South Florida Legal Guide Midyear 2012

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Greenberg Traurig is a service mark and trade name of Greenberg Traurig, LLP and Greenberg Traurig, P.A. ©2012 Greenberg Traurig, LLP. Attorneys at Law. All rights reserved. Contact: Cesar L. Alvarez in Miami at 305.579.0500. *Operates as Greenberg Traurig Maher LLP. +Operates as Greenberg Traurig, S.C. ^Operates as a branch of Greenberg Traurig, P.A., Florida, USA. °These numbers are subject to fluctuation. 13240




26 10


5 Law Guest Opinion

38 2012 Legislative Session

6 Publisher’s Note

40 The Pain of Pill Mills

7 CPA Guest Opinion

42 Why Lawyers and Accountants Get Sued

8 Editor’s Note

44 Defending Florida’s Insurance Code from

10 International Arbitration 13 Personal Injury Attorneys




Industry Attacks

46 If Getting Married Were Just About Love, Would it be Easy?

26 Real Estate

48 Top Lawyers: Class of 2012

30 E-Discovery

54 12th Anniversary Celebration

34 DREAM Act

56 Professional Forum

36 Affordable Care Act

61 Professional Profiles



FLORIDA BAR WANTS VOTERS to Understand Historic Challenge to Judicial Merit Retention This November

, Floridians will have an opportunity to vote on whether to retain — on the basis of judicial merit — three sitting Supreme Court justices and 15 state court appellate judges. Given national scrutiny and the number of judges at issue, this vote will be of historic import. Significant funds are likely to be invested by different interest groups opposing various judges and justices. In part, opposition has been galvanized by the defeat of three sitting justices in Iowa in 2010 and the sense that Florida’s judicial merit system is vulnerable to political attack. That is unfortunate, but it does present an opportunity to educate the public about Florida’s judiciary. The Florida Bar hopes that with information about judicial merit retention, Floridians will go to the polls on Election Day with a better understanding of the process and the essential role judges fulfill in our democracy.

that would protect judges from the very politics that influence the other two branches of government – the legislative and executive. As a result of the 1976 vote, appellate judges were taken out of elective politics in favor of a system in which judicial applicants are nominated to and then selected by the governor after being screened by nonpartisan Judicial Nominating Commissions. Importantly, voters did not relinquish their right to assess the performance of judges. The new merit system preserved for voters the opportunity to examine judges on the basis of merit through non-partisan judicial merit retention votes. Judicial retention elections often receive minimal coverage given the stability of the judiciary. But occasionally, groups that are organized around single issues target specific justices and judges. Such is the situation now.

Confidence in the Courts and The Florida Bar

Why Judicial Elections Are Different

A core mission of The Florida Bar is promoting the administration of justice. Thus the bar’s recently launched initiative: “The Vote’s in Your Court – Judicial Merit Retention. Know the Facts.” Importantly, in 1976, the year of the U.S. bicentennial, Floridians took a major step to insulate judges from electioneering politics. Floridians voted to amend the state Constitution to implement the current system of selecting appellate judges on the basis of merit and eliminate the previous system of selecting judges on the basis of politics. Against a backdrop of scandal in the Florida Supreme Court (at a time when candidates for the Supreme Court campaigned and raised political contributions), Floridians chose a system

While judges can raise money when they have been targeted, the judicial canons governing their conduct prohibit them from responding to direct attacks. Unlike candidates for representative elective office, judicial candidates cannot share views on policy or indicate how they might rule. Candidates for legislative and executive offices have no such prohibitions. Additionally, judges are not affiliated with political parties. Judges, as neutrals, are to make BY decisions in their courts based SCOTT G. HAWKINS on the facts and case law, not the Florida Bar President politics of the time. Voters are thus Shareholder left to consider judges’ reputations Jones, Foster, Johnston for fairness, preparedness, & Stubbs, P.A. demeanor, ethics, scholarship and integrity. In short, the question

before voters in judicial retention votes is whether judges and justices demonstrate qualities consistent with rendering to all fair and impartial justice. This expectation of fair and impartial justice is central to public confidence in our judiciary. If there were a fear that judges made decisions based on personal bias or factors such as money, politics, vengeance, race and social status, voters would have little confidence in our system of justice and our judges. Fortunately, this is not the case. It is the goal of The Florida Bar’s educational campaign about the judiciary to give voters a better understanding of the important democratic issues at stake. In addition to articles, speeches and educational materials, the program includes a presentation featuring retired U.S. Supreme Court Justice Sandra Day O’Connor at The Florida Bar Convention in Orlando in June. The Florida Bar has also prepared a voters guide that answers frequently asked questions about judicial office and merit retention elections. To request a copy, please email I also invite you to learn more about judicial merit retention through resources available at thevotesinyourcourt. This will be an important year for Florida and its judicial system. The Florida Bar urges voters to learn the facts.









Something Special About South Florida

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the top attorneys, CPAs and ďŹ nancial professionals we have featured over the past several years, it is quite apparent that many of our best people are not native South Floridians. Some have come down here from the other parts of the country or moved north from Latin America. Some professionals come to South Florida for their studies, to marry a spouse with family here, or to handle a particular case. Whatever the reason, South Florida has captivated them. They put down roots and call it home. This is a great gain for all of us in the tri-county region, as we continue to grow and expand our “gene poolâ€? with an impressive number of talented individuals. The diverse talent in our region is evident not only to those of us that have the good fortune of living in South Florida but to the growing number of large U.S. and international law ďŹ rms establishing ofďŹ ces and professional relationships here, and selecting, among other things, our region for their international arbitration matters. Our sophisticated multicultural professional workforce is also appealing to the many international banks that 6


have chosen to establish important footholds here to serve the U.S. market. Reecting on the other articles in this issue, I am excited to see that we can again say the words “real estateâ€? and talk about zoning, construction and new development. Like the rest of the country, our region has gone through a difďŹ cult economic period, and hopefully is now coming out on the other side. With “The Lion Kingâ€? playing in town, I am reminded that this is an example of “The Circle of Lifeâ€? and that new activity is coming back to South Florida. As Matthew Druckman mentions in our e-discovery feature, “Everything is out there someplace.â€? While he obviously is referring to data and information, let us remember that the same thing could be said for opportunity. Regardless of your ďŹ eld of practice, there are opportunities out there now and for years to come. So, let’s work together and build upon our strong foundation as we continue to attract the best talent, the best professionals and the best people.

Jacob Safdeye

Publisher & CEO

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Does the IRS Understand


theft victims: Pay now while we pay later,” was the title of an article that appeared in the May 7, 2012 edition of the South Florida Sun Sentinel. It reported the sad case of a South Florida 76-year-old disabled veteran who was the victim of identity theft and Internal Revenue Service “customer relations”. He timely filed his 2011 tax return reporting an overpayment of tax only to learn an identity thief earlier used his identity to file a return claiming a fraudulent refund. Adding insult to injury, Internal Revenue Service staff informed the victim that the refund would be delayed and the $600 part of his overpayment he wanted applied to his 2012 estimated income taxes would not be applied as requested. Rather, if he did not reach into his pocket to pay the $600 a second time, he would be subjected to penalties and interest for underpaying his 2012 estimated taxes. So, he fearfully paid the $600 a second time. Even the IRS recognizes the inherent unfairness of what the taxpayer was told. The problem for the public is the lack of training received by intake personnel at the IRS. It required a higher level spokesperson at IRS to provide a partial explanation for the Sun Sentinel reporter who wrote the original story. IRS already has a policy of reducing amounts of assessed taxes and removing penalties for “reasonable cause,” economic hardships, fairness and equity. Had the intake staff known this, the victim would not have felt compelled to pay the $600 a second time. So, what is the IRS doing to combat identity theft? As part of a comprehensive identity theft strategy, it has embarked on a national effort focused on preventing,

detecting and resolving identity theft cases refund is issued, as well as expanded efforts as soon as possible. It has stepped up its to place identity theft indicators on taxpayer internal reviews to spot false tax returns accounts to track and manage identity theft before tax refunds are issued as well as incidents. working to help victims of the identity theft This is where it breaks down. IRS refund schemes. Criminal Investigations is very good at its On January 31, 2012, the IRS and the job. Nevertheless, IRS customer relations Justice Department jointly announced the skins its knee in two critical places. First, results of a massive national crackdown IRS is mining data to correlate reported on suspected identity theft perpetrators as identity theft victims and fraudsters. part of a stepped-up effort against refund Regrettably, its computer programming is fraud and identity theft. The nationwide not yet fully equipped to accurately identify effort targeted 105 people in 23 states identity theft returns. Fraudsters know and resulted in 69 criminal complaints that the earlier they file a refund return related to identity theft with 939 criminal with IRS using a stolen identity, the more charges. Furthermore, in the same week, likely they are to be successful. Secondly, IRS conducted compliance visits to money the information about what IRS is doing to service businesses in nine locations across combat identity theft and assist victimized the country helping ensure these checktaxpayers is published in the one place cashing facilities aren’t facilitating refund taxpayers do not visit for information – fraud and identity theft. According to IRS Commissioner Unfortunately, in its rush to provide Doug Schulman, “This unprecedented justice for victims, victim needs are not effort against identity theft sends a being adequately addressed. Simply having strong, unmistakable message to anyone better trained intake staff could have considering participating in a refund fraud prevented this mini-tragedy and the large scheme this tax season. We are aggressively number of others occurring around the pursuing cases across the nation with the country. Justice Department, and people will be going to jail. This is part of a much wider effort underway at the IRS to help protect taxpayers.” On the victim side, the IRS says it is taking additional steps to prevent identity theft and detect refund fraud before BY it occurs. These efforts include STANLEY I. FOODMAN designing new identity theft CEO screening filters that will Foodman CPAs & Advisors improve the IRS’ ability to spot false returns before they are processed and before a SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012



