendez

Hallie Fisher, Jonathan Pickett, Kristina Paulter, Charity Tonelli, Alex Desrosiers, Richard Dellinger, Andrew Kelly Allison Bekavac, Jimmy Singh

PAGE 28

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theBriefs May 2019 Vol. 87 No. 4

YLS on the move

O

Heather M. Meglino, Esq.

theBriefs May 2019 Vol. 87 No. 4

n February 21, 2019, we held our ever-popular Evening with the Judiciary at our ever-favorite location – the Orlando Museum of Art. More than 300 young and not-so-young-anymore lawyers, members of the judiciary, and guests enjoyed an evening of conversation, appetizers, and a hosted bar. In addition, some of us wandered off to take a quick look at several galleries! Thanks to event chairs Charity Tonelli, Esq., Jennifer Morando, Esq., and Lauren Millcarek, Esq., everyone had a fabulous time!

On March 21, 2019, we had our Washington Shores Elementary School Book Fair Happy Hour at Chela Tequila & Tacos. Young lawyers raised money to purchase children’s books for the second annual Washington Shores Elementary School Book Fair. Without YLS funds, the school would otherwise be unable to host a book fair because, as a Title I school, many of the children cannot afford to purchase books. Thank you to chair Brian Lawrence, Esq., and everyone who donated to this amazing cause.

On April 3, 2019, YLS and CFAWL got together to offer a great technology CLE with speaker Barbara Leach, Esq., a legal technology specialist and co-chair of the OCBA Technology Committee. Barbara presented a CLE seminar on how to use technology in your practice.

On April 5, 2019, YLS enjoyed an afternoon with the zoo at the Winter Park Day Nursery. The Central Florida Zoo brought animals to the school and lead a Florida-themed discussion for about 65 children ranging in age from infants to five years old. The children were also provided goodie bags and school supplies. In typical YLS fashion, the young lawyers enjoyed a happy hour at Fiddler’s Green to celebrate their hard work. Thank you to John Hunt, Esq., and the YLS Community Service Committee for putting on such great community events this year!

On April 12, 2019, we held our monthly luncheon at the Citrus Club with guest speaker Ryan Williams, Esq., recipient of the 2019 Lawrence G. Mathews, Jr. Young Lawyer Professionalism Award. Ryan’s presentation on professionalism

was inspiring and a good reminder of the qualities we all seek to put into practice every day. Thank you, Ryan, and thank you to our luncheon sponsors, Keiron Partners and CenterState Bank.

On April 27, 2019, we held our annual trip to Great Oaks Village, where we had an awesome field day and cookout. Great Oaks Village is a residential foster group home for children and young adults. Our young lawyer volunteers enjoyed some friendly competition with the youth there. Thank you to chairs Eric LaRue, Esq., and Ahmad El-Gendi, Esq., for putting together an awesome day! #wedomore Special congratulations to Brandon Sapp, Esq., who was elected by the board as the YLS 20192020 president-elect.

Stay tuned for these upcoming YLS events: May 5 – YLS Blankets & BINGO. Gardens at DePugh Nursing Center in Winter Park. Details to come.

May 11 – Wills for Heroes. 10:00 a.m.-4:00 p.m. Orange Legal, 633 E. Colonial Dr. Contact: OCBAwillsforheroes@gmail.com May 16 – YLS Washington Shores Elementary School Book Fair. Details to come.

May 17 – YLS Luncheon. 12:00 p.m.-1:00 p.m. (check-in: 11:30 a.m.-11:55 a.m.). Citrus Club. Speaker & Topic: Pass the Gavel Luncheon.

YLS president Jill Davis, Esq., will pass the gavel to YLS incoming president Andrew Roy, Esq. May 23 – YLS Annual Dodgeball Tournament. Details to come.

June 10 – Brown Bag Luncheon with Tanya & the Bobs. Courts Technology. 12:00 p.m.-1:00 p.m. Orange County Courthouse, 23rd Floor Conference Room. RSVP to Cindy Brown at ctjacb1@ocnjcc.org.

And don’t forget to find us on Facebook, Twitter, and Instagram: @ocbayls #ocbayls #wedomore Heather M. Meglino, Esq., is the owner of Meglino Law, LLC and has been a member of the OCBA since 2011.

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PAGE 29

Workers' CompensationCommittee continued from page 13

The Court’s ruling in DeLisle differs significantly from most constitutional determinations. While the Court found §90.702 “unconstitutional,” DeLisle could be read as holding simply that the Court was not bound by the legislature’s decision to adopt Daubert. The ruling could also be limited as an “as applied” holding, applying only to Article V cases. “Where this Court promulgates rules . . . and a statute provides a contrary practice or procedure, the statute is unconstitutional to the extent of the conflict.”18 If either is true, the opinion does not apply to the OJCC. So how do we resolve this apparent conflict between DeLisle and In re Workers’ Comp.? If the Court in DeLisle wanted to limit its holding to Article V cases, presumably it would have said so. On the other hand, a broad reading of DeLisle arguably creates a constitutional crisis, albeit one that did not bother the legislature for nearly twenty years.

A secondary question also remains: if DeLisle prohibits JCCs from applying Daubert, what is the applicable standard for admission of expert testimony in workers’ compensation cases? DeLisle reaffirmed that Frye is “the appropriate test in Florida courts.”19 However, the Evidence Code never included the Frye test,20 and Henson cited no authority to impose the Frye standard on the OJCC.21 The OJCC’s own rules do not expressly include any test regarding admissibility of expert opinions.22 The JCC’s ultimate ruling in Johnson warrants discussion. At issue in that case was a claim for a variation of an otherwise well-established treatment protocol. The employer/carrier objected to expert testimony in support of the use of a variant procedure. After holding that Daubert was inapplicable, the JCC considered both the Frye and Daubert standards in determining the weight to give the expert’s opinion. Ultimately, the JCC found that the variant procedure was not “generally accepted in the scientific community,” and rejected the expert opinion on its merits.23 This perhaps drives home a point noted by the JCC in Johnson and others: that a gatekeeper is arguably not needed in a bench trial. The purpose of standards such as Daubert is to ensure that only reliable scientific evidence is admitted to avoid confusing the factfinder. However, when the judge is both gatekeeper and factfinder, what purpose is served by the exclusion of evidence?24 A judge who might exclude testimony from an expert who relied on unreliable science would presumably also reject the evidence on its merits in the judge’s fact-finding role. This is particularly true in the OJCC context, as JCCs are specialists who frequently consider medical opinions.25 On the other hand, judges are required to exclude evidence for many reasons, even when serving as factfinder, and our bench trial system requires judges to consider only admissible evidence regardless of what other evidence they have reviewed in determining the evidence’s admissibility.

A firm answer on whether DeLisle extends to the OJCC is left for the Court to decide. In the interim, the JCC’s decision in Johnson makes it clear that litigants have effective remedies beyond seeking to exclude unfavorable evidence based on Daubert.

Neil A. Ambekar, Esq., is a partner at Cole, Scott & Kissane’s Orlando office. He concentrates his practice on representation of employer/carriers in workers’ compensation claims. He served on the Workers’ Compensation Rules Advisory Committee of The Florida Bar from 2015-2018 and is the co-chair of the OCBA Workers’ Compensation Committee. He has been a member of the OCBA since 2014.

1

Id. at 1014. At issue in Frye was expert testimony regarding the systolic blood

pressure deception test, “a crude precursor to the polygraph machine.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 585 (1993) (discussing the Frye decision). The court in Frye ultimately excluded the test results.

2 See, e.g., Stokes v. State, 548 So.2d 188, 195 (Fla. 1989).

3 Daubert, 509 U.S. at 587.

4 Fed. R. Evid. 702.

5 In re Amendments to the Fla. Evidence Code, 53 So.3d 1019, 1020 (Fla. 2011).

6 E.g., In re Amendments to the Fla. Evidence Code, 210 So.3d 1231 (Fla. 2017) (hereinafter “In re Evidence Code”).

7 Section 90.702, Florida Statutes, provides: “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case.”

8 In re Evidence Code, 210 So.3d at 1239.

9 DeLisle v. Crane Co., 258 So.3d 1219 (Fla. 2018). The underlying case was a suit involving mesothelioma resulting from asbestos exposure. The trial court found the Plaintiff’s evidence admissible under Daubert. The Fourth District held that some of the evidence should have been excluded, and remanded for a new trial.