Achieving Results South Florida attorneys

and litigation support professionals are dedicated to achieving results. From the initial filing to the final appeal, every step in a case requires the right blend of information, intelligence and attitude. That’s why our 2012 Midyear Report is focused on helping our professional community provide the highest level of service to their clients. One of our features focuses on the latest developments and emerging trends in e-discovery – a discipline that impacts virtually every type of litigation. In our electronic world, data is everywhere. As a result, legal teams need to know where relevant documents are stored and how to obtain the information they need in a timely and cost-effective manner. South Florida is also a growing center for the arbitration of international commercial disputes. A convenient, neutral venue for resolving “big-ticket” legal matters, Miami will be hosting one of the world’s most prestigious arbitration conference in 2014 – a clear sign of South Florida’s arrival on the world stage. With this issue, we are beginning a planned series of articles on outstanding attorneys in various legal disciplines. To kick off the series, we are featuring six top plaintiff ’s personal injury attorneys – all talented advocates for their clients and outstanding leaders in the courtroom and the community. Our Midyear Report also includes “Top Lawyers: Class of 2012,” an introduction to the “Up and Comers” who will be moving to



our “Top Lawyer” list in our next annual South Florida Legal Guide. To help them along the way, we’ve asked several of our veteran attorneys to provide them with advice on continuing to advance their careers in the future. This issue also features guest columns by several of our Top Lawyers who have graciously volunteered to address timely issues facing our community, such as the challenge to judicial merit retention. As our readers understand, South Florida Legal Guide’s publications serve the legal and business community, rather than a general consumer audience. With our Midyear Report, upcoming Financial Edition and year-end annual edition, we reach a growing professional audience that includes attorneys, accountants, forensic experts, bankers, financial service providers and other professionals. We thank our contributors, advertisers and readers for their support, as we continue to serve the needs of South Florida’s diverse professional community.

Richard Westlund Editor

Hunton & Williams is the legal advisor of choice for industry leaders on six continents. With more than 800 attorneys practicing from 19 offices across the United States, Europe and Asia, we help clients realize new opportunities and solve complex problems with confidence. Our lawyers blend more than a hundred years of experience in virtually every key legal discipline with a broad view of current business realities and a forward-looking perspective on emerging issues. To provide legal and regulatory advice that will carry our clients well into the 21st century, we have opened 11 new offices in key commercial and financial centers over the last 10 years, and have expanded into a wide range of national and international practice areas. We are regularly named by legal and business journals and ratings agencies as among the top law firms for client service. Our practice groups and individual lawyers have been recognized in publications such as Chambers Global, Chambers USA, Chambers UK, Chambers Asia Pacific, Chambers Europe, Chambers Latin America, The Legal 500, Benchmark Litigation, American Lawyer, Corporate Counsel and dozens of other regional and industry-focused print media and online journals.

Miami Office Lawyers Patricia Acosta

Paulo R. Lima

Fernando C. Alonso

Abigail M. Lyle

David E. Bane

Fernando Margarit

Noelle J. Coates

Laurie Uustal Mathews

Terence G. Connor

Camilo A. Mejia

Samuel A. Danon

Gustavo J. Membiela

Barry R. Davidson

Uriel A. Mendieta

John J. Delionado

Grace M. Mora

Jennifer D. Ellis

Larry Muñoz

Carlos A. Garcia

Robert S. Rausch

Jamie Zysk Isani

Rebecca J. Sarinsky

Thomas R. Julin

Marquista A. Shipman

Sarah Klee

Fradyn Suárez

Anna Lazarus

B. Cary Tolley

Corey Lee Juan C. Enjamio, Managing Partner

Hunton & Williams, 1111 Brickell Avenue, Suite 2500, Miami, FL 33131, 305.810.2500 © 2012 Hunton & Williams LLP U Atlanta U Austin U Bangkok U Beijing U Brussels U Charlotte U Dallas U Houston U London U Los Angeles U McLean U Miami U New York Norfolk U Raleigh U Richmond U San Francisco U Tokyo U Washington


SOUTH FLORIDA: A Growing Center for International DISPUTE RESOLUTION B

ack in the mid 1980s, Burton A. Landy was hired by a Nicaraguan company in a dispute about royalty payments to a Japanese company. The contract called for arbitration in Miami under the laws of Florida. “Both sides wanted to arbitrate in a neutral U.S. venue,” said Landy, now a partner with Akerman Senterfitt in Miami. “To my amazement the arbitration worked. Since then, international arbitration in South Florida has grown steadily through the years.” Today, Miami is an up-and-coming center for international arbitration as well as commercial litigation, and the host city for the International Council for Commercial Arbitration (ICCA)’s prestigious biennial congress in 2014. Last May, Landy led a



delegation from the Miami International Arbitration Society (MIAS) to Geneva, where the ICCA selected Miami for its “Olympics” of the international commercial arbitration world. Two years from now, approximately 1,000 lawyers from around the world will come to Miami to hear presentations by prominent international arbitration practitioners and scholars in the field. “This will be the first time the congress has been held in the United States since the 1980s,” says MIAS board member Daniel E. González, a partner at Hogan Lovells, Miami, and co-leader of the firm’s international arbitration practice. “We are already planning the event, which signals worldwide recognition of the growing importance of Miami in the international arbitration arena.”

Manny Garcia-Linares

A Convenient Venue International attorneys see South Florida as a safe and convenient venue for commercial arbitration. “We are seeing a lot of contracts with Latin American parties that have Miami as the venue for arbitration,” says Manny Garcia-Linares, managing shareholder with Richman Greer. “South Florida is perceived as being a safer environment in terms of being a known place where lawyers and arbitrators can resolve a dispute quickly. Most importantly, Latin American executives and attorneys feel at home in Miami.” González notes that South Florida’s position at the crossroads of the Americas has benefited the region as a venue. Other advantages include convenient air service to all business centers in the Caribbean and Latin America, and a wide range of options for meeting rooms and accommodations. Many South Florida attorneys speak Spanish or Portuguese, and interpreters are readily available if needed. In addition, the region’s multilingual professionals, including accountants and engineers, have knowledge and experience in international arbitration. According to MIAS, Miami is also a less expensive location to host international arbitration proceedings compared with traditional arbitration centers such as New York or London.

Burton A. Landy

Like other international attorneys, Landy, González and Garcia-Linares have seen an increase in arbitration cases over the past five years. For instance, Garcia-Linares, who typically arbitrates for private parties, is handling a matter that involves a Chilean company that was importing farm goods into the U.S. “The case had been filed in federal court in New York, and the parties decided to go to arbitration with Miami as the venue”. Landy recently chaired a panel of three arbitrators in a case with parties on three continents: A European company ordered specialized equipment from a U.S. company to be used in a port in South America. The contract called for arbitration under Florida law with Miami as the venue. “The case had nothing directly to do with Florida or Miami,” Landy says, “but it provides a good example of how we are being recognized and accepted as a good place to settle commercial disputes.”

Benefits of Arbitration Today, corporate counsels around the world are familiar with the benefits of arbitration. “When we do presentations, it’s now a discussion about how you do arbitration,” says González. “If you go to litigation, the foreign court may not be to your liking or you could end up with a judgment that has limited enforceability.” In

contrast, countries that are members of one of the international conventions will honor a foreign arbitrator’s award. So even if the counterparty is in China you can enforce the judgment wherever the party has assets. That is a primary appeal of international arbitration in the commercial setting.” Other advantages include a faster resolution of the dispute, because of limited appeal rights. “Generally, the initial phase will take just as long and be as expensive as a court proceeding,” says González. “But the fact that you don’t face the extended appeals and remanding makes for a more efficient resolution.” For example, González handled a matter in Argentina where the aspects that were subject to arbitration were finished ten years ago. On the other hand, the litigation aspects have been “up and down the court system twice and are still going on.” One misconception among some international attorneys is that arbitration will be cheaper than a court proceeding. Noting that some of the costs of a trial are underwritten by taxpayers (such as judges’ salaries and courthouse venues), González says the parties in an arbitration pay all the costs, including the arbitrators, meeting rooms, court reporters and interpreters as well as travel and accommodations. “Another common myth is that if you’ve done trials you can do arbitrations,” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012




González says. “There are many cultural, process and procedural differences between the two. General counsels typically look for practitioners who have training and expertise in this area.” There are also cultural differences among arbitrators, according to González. U.S. arbitrators may allow increased discovery and e-discovery at the early stages of a matter, compared with their European or Latin American counterparts. “The trend, in general, though, has been toward broader discovery than was true in the past,” he adds. For example, one round of document requests and exchanges usually occurs before the memorials (briefs) are filed. There may be multiple rounds of document discovery, as well as depositions in some matters. “These differences are not a matter of right or wrong,” he adds. “There are simply different ways of getting at the evidence and the facts.”


A Long Tradition


South Florida has a long tradition as an alternative dispute resolution (ADR) center for international cases, and Florida was one of the first states to pass an international arbitration act back in 1986. After the Summit of the Americas in 1994, Landy helped establish the International Center for Resolution of Commercial Disputes in Miami, which operated for several years. Four years ago, Landy co-founded the Miami International Arbitration Society, which now has 60 to 70 members and meets every other month. On the legal side, the Florida Legislature revised the international arbitration act in 2010 based on the United Nations Council for International Trade Laws (UNCITRAL) model law on international commercial arbitration. “We borrowed a lot from that model and added some Florida wrinkles,” Landy says. “It is the


For more information:

Daniel González 12


international standard and attorneys from around the world are familiar with its provisions.” The state’s legal framework also permits parties to use their legal counsel of choice to represent them in international arbitration proceedings conducted in Florida, including counsel from a foreign jurisdiction who are not admitted to practice law in Florida. Landy notes that South Florida law schools and their students are showing a greater interest in international arbitration. The University of Miami School of Law, for instance, has an international arbitration program chaired by Jan Paulsson, who is also president of the ICCA. “I’m also seeing increased interest in arbitration from our younger lawyers,” Landy says, citing the success of a recent Miami workshop by Young ICCA, an arm of the worldwide organization. Summing up the region’s growing appeal, Garcia-Linares says, “Miami is not a New York or a London, but we are clearly making a name for ourselves here.