Id. at 1222.

10 Id. at 1230.

11 Id. at 1229.

12 See U.S. Sugar Corp. v. Henson, 823 So.2d 104, 107 (Fla. 2002). Somewhat ironically, the question in Henson was whether the Frye standard applied in workers’ compensation cases (it did). Id. at 110.

13 See Final Compensation Order, Johnson v. Krehling Indus./Travelers Ins., Case No. 15-023199 (Fla. O.J.C.C. Nov. 16, 2018). The author’s partner and colleague Leticia Coleman, Esq., represented the Employer/Carrier in Johnson.

14 Id. at 8-9 (stating “It makes little sense to this JCC that the court that mandates the use of the Florida Evidence Code in proceedings before a JCC would require the application of the Daubert/section 90.702 standard notwithstanding that the court has found section 90.702 unconstitutional.”).

15 Id. at 476 (“Then, in 1993, a separate section of the Florida Statutes governing workers’ compensation was modified to grant rulemaking authority to the Office of Judges of Compensation Claims (OJCC)”). In 2002, the legislature transferred the OJCC’s rulemaking authority to DOAH, its parent agency. See id. at 476-77.

16 In re Amendments to the Fla. Rules of Workers’ Comp. Proc., 891 So.2d 474, 475 (Fla. 2004) (hereinafter “In re Workers’ Comp”).

17 See Baricko v. Barnett Transp., Inc., 220 So.3d 1219, 1220 (Fla. 1st DCA 2017) (Wetherell, J., concurring).

18 Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So.2d 730, 732 (Fla. 1991).

19 DeLisle, 258 So.3d at 1229.

20 The predecessor version of §90.702 tracked the pre-Daubert version of Federal Rule 702. “If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.” This meant that the court’s gatekeeping function was largely limited to determining if a witness qualified as an expert.

21 See generally 823 So.2d at 106-07. By the time Henson was decided, the legislature had already divested the Court of its rulemaking authority in workers’ compensation cases.

22 See Rules of Procedure for Workers’ Compensation Adjudications, Ch. 60Q, Fla. Admin. Code.

23 Johnson, Case No. 15-023199 at 9.

24 Federal authorities have generally recognized that Daubert is less relevant in bench trials, but have held that Daubert is “less essential” in such cases, not unnecessary. E.g., Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000).

25 “Daubert in Florida workers’ compensation allows a judge to hear expert testimony and conclusions in order to determine if the same judge should later listen to those expert conclusions. In a non-jury setting, Daubert makes little if any sense as the judge is the “gatekeeper” for the judge.” Langham, David, Daubert better Explained, Workers’ Compensation Adjudication (May 29, 2016), http:// flojcc.blogspot.com/2016/05/daubert-better-explained.html. Judge David Langham is the Deputy Chief Judge of the OJCC.

PAGE 30 www.orangecountybar.org

theBriefs May 2019 Vol. 87 No. 4

Did you know that when you PASS a case to the Lawyer Referral Service, you not only support OCBA services, but you also help keep membership dues low?

So please keep passing those cases and support the OCBA!

Keep the LRIS number in your playbook:

407-422-4537

Last year proceeds from the Lawyer Referral Program covered the production of six issues of The Briefs.