A plaintiff’s personal injury attorney today faces many challenges. It can take months or years to achieve a favorable verdict or equitable settlement for a client. Along the way, the PI attorney needs to become familiar with all the key issues in the medical malpractice, products liability, wrongful death or personal injury case. Here are six proďŹ les of our Top Attorneys who are talented advocates for their clients and outstanding leaders in the courtroom and the community.




Ted Babbitt

appreciates good writing. “To be successful as a trial lawyer, you have to be a good writer,” says the founding partner of Babbitt Johnson Osborne & LeClainche, P.A. in West Palm Beach. “You have to state things concisely in a way that makes sense and be persuasive at the same time. You can have all the oral talent and not be successful if you can’t put the right words down on paper.” Today, Babbitt writes a monthly column on cases for the Palm Beach Bar Association and spends plenty of time at the computer

to Palm Beach Junior College and worked on his English and math skills. Next came the University of Florida, where Babbitt majored in psychology. “My family is filled with teachers, and I had planned to become a guidance counselor,” he says. “But my advisors felt I was too aggressive for that.” By then Babbitt was married and looking at other possibilities for his career. He took the Law School Admissions Test (LSAT) and stayed in Gainesville. “My first professor told us that only one-third of the students would graduate and I didn’t expect to finish,”

other personal injury matters. About five years ago, Babbitt and his partners decided to broaden the six-attorney firm’s PI practice, which had primarily focused on medical malpractice cases. Now, Babbitt’s legal work includes mass torts, other types of PI matters, and commercial contingency cases. “To be a good trial lawyer, you need confidence and the will to win, along with your oral and written skills,” Babbitt says. “You have to be willing to work hard. I’m known for my preparation. When I file a

Theodore (Ted) Babbitt: THE WRITER

preparing arguments on behalf of his clients. He has successfully tackled some of the most challenging personal injury cases in Florida and obtained numerous high profile, multimillion-dollar recoveries for his clients. In 1973, he became the youngest member to be elected to the Inner Circle of Advocates, an invitation-only group of 100 top plaintiffs’ lawyers. He has also been named to the International Academy of Trial Lawyers, and The American College of Trial Lawyers, making him just one of a handful of lawyers who have been named to all three organizations. Babbitt has also written more than 100 articles that have appeared in national and local publications, given lectures for other attorneys, and chaired nearly a dozen professional committees. But it took Babbitt many years to develop the skills that have made him a successful trial lawyer. A native of New York, Babbitt came to Florida in 1955 when he was 13 years old. “I was a terrible student in high school, and took classes like wood shop, metal shop and mechanical drawing,” he recalls. “I was convinced into joining the U.S. Marine Corps. When I got out, I decided I wanted to do something else.” Although his friends tried to talk him into going to trade school, Babbitt applied 14


he said. “It was a real challenge for me, but I applied myself and earned my law degree.” Because of his background in psychology, Babbitt initially decided to go into family law, acting as a counselor in domestic relations. He joined Farish and Farish, which handled family matters and personal injury cases. “They gave me about 50 divorce cases, where the spouses wanted to kill each other,” he recalls. “I hated that, so I started doing PI work.” To learn more about the medical aspects of the law, Babbitt earned an emergency medical technician (EMT) license and soon found himself handling the first medical malpractice case in Palm Beach County. That was in 1967, a time when “people just didn’t sue their doctors,” Babbitt says.

Opening a New Firm That same year, Babbitt opened his own firm with partner Sam Phillips and focused his practice on medical malpractice cases. He soon obtained a million-dollar verdict for his client, whose photo was featured on the cover of Time magazine. Over the next 45 years, Babbitt continued to win multimilliondollar verdicts and settlements in a wide range of cases, including product liability, drug litigation, medical malpractice, and

suit, I’m ready to go to trial. For me it is very satisfying to take apart the chairman of a prestigious medical school and decimate the other side’s witness.” In keeping with that competitive spirit, Babbitt played handball and racquetball for 30 years. Now, he enjoys skiing, biking, running and lifting weights, exercising every day of the year. He’s also an accomplished commercial pilot and flight instructor with ratings in single and multi-engine as well as glider. Since 1969, he has logged more than 4,000 hours as a pilot, including volunteer flights as an “angel” to allow sick people to get needed treatment, and “Pilots and Paws” flights for injured animals. But the most important cause in Babbitt’s life today is finding a cure for amyotrophic lateral sclerosis (ALS), a degenerative nervous system condition that is also known as Lou Gehrig’s disease. “My wife Adrianne has ALS, and I know what a terrible disease this is,” he says. “Scientists are now on the edge of a cure, and we’re helping them by raising money for the ALS Foundation.” The Babbitts have two children, and five grandchildren. Babbitt is also a founding board member of Florida Children First, an organization of attorneys who specialize in helping at-risk

Ted Babbitt writes a note on a pending case.

children in the state’s social services system, particularly those in foster care. “We lobby the Legislature and file suits to obtain rights for these kids,” he says. “It’s a big part of my practice and pro bono work as well.” In the legal profession, Babbitt has served on three task forces appointed by Florida governors and three commissions appointed by the Supreme Court. Now, he is concerned about the continuing pressure from the state

Legislature to stop “frivolous” lawsuits and put caps on damages in medical malpractice cases. “The facts are clear,” he says. “Putting caps on damages does not affect the number of cases filed or the amount of verdicts.” However, there is a clear correlation between insurance premiums and the stock market, he adds. That’s because insurers make their money by investing their premiums, and when the returns are low, they make it up in

premiums, according to Babbitt. In addition, medical malpractice carriers don’t rate individual doctors, Babbitt says. As a result, a neurologist in Miami with no claims for 40 years winds up paying the same premium as a colleague with half a dozen claims in 10 years. “That’ very different from auto insurance,” Babbitt says. “It’s not fair to the good doctors and it’s not conducive to correcting the underlying problem, which is malpractice – not lawsuits.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012



David Bianchi is a natural story teller. More than three decades after his first personal injury case, he can tell you about tracking down the facts associated with a plane crash in Australia, a crippling accident at a Fort Myers laundromat, and a metal cleat that smashed into the face of a Florida International University student causing permanent blindness. “I believe a good trial lawyer needs to be able to talk to the jury so they feel comfortable with you,” says Bianchi, founding partner at Stewart Tilghman Fox Bianchi & Cain, P.A. in Miami. “You can be very smart, but if you can’t communicate with the jury in plain, simple terms about what you are trying to prove, it’s very hard to win. You want to present your case so that the average person will identify with what you’re doing and get an immediate gut feeling that you’re right.” In his 33 years as a trial lawyer, Bianchi has had plenty of opportunities to tell his stories in the courtroom. He has represented clients in a wide range of cases, including business disputes, defective cars and trucks, class actions, suits arising from poorly constructed homes, medical and legal malpractice, automobile accidents, negligent security claims, claims against insurance agents and insurance companies, airplane crashes and many others. To date he has obtained verdicts and settlements in excess of $150 million. “Our firm accepts only a few cases at a time, because we want to keep the quality up and the volume down,” he says. “It is a formula that has worked well for more than three decades.” Bianchi has also been a leader in the legal profession, serving on The Florida Bar’s 16


David Bianchi with a few of his awards. and mementos

Board of Governors, as past chairman of the Trial Lawyer’s Section of the Florida Bar, past chairman of the Joint Committee of the Trial Lawyers Section and the Conference of Circuit and County Court Judges, and past president of the Young Lawyers Division of the Florida Bar. In 2000 he received The Florida Bar president’s award for his “outstanding” contributions to the Bar and to the citizens of Florida. With his wife Julia, Bianchi has been actively involved with the Red Cross, cochairing the annual fundraising dinner, and with Kristi House, a Miami organization that

in a national competition. I was sold – there was no doubt about what I wanted to do.” After sending out resumes across the country, Bianchi was hired in 1979 by Frates Floyd Pearson Stewart Richman & Greer, and soon got involved in the firm’s cases, including an aviation crash in Australia that killed six people. “They put me to work on the case but didn’t tell me what to do,” he says. “I had been practicing for just two years and travelled to Australia to take depositions. It was a great experience. There was no better place to learn.” Not long afterwards, partner Larry Stewart

Stewart proved otherwise. Next, the defense argued that the ChrisCraft cleats were not designed for towing. But Bianchi learned of a similar case decades earlier in Michigan, flew to Detroit and uncovered the long-lost case file in the basement of the Wayne County Courthouse. Sure enough, Chris-Craft had filed an interrogatory answer in that case in which it stated that the stern cleat was specifically designed for towing. The defense then argued that the cleat had been improperly installed by a third party. To rebut that defense, Bianchi tracked down

David Bianchi:

THE STORY TELLER supports sexually abused children. “For the past three years I have been the auctioneer at the Kristi House fundraising dinner, and Julia has been on the board for ten years ,” he says. “It is a most important charity for us.” Bianchi is also a leader at Plymouth Congregational Church in Coconut Grove, serving as chairman of the Board of Trustees, chairman of the Annual Fund and other positions.

Setting His Course Growing up on Long Island in Bellport, NY, Bianchi knew early in life that he wanted to be a lawyer. “I was appointed by our congressman to be a page in Congress when I was in high school and worked with people from all over the country at an early age,” he says. “It was a fascinating experience and cultivated on me an interest in the law when I was very young.” After earning his bachelor’s degree at Tufts University (magna cum laude), Bianchi went on to Boston College Law School. “I was indifferent to much of what they taught us in law school, but I immediately gravitated to the trial practice courses,” he recalls. “I quickly became interested in the mock trials and was selected to represent our law school

asked Bianchi to represent a client who lost her hand in an accident at a Fort Myers laundromat – a tragedy that could have been prevented by a single lock nut on the 1926 commercial ironing machine. “It was a product liability case before the days of a statute of repose, and I was asked to find out what a single lock nut would have cost in 1926,” Bianchi says. “I realized that Sears might still have some vintage catalogs that could answer the question.” Long before there was Google, Bianchi called a Sears archivist in Chicago, who found that 100 lock nuts could have been purchased for $2 that year. Shortly thereafter, the case settled. But those cases turned out to be warmups for an even bigger product liability suit against Chris-Craft over a torpedo-shaped metal cleat. In 1979 a sailboat with Florida International University students aboard was being towed into Bimini by a wooden ChrisCraft when the tow line ripped the stern cleat from the Chris-Craft striking a student on the sailboat square between the eyes. He was immediately blinded. After Bianchi and Stewart filed the case, the manufacturer initially denied responsibility claiming that the boat had been poorly maintained and was not in its original condition. Bianchi and

the same model Chris-Craft built the very same year and found it had the identical installation. “It was a high-profile case,” Bianchi recalls, “and the jury awarded our client a $7.5 million verdict which was a lot in those days.” Shortly thereafter, Bianchi and Stewart were hired to represent a family in New York whose young son received a brain injury when a Chris-Craft cleat ripped from the deck of the identical boat model in the Hudson River. That case settled shortly after suit was filed. For Bianchi, those were the first of a long string of big cases, including suits against Toyota, Nissan, Chrysler, Suzuki and Ford. A decade ago, Bianchi obtained the first U.S. verdict against Mercedes Benz in a case involving a defective airbag system. In 2004, he obtained the largest fraternityhazing verdict in the country representing the parents of Chad Meredith, a University of Miami student who drowned in a campus lake. After making their $14 million decision, the jurors waited for an hour outside the courtroom to give big hugs to Bianchi and the rest of his team. As Bianchi says, “In a trial, so much depends on how you present your case. It all boils down to your ability to talk to people.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012



Shannon del Prado: THE NURTURER

Throughout her legal career, Shannon del Prado has focused on helping people in need. Before even attending law school, she investigated human rights cases in Central America on behalf of the U.S. State Department. Del Prado went on to work for the Department of Justice in Washington, DC, managing a judicial reform program focused on human rights. Now, as a Miami trial attorney, she’s a dedicated advocate for clients in serious personal injury and wrongful death cases. “There’s a true parallel between human rights violations and plaintiff ’s work,” says del Prado, a partner at Pita, del Prado & Muñoz. “In both situations, you’re dealing with a person who has suffered an injury. That person needs someone to listen to their story, help with immediate needs, and serve as their advocate in seeking justice through the courts.” Del Prado is also a passionate advocate for individual rights. She serves on the board of the Miami-Dade Justice Association and is a member of the Florida Justice Association. “I salute the justice associations’ work on behalf of citizens’ rights, which are constantly under attack and threat of erosion.” Fluent in Spanish and English, del Prado comes from a cosmopolitan background. She lived and worked throughout Latin America



and the Caribbean before earning her law degree from the South Texas College of Law. In the mid 1990s, del Prado was working on her master’s degree in international business from George Mason University when she met her future husband, Howard “Skip” Pita. “We were both interested in Latin American politics. We didn’t necessarily see eye-to-eye on some issues, but we shared a common interest in the region,” del Prado recalls. After marrying and moving to Miami, del Prado taught criminal law to graduate students at Florida International University. “In fact, that’s how I became a personal injury lawyer,” she says. “I wanted trial experience. I wanted be able to answer students’ questions about what happens in the courtroom.” At FIU, del Prado also worked on the effort to obtain approval for a public law school in South Florida. The experience of helping people in personal injury and wrongful death cases was engaging and del Prado found that she could do more good for people as a practicing attorney. She joined a Miami personal injury firm and went right to work in the courtroom, winning a $485,000 jury verdict in her first trial. Then came a career-changing decision. In 1999, Pita opened his own firm and invited del Prado to join him. “We found that we got tremendous satisfaction from

working together,” she says. “Now, I can’t imagine not working together.” Like most attorneys, del Prado takes her legal work home as well. “It’s wonderful to bounce ideas off each other at home,” she adds. “And that helps keep us connected.” Sometimes del Prado and Pita take cases together, and sometimes they handle matters separately or with their firm’s third partner Richard Muñoz. Maintaining the right balance between work and family is important to del Prado. She and her husband have three children: Luke – 11, Jade – 8, and Casey – 5. “We love spending time together as a family on the water, cheering our son’s BMX bike races, or watching our girls perform,” del Prado says. “Like any parent, I want to be a good example for our kids. I want them to love what they do in life, to be good people, to give back. We try to lead by example. We volunteer where we can.” Toward that goal, del Prado sits on the board of her children’s school fundraising arm and volunteers in other roles as her time and caseload permit. In the past few years, del Prado and Pita have taken their “giving back” philosophy to a higher level. In 2005, her parents Guido and Sandy del Prado moved to Peru and opened a medical clinic for the underprivileged. Since then, del Prado and Pita have been organizing and funding

“Project Peru”, which sponsors annual volunteer medical missions to the South American country. “The nurses and doctors are the real heroes of the project,” she says. “Project Peru medical teams have performed about 180 surgeries so far. In fact, a Project Peru plastic surgery team went to Peru in May. It is a gift for our family to able to participate and we are proud to be part of the Project Peru team. ”

Inside the Courtroom While del Prado may be a “softie” when it comes to helping people in need, she’s a tough and aggressive advocate for her clients in the courtroom. del Prado is a member of the Million Dollar Advocate’s Forum. Her most recent victory involved a $600,000 life insurance payment to the family of a deceased Colombian man following a fiveyear battle with the insurer.

“Skip and I joust about who is a better researcher,” says del Prado. “I love digging into the case law as well as finding the facts. But more than that, I enjoy the human aspect – the interaction with our clients. We and the client are a team. And the tougher the case, the more connected we become.” Today, del Prado handles a wide range of cases related to trucking, premises liability, product liability and medical malpractice. She is licensed in both the state and federal courts and belongs to the Florida Association of Women Lawyers, Florida Justice Association and the Miami Dade Justice Association. “Our firm’s challenge is being selective in what we take on, so we can give our clients the time, attention and resources they deserve,” she says. “One of the hardest things for me is turning a case down. But you can’t spread yourself thin, and you owe it to your existing clients to be judicious about what you take on.” Asked what makes a good PI attorney, del Prado says it’s a matter of understanding your clients, listening to them and pushing their cases aggressively. “You really have to stay on top of these matters, and make the defendant treat your case as a priority,” she adds. “In personal injury, when someone is injured, the case is personal and clients need an advocate who’s attentive to their needs.” Clearly, del Prado relishes her professsion and her ability to make a difference in people’s lives. “I truly love PI work,” she says. “I learn our clients’ stories, prepare the cases, and help them navigate the whole process. To me, helping clients through the process is the most rewarding part of the job. Getting paid for what I love to do is a wonderful thing.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012



Alan Goldfarb: THE COMPETITOR Alan Goldfarb

has been a tough competitor all his life. He played basketball in college, works out daily at the gym and loves playing hardball in court. “A trial lawyer has to be in good physical and mental shape,” says Goldfarb, founding partner of Alan Goldfarb, P.A. in Miami. “It takes a lot of stamina to prepare your case, and no matter how much you do in advance, there’s always more work you have to do each night during a trial.” Drawing on that internal strength, discipline and dedication, Goldfarb represents plaintiffs in all types of major personal injury cases, from electrocution deaths to trucking and maritime accidents, medical malpractice and product liability claims. In a career that spans almost 40 years, Goldfarb has tried more than 300 cases to verdict, helping clients achieve more than $400 million in verdicts and settlements. “A good trial lawyer has to be a strong researcher, and be willing to dig into the case,” Goldfarb says. “You also need to be creative in developing your strategies - looking for the most persuasive arguments in your case.” In fact, a lot of the rules in sports also apply to the practice of law,” Goldfarb adds. “You have to follow the rules, and the judge serves as a referee. You might not like the call, but you have to follow the ruling.” Goldfarb has been a hard worker all his life. Born in New York, he moved to Miami Beach at age 9 with his mother and two sisters following his father’s death. “It was pounded into my head as a kid that I’d better get a college scholarship,” he recalls. A natural athlete, Goldfarb earned a “full-ride” basketball scholarship to Clemson University and played “hoops” for the Tigers. “But I looked around and saw there were other guys who were taller and stronger than me, so I realized I’d better focus on my studies. I began trudging to the library night after night, and transferred that discipline I’d learned from athletics into my academic career,” he says. After graduating from Clemson, Goldfarb enrolled at the University of Miami School of Law and earned his degree in 1972. He spent 20


one year handling commercial cases, then shifted his practice to personal injury cases and has never looked back. “I really like the resultsoriented focus of my trial work,” he says. “You have to really strive for the win. In all these years, I have only billed a handful of clients on an hourly basis.” Looking back on his early days, Goldfarb says the 1970s was a “wonderful time” to be a trial lawyer. “Today, most defendants have taken a hard-line approach to litigation,” he says. “Rather than pay the fair value of the claim, they try to wear your down, wear you out, out-paper you and out-expense you.” Noting that it can take several years and $300,000 to $400,000 in out-of-pocket costs to bring a major case to trial, he adds. “You have to have the resources and the attitude to stay in the fight with the corporate big guys.”