The OCBA LRIS is the only Florida Bar Approved Lawyer Referral & Information Service in Central Florida. theBriefs May 2019 Vol. 87 No. 4

www.orangecountybar.org

PAGE 31

New M e mbe rs Attorneys Chasity N. AGUILAR Reed Sebastian ARROYO Kurt A. BECKER Sha-Kiah M. BRYAN Jason D. BYRD Joseph Kendall BYRD Barbara M. CALDWELL Ryan A. FLETCHER Steven HERMOSA Kathleen Mary HUGO Randy E. LAMBERT Jennifer N. LEON Rebecca S. LEWIS

Jared Anthony MANGUM Kevin T. McGAVOCK Christopher L. MELENDEZ Brandy M. MYERS April REMBIS Katherine Rodriguez RIVERA Marc SCHECHTER Michelle STILE Claire E. SUNDSTROM Stephanie TORRES Daveta L. WILLIAMS Nicholas B. WRIGHT

Associate Linda E. COCO

Affiliates Abigail Frances Lynn CRISPI Tina M. FARRINGTON Latonya HARRELL Deborah JESSE Montine LONG Marianne RUARK

Law Students Aicha Kyria C. AIME- MARCELIN Holly L. BROOKS

Natasa GHICA Benjamin Barton HAMILTON Madison HOWELLER Alexa Breanna MAJDALAWI Paiton Renee MIZELLE Latisha RUSSELL Joseph SPANO Sierra D. STEELE Michael STEFFANUS

Paralegal Students Rosana E. DONADIO Vanessa RIVERA Donna E. ZIMMERMAN

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.

20 or More Members

Dean, Ringers, Morgan & Lawton, P.A. Rumberger, Kirk & Caldwell P.A. Shutts & Bowen, LLP Wicker, Smith, O’Hara, et al.

Winderweedle, Haines, et al.

10-19 Members

Colling Gilbert Wright & Carter, LLC Fisher Rushmer Legal Aid Society of the Orange County Bar Association, Inc. Marshall, Dennehey, Warner, Coleman & Goggin McDonald Toole Wiggins, P.A.

2-9 Members Allen, Norton & Blue, P.A. Anderson & Ferrin, Attorneys at Law, P.A. Artemis Family Law Group, PLLC Arwani Law Firm Aust Law Firm Banker Lopez Gassler P.A. Barrister Law Firm, P.A. Barry Miller Law Carr Law Firm, P.A. Compass Law Cullen & Hemphill, P.A. DeCiccio & Johnson Dellecker Wilson King McKenna Ruffier & Sos, LLP Divine & Estes, P.A. Fassett, Anthony & Taylor, P.A.

O’Mara Law Group Ringer Henry Buckley & Seacord, P.A. Roman V. Hammes, P.L. Sasser & Weber, P.A. Sawyer & Sawyer, P.A. Schwam-Wilcox & Associates SeifertMiller, LLC Shannin Law Firm, P.A. Small Business Counsel Southern Trial Counsel Sperling Ducker, P.L.C. Stovash, Case & Tingley Tangel-Rodriguez & Associates The Aikin Family Law Group The Arnold Law Group The Brennan Law Firm The Elder Law Center of Kirson & Fuller The Fighter Law Firm, P.A. The Law Office of Michael L. Dear, PLLC The Llabona Law Group The Skambis Law Firm Warner & Warner, P.L. West Family Law Group Wieland, Hilado & DeLattre, P.A. Wilson McCoy, P.A. Wooten Kimbrough, P.A. Yergey & Yergey, P.A.

Gans Law, P.A. Gasdick Stanton Early, P.A. Giles & Robinson, P.A. GoodBlatt – Leo Green Family Law, P.A. Hale, Hale & Jacobson, P.A. Harris Harris Bauerle Ziegler Lopez Hilyard, Bogan & Palmer, P.A. Hornsby Law Infocus Family Law Firm, P.L. Jill S. Schwartz & Associates, P.A. Keating & Schlitt, P.A. King, Blackwell, Zehnder & Wermuth, P.A. Korshak & Associates, P.A. Kosto & Rotella, P.A. Law Offices of Brent C. Miller, P.A. Law Office of Catherine E. Davey, P.A. Law Offices of Horwitz & Citro, P.A. Lewis & Crichton Marcus & Myers, P.A. McMichen, Cinami & Demps PLLC McMillen Law Firm, P.A. McShane & McShane Law Firm, P.A. Meenakshi A. Hirani, P.A. Men’s Divorce Law Firm Morgan, White-Davis & Martinez, P.A. Murphy & Berglund, PLLC Murrah Doyle & Wigle, P.A. N. Diane Holmes, P.A.