Focusing on Malpractice Through the years, Goldfarb has focused much of his practice on medical malpractice cases. “I’ve found that once you start digging into the evidence, you find more and more medical malpractice problems,” he says. “But you have to bring in doctors and nurses to explain what went wrong to the jury.” Nowadays, there can be multiple expert witnesses on both sides, adding to the complexity and costs of trying a case. Today, Goldfarb’s practice is about 40 percent medical malpractice cases, with a variety of other cases making up the balance. For example, Goldfarb in December obtained an $8.8 million verdict for the family of a mother killed in a 2008 accident. The father, who was driving the car, was seriously injured, and their two young children were not in the vehicle. “We established that the 17-year-old driver of the other car was texting at the same time he was speeding down Bird Road,” Goldfarb says. “His father had given him the keys to a new Subaru, and he smashed into my client’s car, never braking or slowing down.” There are

many things that can distract a driver, but texting is clearly an extremely serious problem. In April, Goldfarb began the second phase of the case: a trial against the driver’s father for comparative negligence and punitive damages. “A tragedy like this affects the entire family,” Goldfarb says. “It is a myth that capping damages will somehow affect insurance rates. To achieve justice, damages should not be limited to just the person who is injured or dead. We have to allow a jury to decide what’s fair based on the facts of the case.” Through the years, Goldfarb’s trial skills have been widely recognized by his peers. He is a founding member of the American Board of Trial Advocates, and a member of the Million Dollar Advocates, Florida Justice Association and The Association of Trial Lawyers of America. He received the “Trial Lawyers Care Volunteer Award” representing victims of the 9/11 terrorist attacks and the EAGLE Legion Award from the Florida Justice Academy in 2009. In addition, he has lectured on a variety of topics like “Opening Statements” and “Jury Selection.” Outside the courtroom, Goldfarb stays in close touch with his four adult children and two grandchildren. His son Michael will be graduating from St. Thomas University School of Law in May and plans to join the firm. “That’s on the horizon and I’m looking forward to working with him,” Goldfarb says. In the community, Goldfarb participates in a variety of charities, including Big Brothers and Big Sisters Foundation, the Greater Miami Jewish Federation and the South Dade Jewish Community Center. He is an active sponsor of Court Care, which provides a safe place for children in the middle of divorce or domestic violence cases. In the past, he served as a Little League baseball coach, a youth basketball league coach, a commissioner for youth basketball programs, and sponsored numerous high school athletics programs. “Every Thanksgiving, our firm buys 250 turkeys for needy families,” he says. “We distribute them from the churches in South Miami-Dade, along with t-shirts, baseball caps and other gifts. It’s one of our firm’s important traditions.” Looking ahead, Goldfarb plans to keep battling for his clients in and out of the courtroom. “This is not work for me,” he says. “I love helping people and being able to change someone’s life for the better.”




John Leighton: THE CRUSADER



John Elliott Leighton wants to make the world a safer place – particularly for children, the elderly, travelers and other vulnerable people. “As a plaintiff’s attorney, I want to see that the work I’m doing is making a difference for individuals, families and our society as well,” says the managing partner of Leighton Law, P.A. in Miami. For Leighton that means changing people’s behaviors as well as state and federal laws. “We have made it socially unacceptable to drive drunk or to smoke indoors,” he says. “But we have not yet done so with distracted driving, which is the number one cause of motor vehicle crashes.” Noting that Florida is one of the few states that have refused to ban texting while behind the wheel, Leighton says, “People want 24/7 access but we have to say it is simply not acceptable for drivers to text or send emails.” During his long career as a personal injury attorney, Leighton has handled many cases with wide-reaching social implications. In fact, several cases have resulted in policy or procedure changes by businesses or governmental entities. One example is premises security. When Leighton began litigating these cases 26 years ago, shopping centers, hotels, offices and apartment complexes often didn’t hire security guards for fear of “scaring people away,” he says. “Since then, it has become safer to go shopping, enter an office building or go home to your apartment because of litigation results. We have seen crime levels decrease and risky places become safer locations –a lasting benefit from PI litigation.” The same trend has occurred in product liability cases, such as installing airbags in cars and adding other safety features. “I’d like to see the same thing continue with other areas of tort litigation,” he adds. “I’ve always had a sense of advocacy on behalf of the little guy. I think that’s in the DNA of plaintiffs’ lawyers.”

A Strong Sense of Advocacy Born in San Francisco, Leighton grew up in Hollywood, Florida. “My father was a lawyer,” Leighton says. “When I was about 6, he talked at the dinner table about a man who had been badly burned internally after drinking lye from a soda bottle that had not been properly cleaned and rinsed at the bottling plant. I knew even then that I wanted to help fix those

kinds of problems when I grew up.” As a teen, Leighton became editor of his high school newspaper and wrote articles for The Miami Herald. He also led his high school debate team to a state championship. But rather than go into journalism, he focused on law, earning his bachelor’s and law degrees at the University of Florida. Early in his career, Leighton took up the challenge of an “unwinnable” negligent security case involving a good Samaritan who was shot in the chest after chasing down a thief who snatched a purse from a woman in the parking lot of an Aventura shopping center. “There had been a rash of assaults and robberies at that center,” Leighton says. “I had been litigating inadequate security cases for about five years, and this was the first time my client was a rescuer who was injured as a result of violent crime.” In the 1993 case, Leighton argued that if it was reasonably foreseeable for a crime like purse snatching to occur, the shopping center owner owed a duty of care for the rescuer. The jury agreed and awarded his client $1.5 million. As Leighton says, “He was a true hero, who took a bullet for someone.” On the other hand, other people’s negligence has been the key factor in many of Leighton’s high-profile courtroom battles. In 2007, for instance, Leighton represented the family of two teenage sisters from Ocala who were parasailing in Pompano Beach when the rope snapped in high winds, throwing them into a hotel roof. Amber May White was killed and Crystal White suffered serious head injuries. “There were warnings about thunderstorms and all other businesses on the beach had closed up,” Leighton says. “However, the parasailing operator wanted to make a little more money, with tragic results.” Drawing on his on-the-scene observations and extensive legal research, Leighton was successful in showing that the parasail operator was acting as an apparent agent of the beachfront hotel. The case was settled, and Leighton became a staunch advocate of stricter parasailing regulation in Florida, urging the state Legislature to pass the proposed “Amber May Law” in its last two sessions. “Having a personal connection with my client is important,” Leighton says. “I don’t take a case if the client’s story is not compelling. But if I do feel strongly about it, that connection provides me with an

additional motivation – like flipping on the afterburners in a long-distance run.” Today, much of Leighton’s PI work revolves around what he calls Resort Torts™, a term he trademarked that includes cruise ship, maritime, and violent crime/negligent premises security cases. “For the past three years, I have been giving legal seminars about Resort Torts, which encompass many types of resort, vacation and travel liabilities,” he says. His two-volume treatise, “Litigating Premises Security Cases” (Thomson-West, 2006), is a comprehensive text on evaluating, preparing and trying premises security cases. A nationally recognized authority on inadequate security litigation and other issues, Leighton is often asked to comment for the media, including NBC’s Today Show, Inside Edition, and other news programs. In his practice, Leighton also handles legal malpractice and institutional child abuse cases, and volunteers his time as guardian at litem. Outside his legal work, Leighton enjoys skiing, running and spending time with his wife Caryn Bellus, an appellate lawyer with Kubicki Draper, and daughter Taryn. “My wife and I try not to talk shop at home,” he adds. “We focus on being parents first, lawyers second.” Leighton also serves on the board of Temple Beth Am and is involved with other community activities. Professionally, Leighton is chairman of the American Association for Justice Inadequate Security Litigation Group, and chairman of The Academy of Trial Advocacy, a national invitation-only association of the nation’s leading catastrophic injury trial lawyers. He sits on the board of advisors of the National Crime Victim Bar Association, which honored him with its 2007 “Advocate of Justice” award. Looking ahead, Leighton would like to see the United States do a better job of protecting children from pedophiles, predators and other criminals. “We need to stop the institutional support of child sexual abuse through tort accountability,” he says. “Individuals may be subject to criminal prosecution, but businesses need to feel it in their pocketbooks. That’s the best way to stop criminals from infiltrating our institutions and gaining access to children. Ultimately, it may be the plaintiffs’ lawyers who change the law and make a difference in our society.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012