PAGE 32 www.orangecountybar.org

theBriefs May 2019 Vol. 87 No. 4

Events May 1 – Member Perks. 8:00 a.m.-9:30 a.m. OCBA Center. Speaker: Hon. Faye Allen. Register by Apr. 29 through the OCBA Store.

June 12 – Member Perks. 8:00 a.m.9:30 a.m. OCBA Center. Speaker: TBD. Register by June 10 through the OCBA Store.

June 20 – The Honorable Chief Judge Frederick J. Lauten Retirement Celebration. 4:00 p.m. Dr. Phillips Center for the Performing Arts. 445 S. Magnolia Ave., Orlando, FL 32801.

Seminars May 1 – Business Law Committee. The Five W’s of Bankruptcy. 12:00 p.m.-1:00 p.m. OCBA Center. CLE: 1.0 general. Free (OCBA members); $15 (nonmembers).

Speakers: R. Scott Shuker, Esq.; Mariane L. Dorris, Esq. Sponsored by Latham, Shuker, Eden & Beaudine, LLP; Aurora InfoTech. Register by Apr. 29 through the OCBA Store.

May 2 – Professionalism Committee.

Attorneys’ Fees. 12:00 p.m.-1:00 p.m. Orange County Courthouse, 23rd Floor Conf. Room. CLE: 1.0 (pending). Free (OCBA members); $15 (nonmembers).

Lunch is provided. Speakers: Hon. Donald A. Myers, Jr.; Hon. Kevin B. Weiss.

Sponsored by CenterState Bank. Register by Apr. 30 through the OCBA Store.

May 3 – Criminal Law Committee.

Variables: Methods to Get the Best Disposition. 9:30 a.m.-5:00 p.m. OCBA Center.

CLE: 7.0 general, including 1.0 ethics (pending). $40 (OCBA members); $25 (gov’t/students); $50 (nonmembers).

Speakers: Hon. Marc Lubet; Hon. Leticia Marques; Hon. Dan Traver; Shahzad Ahmed, Esq.; Dr. Jeffrey Danziger; Thomas Feiter, Esq.; Natalia Gove, Esq.; Sabrina Jadunandan, Esq.; Sean Méndez-Catlin, Esq.; Scott Northridge, Esq.; Francisco “Frank” Symphorien-Saavedra, Esq.; Ryan Williams, Esq. Sponsored

by Total Health Guidance. Register by May 1 through the OCBA Store May 7 – LAS Lunchtime Training.

Simple Wills and Special Considerations When Working with LGBTQ+ Clients.

12:00 p.m.-1:30 p.m. Marks Street Senior

Recreation Complex, 99 E. Marks St., Orlando, FL 32803. CLE: pending. Speaker: Jamos Mobley, Esq. Contact: Marilyn Carbo at mcarbo@legalaidocba.org.

May 9 – Immigration Law Committee.

Removal Defense: Finding Your Happy Place and Happy Hour. Details to come.

May 10 – Labor & Employment Committee. Details to come. Sponsored by Cyber Centaurs.

May 13 – Brown Bag Luncheon with Tanya & the Bobs. Paternity & Child Support Current Issues. 12:00 p.m.-1:00 p.m.

Orange County Courthouse, 23rd Floor Conf. Room. CLE: 1.0 (pending). Speakers: Hon. Alice Blackwell; Hon. Heather Higbee. Seating is limited. RSVPs are requested. Contact: Cindy Brown at ctjacb1@ocnjcc.org.

May 13 – Estate, Guardianship & Trust Committee. New VA Rules and Regulations. 12:00 p.m.-1:00 p.m. OCBA Center.

CLE: 1.0 general (approved). Free (OCBA members); $15 (nonmembers). Speaker: Randy C. Bryan, Esq. Sponsored by K. Mitchell Team. Register by May 10 through the OCBA Store.

May 16 – Professionalism Committee & Legal Marketing Association. Facing the Challenges: Women in the Law. 12:00 p.m.-1:00 p.m. OCBA Center. CLE: 1.0 (pending). Free (OCBA members); $15 (nonmembers). Speakers: Jennifer Dixon, Esq.; Sarah Pape, Esq.; Deborah Mitchell, Esq.; Kelly Garcia, Esq. Sponsored by the Legal Marketing Association; Cherry Blow Dry Bar. Register by May 14 through the OCBA Store.

May 17 – Family Law Committee.

Something Old, Something New, Something Borrowed, Something Blue, and a Silver Sixpence in Her Shoe. 8:00 a.m.1:00 p.m. OCBA Center. CLE: 6.0 general (pending). $40 (OCBA members); $25 (gov’t/students); $50 (nonmembers).

Speakers: Hon. Heather Pinder Rodriguez; Hon. Tanya Davis Wilson; Hon. Donald A. Myers. Jr.; General Magistrate Lisa Bedwell; Kashmira Bhavsar, Esq. Sponsored by Total Health Guidance; Family Law Software; K. Mitchell Team.

Register by May 15 through the OCBA Store.

May 21 – LAS Lunchtime Training.

Adoption IS Possible in Dependency.

12:00 p.m.-1:30 p.m. Marks Street Senior Recreation Complex, 99 E. Marks St., Orlando, FL 32803. CLE: pending. Speaker: Daniela De Assis, GAL Case Coordinator.

Contact: Marilyn Carbo at mcarbo@legalaidocba.org.

June 10 – Brown Bag Luncheon with Tanya & the Bobs. Courts Technology.

12:00 p.m.-1:00 p.m. Orange County Courthouse, 23rd Floor Conf. Room. CLE: 1.0 technology. Speaker: Hon. Lisa Munyon. Seating is limited. RSVPs are requested. Contact: Cindy Brown at ctjacb1@ocnjcc.org.

June 11 – LAS Lunchtime Training.

Debt Collection & Garnishments. 12:00 p.m.-1:30 p.m. Marks Street Senior Recreation Complex, 99 E. Marks St., Orlando, FL 32803. CLE: pending. Speakers: Jamos Mobley, Esq.; N. James Turner, Esq. Contact: Marilyn Carbo at mcarbo@ legalaidocba.org.

June 10 – Estate, Guardianship & Trust Committee. Details to come.

Sponsored by K. Mitchell Team.

June 13 – Alternative Dispute Resolution Committee. Details to come.

June 14 – Labor & Employment Committee. Details to come.

June 20 – Intellectual Property Committee. Details to come.

June 21 – Family Law Committee. Details to come. Sponsored by K. Mitchell Team.

June 25 – LAS Lunchtime Training.

Dependency Cases Really Do End: Finding Permanency. 12:00 p.m.-1:30 p.m. Marks Street Senior Recreation Complex, 99 E. Marks St., Orlando, FL 32803. CLE: pending. Speaker: Katie Pareja, Esq. Contact: Marilyn Carbo at mcarbo@legalaidocba.org.

An n o unce ments

theBriefs May 2019 Vol. 87 No. 4

www.orangecountybar.org

PAGE 33

CLASSIFIED ADS EMPLOYMENT KILLGORE, PEARLMAN, SEMANIE, DENIUS & SQUIRES, P.A. AV rated Orlando law firm seeks an associate attorney with 5 years minimum commercial litigation. The ideal candidate will have strong communication, research and writing skills, be detailoriented, self-motivated and work independently with moderate supervision.

Salary commensurate with experience. Excellent benefits available. Submit resume and cover letter to Jane Corser, jcorser@kpsds. com.

ASSOCIATE ATTORNEY 1-5 years exp. Full or Part-time.

Insurance/Product Liability.

Reply to Hiring Partner: P.O. Box 1150, Winter Park, FL 32790.

DOWNTOWN ORLANDO LITIGATION FIRM seeking attorney with 5 years’ experience. Insurance defense experience preferred. Benefits and salary are based on experience. E-mail your resume to Dianna@vasko. net.