Sheldon Schlesinger: THE EQUALIZER

When Sheldon Schlesinger walks into a courtroom, he’s ready to take on the country’s biggest corporations. “I’m known as the equalizer, because I can meet them pound for pound,” says the veteran Fort Lauderdale plaintiff ’s attorney. “Through the years, I have had the privilege of helping people who have suffered enormous injuries. I feel fortunate to serve my clients.” Through the decades, Schlesinger has taken on automobile manufacturers, pharmaceutical companies and large hospitals in personal injury, products liability and medical malpractice cases. In 1995, he was a member of the legal team that successfully sued cigarette maker Liggett Group and the tobacco industry on behalf of the State of Florida, resulting in a landmark settlement of more than $13 billion. In 2011, Schlesinger, the founding partner and CEO of Sheldon J. Schlesinger, P.A. in Fort Lauderdale, was inducted into The Trial Lawyer Hall of Fame. For over 50 years, he has represented individuals and families in landmark cases across the nation. He is a member of the Inner Circle of Trial Advocates, an elite organization of the nation’s 100 top trial lawyers, and been honored by many other legal groups. Reflecting on his career, Schlesinger says that plaintiffs trial lawyers have made the country a safer place for all citizens through what he calls “therapeutic verdicts.” For example, Schlesinger won the first plaintiffs’ products liability case against Toyota in the U.S. and one of the largest such cases against General Motors in the 1990s. “These were horrendous cases involving postcollision, fuel-fed fire cases with a number of deaths,” he says. “Since then, there are far fewer post-collision, fuel-fed fires. If a vehicle is hit from the rear, it doesn’t explode and turn into an inferno. That’s 24


a result of the verdicts against the auto companies all over the country.” Schlesinger adds that the trial process has also resulted in safety improvements in the healthcare and pharmaceutical industries. “Although hospitals and physicians have sought immunity from lawsuits, that legislation would not lead to a reduction of negligent care. It’s only the fact that providers can be held accountable for their mistakes that can reduce the number of these malpractice cases.” With his many high-profile cases through the years, Schlesinger has been the subject of numerous interviews and stories in newspapers, magazines and television. He has appeared in Time Magazine, People Magazine, Forbes Magazine, the New York Times and the Wall Street Journal, and has appeared on “60 Minutes,” “20/20,” “The Phil Donahue Show,” and numerous other programs. After the conclusion of a lengthy medical malpractice trial in which Schlesinger represented a severely crippled young woman against a large prominent hospital and emerged victorious, the presiding judge entered a court order describing Schlesinger as “one of the most experienced and skilled attorneys which the Florida Bar has to offer,” and that Schlesinger’s “experience and ability in medical malpractice litigation is exceeded by no one.”

A Brooklyn Accent Schlesinger was born in New York, and still speaks with a Brooklyn accent. “I always knew I wanted to be an attorney,” he says, noting that his high school yearbook lists “attorney” under his name. Schlesinger came to South Florida in 1948, and earned his undergraduate and law degrees from the University of Miami. He joined The Florida Bar in 1955 and remains active 57 years later.

“When I started in the mid 1950s, a personal injury case lasted two or three days,” Schlesinger says. “It was one-on-one with the defense attorney and you had to be ready to stand and deliver. In my first case, I was well prepared with the facts, but didn’t know where to stand or how to move around in the courtroom.” Today, Schlesinger has a model courtroom in his 10-attorney office building, where he conducts mock trials to give clients a feel for the atmosphere of being in court. “I’m proud to say I’ve never lost a case in our courtroom,” Schlesinger says with a smile. Asked what makes a good trial lawyer, Schlesinger says, “You have to walk a mile in your client’s shoes. Then you have to be willing to go the distance, since these cases require tremendous amounts of time and money.” He also emphasizes the importance of putting in long hours preparing for trial. “It’s not a matter of fancy footwork in the courtroom. It’s a matter of understanding what the case is about.” In a medical malpractice case, for example, a good plaintiff ’s attorney knows what went wrong, why the problem occurred and is familiar with the details as well. “When a professional takes the stand as an expert witness, you have to know as much about that topic as he does,” Schlesinger says. “And he has to know that you are also an expert, so if he embarks on gamesmanship, he finds himself in deep trouble.” However, Schlesinger says corporate America has been steadily chipping away at the jury trial system through the years. “They would like to put a chain on the courthouse door with a big lock,” he says. “Trial lawyers have kept them from doing that so far. But I’m wondering how the costs and protracted nature of plaintiffs’ cases will affect our younger lawyers. How well will they be able to represent sorely injured individuals?”

Sheldon Schlesinger points to a yellow fuel tank on a vehicle housed in his office’s ‘courtroom.’

That’s both a professional and a personal issue for Schlesinger. His sons Gregg and Scott are attorneys who practice with him in the Fort Lauderdale office. “Both have multimillion dollar verdicts under their belts for cases they have tried in a courtroom on their own two feet,” he says. “I’m proud of their ability to represent our clients.” Schlesinger and his wife Barbara recently celebrated their 57th anniversary, and enjoy spending time with their children and six

grandchildren. “I also enjoy fishing and restoring antique cars, including several Ford Model As,” Schlesinger adds. Schlesinger is also one of Broward’s civic leaders and a long-time supporter of the Broward Center for the Performing Arts, the American Cancer Society and other charitable organizations. He has served as a member of the board of governors of Nova Southeastern Law Center. Schlesinger also served as chairman of the board of trustees

of Broward Community College (BCC) for 13 years. “I believe strongly that education should be available to everyone,” he says. “At BCC, one of my primary concerns was to keep costs affordable so the college could serve as a springboard to undergraduate and graduate degrees. It was education that gave me the opportunity to be a successful trial lawyer, and I want to be sure that future generations have the same opportunity.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012



ANRealIMPROVING MARKET Estate Attorneys See Upturn in Practices From downtown Miami to northern Palm Beach County, South Florida’s real estate attorneys are seeing a clear shift in the market. “We’ve seen a huge uptick in business this year,” says Lucia A. Dougherty, co-chair, Land Development & Zoning, Greenberg Traurig’s Miami office. “From 2009, when there was almost no work at all, our practice has slowly gotten better and better. Now, some developers are getting building permits and others are acquiring new properties.” Other leading real estate attorneys point to a similar movement toward new development and investment, and a higher volume of leasing and zoning work, although many clients still need help finding solutions for their distressed commercial and residential assets. “My workload has shifted,” says Suzanne Amaducci-Adams, partner at Bilzin Sumberg Baena Price & Axelrod LLP in Miami. “I’m doing about 75 percent non-distressed deals these days, and life is a lot more positive.” James Berger, managing partner, Berger Singerman in Ft. Lauderdale, says he’s seen a migration of the firm’s real estate practice. “Now, we’re seeing a growing opportunity to represent individuals, companies and large funds that are acquiring assets,” he says. Those real estate 26


James L. Berger

assets include projects in mid construction, and completed buildings with active sales programs, as well as acquisitions connected with the resolution of litigation or bankruptcy proceedings.

Greater Market Stability One of the keys to South Florida’s real estate comeback has been a sense that market values are finally stabilizing. “Anyone who has practiced in South Florida over the past decade has seen the great boom and bust cycle,” says John T. Metzger, managing member of McDonald Hopkins’ West Palm Beach office. “For years now, my practice on the commercial side has focused on distressed properties and assisting lenders, developers and owners in connection with the defaulted loans and trying to work out the situation and dispose of the distressed assets.” But now, owners, developers and tenants are dusting off their growth plans and looking at ways to take advantage of the current market. “On the leasing

side, I’ve been dealing with retail, office and industrial tenants who are trying to renegotiate their leases or terminate their lease obligations,” says Metzger. “Some tenants have needed to downsize, while others want to make their moves to upgraded properties or to larger spaces.” Metzger says he’s also starting to see the reemergence of the residential construction sector – primarily on high-end properties. “I go cycling on S.R. A1A on weekends, and probably half of the vacant lots between Palm Beach and Delray Beach are now under construction with mega-mansions and condos,” he says. “That’s an encouraging sign for our real estate market.” Metzger adds that affluent homeowners have more confidence that the market has stabilized and are using their credit and equity resources to capitalize on today’s low interest rates. On the commercial side, he is seeing end users weigh the pros and cons of buying a building for their own purposes. “I am not seeing much speculative commercial development now,” he says. “It’s more about

users who have a need and want to take advantage of today’s conditions.”

New Development and Leasing Activity New development and leasing activity is on the rise, according to Harold L. “Hal” Lewis, head of real estate and banking, corporate, and transactional departments at Pathman Lewis, LLP in Miami. “We are seeing a definite upturn in zoning work, with several large projects in the Suzanne AmaducciAdams




Lucia A. Dougherty

works,” he says. “That’s an area that’s been slow over the past few years.” Lewis has assisted clients in a low-rise condominium development on Miami Beach as well as a proposal to expand the Miami Beach Convention Center. Lewis says there’s also more activity in the downtown Miami office leasing market, as well as a higher volume of transactions. Amaducci-Adams agrees. “We’re working on a construction loan for a new hotel in Miami that is not on the water,” she says. “That’s a very positive sign that the market is picking up again.” 28


Harold L. Lewis

Dougherty has advised several clients with new hotel and residential projects, which in some cases involve converting planned condominiums to rentals. “There are a lot of apartment companies coming to town to do projects in the urban core,” she says. “The trend along the East Coast is to sell off garden-style apartments in the suburbs in order to buy assets near the water in cities like Baltimore and Miami. In Miami Beach, Dougherty is working with clients on several hotel projects, including artécity and 321 Ocean Drive. “On the mainland, prices have risen

dramatically between S.R. 836 and Brickell,” she adds. Referring to the Gentling Group’s plans to turn the Miami Herald property on Biscayne Bay into a large-scale casino, Dougherty says, “We call the higher land values a sign of Gentling fever.”

International Investment South Florida attorneys say international investment has been vital for the region’s recovery. Amaducci-Adams says about 75 percent of her new clients in the past year have been foreign investors. “Miami is now the gateway to the world, not just Latin

America,” she says. “Both Europeans and Asians are anxious to buy here. They view Miami as one of the top ten cities in the U.S. and they all want to be here.” In addition to the size and strength of the U.S. economy, Miami is seen as having good investment values compared with other cities in the world. Having convenient air connections, fine restaurants, outdoor lifestyle, arts and cultural activities, warm weather and a sophisticated business infrastructure are other key reasons, according to Amaducci-Adams. “A few years ago, we saw a lot of Mexican investment, as many wealthy families were coming here,” she says. “Now, those investors are bringing businesses with them.” For instance, Amaducci-Adams recently represented Agave Florida Investments, an affiliate of the multinational Jose Cuervo Group of Mexico City, in the new 396 Alhambra building in Coral Gables. Berger says the wave of international investors buying units in downtown Miami condos has been the most important trend in the multifamily residential sector. “Multifamily will remain strong, and there have been some very successful bulk condo purchases by some of our clients,” he says, noting the importance of timing. “Investors who have purchased in the last 18 months or so have been able to get in with the right pricing and are having success in selling out their units.” Because financing remains tight for residential buyers, Lewis says a substantial percentage of residential transactions are all-cash deals, particularly on the international side. “We are seeing many buyers from Brazil and the rest of Latin America, as well as Canada, and we’re also doing work for Italian and French investors,” he says.