DSK LAW (DE BEAUBIEN, SIMMONS, KNIGHT, MANTZARIS & NEAL, LLP) established in 1976 with four

offices in Florida is searching for a Florida licensed attorney with 1-6 years of civil litigation experience for its Orlando office. The attorney will primarily focus on insurance defense and commercial litigation. A successful candidate should be able to handle multiple cases, communicate well with the firm’s clients, write effectively and be engaged in trial work. We are seeking motivated individuals who are looking to grow with the Firm. We offer a comprehensive compensation package, which includes a salary commensurate with your experience and accomplishments. Please send your resume today to jellis@dsklawgroup.com.

LEGAL ASSISTANT/ ASSISTANT Full or Parttime. Prior litigation experience preferred. Reply to Hiring Partner: P.O. Box 1150, Winter Park, FL 32790.

JAMES COLEMAN, P.A., DOWNTOWN INSURANCE DEFENSE LAW FIRM, seeking experienced litigation attorney and litigation paralegal. Candidates should have minimum of 5 years’ personal injury litigation experience.

To reply to BRIEFS box number, address as follows: Briefs Reply Box # _____ c/o Orange County Bar Association Orlando, FL 32801

Positions offer competitive salary and benefits commensurate with experience. Please submit resumes to jcoleman@ rclawpa.com.

THE ORANGE COUNTY CLERK’S SELF HELP CENTER is in need of attorneys who speak Spanish, Creole or are ASL certified. The Self Help Center attorneys provide consultations to clients who need information regarding family law, evictions, and small claims. Self Help Center Attorneys can sign up to work for one or more days per month. For more information, please contact Candice Maull at candiced@ ocbanet.org.

SPECIALTY DEFENSE FIRM handling first party property/liability coverage issues and complex contractual/tort litigation seeks attorneys 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 BI ATTORNEY NEEDED: Established insurance defense law firm seeks trial attorney with

MAY 13: Paternity & Child Support Current Issues JUNE 10: Courts Technology

7+ years of trial practice experience. The candidate must have significant first chair experience at trial and should anticipate immediately preparing for and attending trial. A very lucrative compensation package is available for the right person. Send resumes to mheaberlin@gobelflakes. com.

OFFICE SPACE/SALE/ RENT/LEASE/SHARE SELL YOUR FIRM and retire with a bonus.

You’ve diligently built your firm, now cash in on that investment! Get a free copy of The Guide to Selling Your Florida Law Practice and develop a plan for the profitable and successful sale of your most valuable asset. Call (407) 917-9594 or visit www.

ExitMyLawPractice.com!

TWO FURNISHED ATTORNEY OFFICES – Downtown Orlando, one block from courthouse, post office and restaurants.

Parking, conference rooms and kitchen use included.

Call Kacy (407) 259-2426.

Bring your lunch and pick up great practice pointers!

Seating is limited. RSVPs are requested. See Announcements on page 33 for speakers.

12:00 p.m.-1:00 p.m. • Orange County Courthouse, 23rd Floor • RSVP to: Cindy Brown at ctjacb1@ocnjcc.org PAGE 34

www.orangecountybar.org

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PAGE 35

O C B A MAYC -aJUNEl e n d a r MAY

1

Member Perks 8:00 a.m. • OCBA Center Business Law Committee Seminar The Five W’s of Bankruptcy 12:00 p.m. • OCBA Center

2

Professionalism Committee Seminar Attorneys’ Fees 12:00 p.m. • OCBA Center

3

Criminal Law Committee Seminar Variables: Methods to Get the Best Disposition 9:30 a.m. • OCBA Center

7

Real Property Committee Meeting 12:00 p.m. • OCBA Center Professionalism Committee Meeting 12:00 p.m. • OCBA Center LAS Lunchtime Training Simple Wills and Special Considerations When Working with LGBTQ+ Clients 12:00 p.m. • Marks St. Senior Rec. Complex

8

Lawyers Literary Society Meeting 12:00 p.m. • OCBA Center Judicial Relations Committee Meeting 12:15 p.m. • Orange County Courthouse, 23rd Floor Conf. Room OCBA Executive Council Meeting 4:30 p.m. • OCBA Center Construction Law Committee Meeting 5:30 p.m. • OCBA Center

PAGE 36

9

Immigration Law Committee Seminar

Removal Defense: FindingYour Happy Place and Happy Hour TBD Social Security Committee Meeting 12:00 p.m. • OCBA Center Civil Rights Law Committee Meeting 5:30 p.m. • OCBA Center YLS Board Meeting 5:30 p.m. • OCBA Center Labor & Employment Committee Seminar TBD Brown Bag Luncheon with Tanya & the Bobs Paternity & Child Support Current Issues 12:00 p.m. • Orange County Courthouse, 23rd Floor Conf. Room Estate, Guardianship & Trust Committee Seminar New VA Rules and Regulations 12:00 p.m. • OCBA Center Appellate Practice Committee Meeting 12:00 p.m. • Lowndes Law Professionalism Committee Seminar Facing the Challenges: Women in the Law 12:00 p.m. • OCBA Center YLS Luncheon 11:30 a.m. • Citrus Club Family Law Committee Seminar Something Old, Something New, Something Borrowed, Something Blue, and a Silver Sixpence in Her Shoe 8:00 a.m. • OCBA Center Solo & Small Firm Committee Meeting 12:00 p.m. • OCBA Center

10

13

15 16 1 7

21

OCBA Installation Luncheon May 23, 2019

Embassy Suites by Hilton Downtown Orlando 11:30 a.m.-1:00 p.m.

191 E. Pine St., Orlando, FL 32801 RSVP by May 20 // orangecountybar.org/store

LAS Lunchtime Training Adoption IS Possible in Dependency 12:00 p.m. • Marks St. Senior Rec. Complex

22

Health & Wellness Committee Meeting 12:00 p.m. • OCBA Center

23

Installation of Officers Luncheon 11:30 a.m. • Embassy Suites by Hilton Downtown Orlando

27 28 Social Committee Meeting Memorial Day

Office Closed

12:00 p.m. • OCBA Center

JUNE

4

Lawyers Literary Society 12:00 p.m. • OCBA Center

Alternative Dispute 1 3Resolution Committee Seminar

TBD Social Security Committee Meeting 12:00 p.m. • OCBA Center Civil Rights Law Committee Meeting 5:30 p.m. • OCBA Center YLS Board Meeting 5:30 p.m. • OCBA Center

14

Labor & Employment Committee Seminar

TBD

18

Professionalism Committee Meeting 12:00 p.m. • OCBA Center

Solo & Small Firm Committee Meeting 12:00 p.m. • OCBA Center

Elder Law Committee Meeting 12:00 p.m. • OCBA Center

Appellate Practice Committee Meeting

12:00 p.m. • Lowndes Law Intellectual Property Committee Seminar

TBD Hon. Chief Judge Frederick J. Lauten Retirement Celebration Dr. Phillips Center for the Performing Arts • 4:00 p.m.

5

19

20 Bag Luncheon

10 Brown with Tanya & the Bobs Courts Technology 12:00 p.m. • Orange County Courthouse, 23rd Floor Conf. Room Estate, Guardianship & Trust Committee Seminar TBD Technology Committee Meeting 12:00 p.m. • OCBA Center LAS Lunchtime Training

Debt Collection & Garnishments 12:00 p.m. • Marks St. Senior Rec. Complex

11

12

Member Perks 8:00 a.m. • OCBA Center

www.orangecountybar.org

21

Family Law Committee Seminar TBD YLS Luncheon 11:30 a.m. • Citrus Club

25

LAS Lunchtime Training

Dependency Cases Really Do End: Finding Permanency 12:00 p.m. • Marks St. Senior Rec. Complex

26

Health & Wellness Committee Meeting 12:00 p.m. • OCBA Center theBriefs May 2019 Vol. 87 No. 4

880 North Orange Avenue Orlando, Florida 32801

PRSRT STD U.S. POSTAGE PAID MID-FL FL PERMIT NO. 581