Distressed Assets Of course, there are plenty of distressed real estate assets in search of a legal or financial solution. Amaducci-Adams has handled loan-restructuring matters in South Florida and beyond, including a five-star resort property in Colorado. She notes that income-producing properties can face two kinds of financial distress: difficult

says. “Developers were selling “oceanfront” condos five blocks from the ocean. In the speculative book, buyers wanted to get in and out in 90 days and location didn’t matter to them. But since then it’s made a huge difference.” However, legal work associated with distressed assets is likely to be a significant portion of many practices for at least the next two years, according to several attorneys. As Berger says, “I think we’ve cleaned out a lot of junk, but there’s still a long way to go.”

economic conditions or loans coming due. “Usually, the second situation is better for the owner and potential investors because the property is performing,” she says. In fact, Amaducci-Adams says there are many opportunities for venture capital firms, funds and investors with cash to make equity investments. “That can be a win-win for everyone because the original owner can hold on to a successful project,” she says. “A new equity participant has the benefit of working with an owner who has made it through the downturn. I think we’ll see more of those pairings, particularly since a lot of five-year maturities [loans] are coming due this year.” Berger expects the real estate market in 2012 to be characterized by “fits and starts” as investors look for the best opportunities in a still-challenging marketplace. Pointing to an increase in real estate transactions in March, compared to January and February, Berger says, “The lenders wanted to get their troubled assets off the books by the end of the quarter. That means we might see a stronger sales pace before the end of the second, third and fourth quarters as well.”

The Outlook Looking further ahead, Berger hopes developers and lenders have learned the right lessons from the downturn. “This last cycle exposed many difficulties in financial exposures of the parties and how all the nonfinancial structural elements of a complex were put together,” he says. “Now everyone has seen those pitfalls in deals and properties and is looking at how to avoid those problems. After all, it’s a lot harder to clean them up midway than to start from scratch. So many deals today are more complex.” One of the key points, according to Berger is that location matters. “We had forgotten that lesson John T. Metzger during the boom,” he SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012





h t i w w e N s ’ t a h W

? Y R E V O C S I e-D With the growing

importance of e-discovery, new tools and time-saving strategies are making the process smoother and more efficient for litigation support professionals, attorneys and their clients. “Today, e-discovery is playing a role in every type of case,” said Matthew E. Druckman, director, litigation support, Cherry, Bekaert & Holland, L.L.P. in Coral Gables. “Everything is out there someplace.” From email and text messages to social media posts and financial records, more and more relevant documentation is stored in electronic format. In some cases, a discovery motion may need to include records from desktop and laptop systems, smartphones, tablets or archived material on disks, backup tapes, mirror drives or cloud service providers. “Attorneys need to learn as much as they can about e-discovery from the technology side,” said Steven Berwick, partner, Kaufman Rossin & Co., P.A., Miami. “You don’t have to be a technology expert, but you need to understand how the process works so you can better advise your clients.” Like other forensic analysts, Berwick recommends bringing in an e-discovery expert early in the case. “If you are an in-house counsel,

you need to identify the potential documents that may need to be produced and ensure that a litigation hold is in place,” he said. “Once the subpoenas start going back and forth, you may need to outsource with a service that can identify the data, capture the information and preserve the documents.” One of the key issues for both sides is how much needs to be produced in discovery. “A plaintiff might ask for every email for the past five years relating to a certain matter,” Berwick said. “The defense would say that’s overly burdensome. So what you need to do is understand where the relevant data might be, and narrow the scope of the request. That reduces the costs while allowing the plaintiff to get the material most relevant to the case.” Martin K. Williams, partner, Fiske & Company, Plantation, says the size and scope of e-discovery can vary based on the nature of the case. For instance class action or commercial litigation cases can generate massive amounts of information. “On the other hand, a real estate or a family law attorney might only need documents on a computer hard drive or a flash drive,” he said. “However, the nuances of e-discovery are similar, regardless of the scale.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012



Steven M. Berwick

Predictive Coding One of the fast-emerging tools to help accelerate the search for relevant documents is predictive coding, Although still in its infancy, predictive coding will allow an attorney and litigation support team to apply an algorithm or set of instructions to identify the key documents in a computer-generated e-discovery search. For example, a forensic team might be asked to review 5,000 emails related to a case, Berwick said. With predictive coding, the legal-forensic team could review 200 or 300 messages, noting which are relevant and which are not. “That trains the computer, which can then go through the rest of the messages and note which emails are responsive to the subpoena and which are not,” Berwick said. “From an attorney’s perspective this is new technology,” said Daniel A. Medina, partner, Grant Thornton LLP Miami. “It has been gaining a lot of support and we expect it will be tested and tried in a case in the next six months to a year.” Since the volume of electronic data is increasing exponentially, predictive coding may become necessary to prepare a relative set of 32


Daniel A. Medina

documents, Medina says. “None of us realize just how much storage email takes up,” he said. One gigabyte of email could fill 40 to 50 banker boxes of printed documents, and just one flash drive could hold 5 to 16 gigabytes. “There is no easier button that magically processes the data we collect,” Medina said. “I was in West Palm Beach recently and collected 2 terabytes (2,048 gigabytes) of data. We have to carve through a lot of information that has nothing to do with the case in order to extract the relevant documents. It takes time to do that in the laboratory. So the goal is to avoid processing mountains of garbage and get our clients what they need to focus on for their cases.”

Native Formatting Another key to saving time and money is the ability to obtain financial statements, tax returns and other accounting records in their native formats, says Williams. “Rather than summarized statements, we can now get an actual copy of the file in QuickBooks or similar application,” Williams said. “Having that file in native format makes it easier to search for information. That simplicity is a huge factor today, since attorneys are looking for the biggest bang for the buck.”

Williams recently assisted an attorney whose client claimed he was swindled out of $2 million in a real estate development. The original discovery request produced architectural drawings and building permits, but nothing relating to the financial side of the case. “We told our client that we needed the QuickBooks files, rather than spend our time going through box after box of irrelevant paper data,” Williams said. Although it took six months, the defendant finally produced the electronic files in native QuickBooks format. “Within an hour of reviewing the numbers, we could see a blatant pattern of fraud,” Williams said. “It was clear there was a complete misappropriation of the development funds into personal accounts.” When the case was tried, the client received a judgment of $11 million, compared with the actual $2 million loss. While QuickBooks dominates the small business market, forensic analysts can also review financial applications in native format or export the data to a Microsoft Excel spreadsheet. “With an Excel file you can search thousands of transactions in minutes and summarize the findings,” Williams said. “Also, you can look at the formulas in the spreadsheet, since if they are wrong the data

Martin K. Williams

sets will be wrong as well.” Other advantages of e-discovery include being able to simplify the findings and provide a high-level summary for counsel and the court, Williams added. “If you find a ‘smoking gun’ in the native financial files, you know you have solid evidence. After all, if you’re asked the question, ‘Where did you get this information?’ you can point to your opponent and say, ‘These are your own books and financial records.’”

Preserving Privacy For in-house attorneys, Druckman says the key issues relating to e-discovery include preserving confidentiality and privacy. “When you’re dealing with sensitive information, you need to understand the defensibility of production requests,” he said. Another important step is understanding where data is being kept – particularly as cloud service providers play a bigger role in archiving and backing up documents. “I think this is the way of the future,” Druckman said. “With cloud computing, you can set up virtual databases and data rooms, giving access to whomever you want.” But from an in-house perspective, you need to do due diligence on the service

Matthew E. Druckman

provider and “dig into” the terms of service agreements, he added. “Be sure to negotiate those terms so that they meet your particular requirements,” he said.

Florida rule, the litigation hold would not go into effect until a lawsuit is filed. “South Florida attorneys should be aware of these potential changes,” Berwick said, “because they could affect the litigation process.”

Florida Considers New Rules The era of e-discovery dates back to December 2006 when a key modification of the federal rules of civil procedure required both sides to meet and confer to discuss the production of electronic documents. Since then, forensic analysts, attorneys and judges have all been wrestling with e-discovery issues in the federal courts. However, Florida has not yet adopted a similar e-discovery rule. According to Berwick, The Florida Bar has been looking at e-discovery recommendations that would go to the state Legislature, which could modify the current law. In general those recommendations follow the federal rules with two exceptions. There may not be a “meet and confer” requirement because the cases in state court are generally smaller. The other potential difference could be in litigation hold requirements. Under the federal rule, information relevant to a lawsuit must be preserved if you have reason to believe you will be sued. Under the proposed

Plan Ahead – and Be Patient Medina says it’s important to consider the e-discovery issues as early in the case as possible. That’s one of the best ways to avoid the two pitfalls of over-production or underproduction of data. “In one recent case, nonforensic professionals collected the data but key documents were missing,” Medina said. “In other cases, privileged data was sent to the other side.” Berwick notes that there has been a change to the federal clawback rule relating to e-discovery. “If you inadvertently produce a privileged document, you can now take it back. You still have to do your due diligence, but if something slips through the cracks, you can now get it back.” Finally, Williams advises attorneys to be persistent and patient in these cases. “Don’t stop trying to obtain e-discovery even if you are denied once or twice,” he said. “Eventually, you should get what you request. And remember that e-discovery is not as cumbersome a process as you would think.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012



U.S immigration

lawyers stand as the front line of defense protecting immigrant families from draconian immigration laws and poorly thought out U.S. immigration policies. Since 1996, our arsenal of legal remedies has been stripped by the enactment of harsh laws that make it exceedingly difficult to remedy the situation of a family who came to this country illegally or overstayed their visa. Even more frustrating is the lack of options for immigrant children who were brought to this country by their parents at a young age and through no fault of their own find themselves young adults with no legal status. As a result, we continue to witness heartbreaking stories of undocumented children rising from humble beginnings who become class valedictorians, are admitted to top universities, serve in Civic Organization, then very abruptly realize their seemingly bright future is jeopardized. Invariably, these hardworking, motivated kids are placed in removal proceedings , unable to work because they are not authorized, not permitted to drive because they cannot obtain a driver’s license, and unable to pursue further education because they cannot afford out-of-state tuition.



Just this past few months in Florida we have witnessed the valedictorian of North Miami High School placed in removal proceedings and a top graduate of Florida State University Law School unable to obtain a license to practice law because of their unlawful status. These situations have created a climate of appropriate outrage and public consternation, but hopefully, too, some momentum for positive change.



(1) five years of continual presence in the United States (2) entry to the United State while 15 years of age or younger (3) good moral character since entering the United States (4) is not otherwise inadmissible To remove the conditional basis of residency, an alien must establish that he or she has continued to be a person of good moral character and has acquired a degree from an institution of higher education or has completed at least two years in good standing for a bachelors degree or higher degree in the U.S. or has served in the uniformed services for at least two years, and, if discharged, received an honorable discharge. There is also a hardship exception for those who for extenuating circumstances could not comply with the enumerated conditions. The benefits of the passage of the DREAM Act have been well-documented. According to the Immigration Policy Center, the taxable income generated by wages from DREAM Act beneficiaries would be staggering. A recent study by UCLA estimated that the total earnings of DREAM Act beneficiaries over the course of their working lives would be between $1.4 trillion and $3.6 trillion. The Congressional Budget Office estimated that the House version of the Dream Act introduced in 2010 would have reduced the national deficit by more than $2.2 billion over the next decade. The economic benefits are clear, but the moral imperative is even stronger. For the past two decades, I have practiced immigration law in this community, and watched a generation of undocumented children unable to reach their full potential. The legislative branch cannot and should not continue to, time and again, turn its back on deserving and motivated young students with boundless potential, who, if permitted to do so, would without question, positively contribute to America’s prosperity and success. The struggle of these young undocumented children is a result of Congress’ failure to pass meaningful legislation that will keep deserving families

together, attract the best and brightest from around the world, fill needed shortages on nurses, engineers and other professionals and welcome investors and entrepreneurs who create jobs. Quite plainly, our country’s immigration system is in need of a major overhaul. Passage of the DREAM Act would be a meaningful first step. If America is truly the land of opportunity, it should have the wisdom and fortitude to embrace the hundreds of thousands of undocumented immigrant youth who have come to our shores and, by all measures, have succeeded. We cannot continue as a community to turn our backs on these children and young adults who have thrived in our schools and positively contributed to our nation. To continue to ignore their plight is morally reprehensible and strategically, a failure of epic proportions. Roger Bernstein is a partner in the immigration law firm of Bernstein OsbergBraun Caco & Solow, LLC. He was the 2011 chair of the Florida Bar’s Immigration Certification Committee. He is admitted to practice law in Florida, the 11th Circuit Court of Appeals and the Supreme Court of the United States.




The Obama administration has recently publicly shifted its focus, and rightfully so, on removing criminal aliens rather than hardworking undocumented students and families. As it currently stands, the government, in this instance, will defer deportation proceedings for deserving students and families but cannot affirmatively provide any tangible benefit. Immigration judges and well-intentioned Department of Homeland Security (DHS) prosecutors have virtually no discretion to grant or permit meaningful relief. The net result is a stalemate, where talented and deserving youth are not deported to their native countries but are not legally permitted to drive, work or attend school in the United States. They are, in essence, marginalized because of our legislatures’ unwillingness to act, and our communities’ failure to more forcefully advocate for a humane solution. Now is the time to muster the political will and courage to do the right thing. It is estimated that there are more than 2 million undocumented children and young adults who would benefit from the passage of the Development, Relief and Education for Alien Minors Act, better known as the DREAM Act. The goal of the DREAM Act is to provide undocumented youth access to residency, university education, and ultimately, productive employment. The latest version of the DREAM Act, supported by U.S. Senator Marco Rubio, has not yet been formally introduced in Congress. Reportedly it is a compromise that satisfies restrictionists’ concerns about not passing an amnesty and provides what should be a politically acceptable process for deserving youth to acquire lawful status. In its present version, however, it falls short of providing lawful permanent residency and providing a path to citizenship. Most immigration advocates welcome the current version as a good first step. A more gracious and generous version of the DREAM Act, S.952, was introduced in the U.S. Senate on May 11, 2011, but failed to become law. It authorized the cancellation of removal and adjustment of status of certain alien students who are long-term U.S. residents and who entered the United States as children. The bill provided conditional residency, if the “alien” demonstrated by a preponderance of the evidence:




The individual mandate and the other insurance-related provisions contained in the Affordable Care Act (ACA) have drawn most, if not all, of the public attention. Virtually unnoticed, except by those in the industry, are the significant fraud fighting weapons that the ACA has added to the government’s arsenal. These ACA provisions are not under review in the challenges to the act currently before the U.S. Supreme Court. If, however, the entire statute is struck down, it is safe to say that both Republicans and Democrats will



be very upset because much of the money that was appropriated by the ACA to implement anti-fraud efforts has already been spent. More significantly, these ACA provisions are clear money-makers for the government. Should this baby be thrown out with the bathwater of the individual mandate, the government will be deprived of significant fraud fighting tools, as well as a substantial revenue stream. These fraud fighting provisions in the ACA include the following:

1. Increased Funding to Fight Fraud The ACA provided mandatory appropriations of $1.7 billion for FY 2010 and $1.7 billion for FY 2011, to fund the fraud enforcement efforts of the Department of Health and Human Services (HHS), the HHS Office of Inspector General (OIG), the Department of Justice (DOJ), and the FBI. The ACA also provided discretionary appropriations of $311 million for FY 2010 and an estimated $561 million for FY 2011. Much of this funding has already been used. For example, DOJ’s Civil Division has doubled the number of lawyers in its Frauds Section. In addition, the Centers for Medicare and Medicaid Services (CMS), the agency within HHS that administers Medicare and Medicaid, has established an Office of Program Integrity that has heavily invested in personnel, hardware, software, and programming to verify and crosscheck vast amounts of data. These investments have yielded strong returns. On February 14, 2012, DOJ and HHS announced that their joint Fraud and Abuse Control Program, which was utilizing the resources authorized and funded by the ACA, had recovered nearly $4.1 billion in FY 2011.

2. False Claims Act Amendments The government’s weapon of choice against health care fraud has been the federal False Claims Act (“FCA”), because it imposes potentially ruinous civil penalties and because whistleblowers can initiate an action (and receive a percentage of any recovery), thus bringing more instances of alleged fraud to the attention of the government. The FCA prohibits the submission of false or fraudulent claims, and violations carry civil penalties of $5,500 - $11,000 per claim, plus treble damages. A large urban hospital can submit hundreds of claims per day to Medicare and Medicaid. At $5,500 to $11,000 per false claim, potential liability can be in the hundreds of millions of dollars. Potential liability of this magnitude has proven to be a powerful incentive to settle. The $4.1 billion recovered in FY 2011 is primarily attributable to settlements.

Under the ACA, any person who has received “an overpayment” and fails to report and return it within 60 days of its identification has violated the FCA. This provision is problematic on many levels. One area of concern is when does a provider know that it has received an overpayment? Can a provider identify the overpayment accurately in 60 days? For example, it is not uncommon for a year-end audit to find unidentified revenues on a hospital’s books. The determination of the source of these funds, whether they represent an overpayment, if so from whom and how much must be refunded to each payer (private insurance, Medicare, Medicaid), is a labor intensive, time-consuming process that requires more than 60 days. Another serious change for providers is the ability of the government or a whistleblower to bring a False Claims Act action for a violation of the Anti-Kickback Statute. Under the ACA, any claims for items or services resulting from a violation of the Anti-Kickback Statute will constitute false claims for purposes of the FCA. The ACA also made it easier for a person to initiate a whistleblower action under the FCA, by expanding the pool of individuals who can qualify as an “original source” of the information about the alleged fraud (a prerequisite for bringing a whistleblower suit) and by easing the ban on using publicly disclosed information as the basis for an action.

indefinitely all Medicare and Medicaid reimbursement payments to a healthcare provider “pending an investigation of a credible allegation of fraud.” A “credible allegation of fraud” includes allegations from any source, even an anonymous source. Prior notice of a suspension is not required nor is notice of the reason for the suspension. Providers are not required to be informed of the origin or nature of the allegations of fraud or why they are considered to be credible. Joanne Erde is a partner in the law firm of Duane Morris LLP. She is a board certified healthcare lawyer. She is admitted to practice in both Florida and New York, and is a member of the American Health Lawyers Association and the Health Law Sections of both the Florida Bar and the New York State Bar Association. Harry Silver is special counsel to Duane Morris LLP based in Washington, D.C.

3. Enhanced Administrative Powers The ACA authorizes HHS to impose civil monetary penalties on anyone who “knows of an overpayment” and fails to report and return it. Previously, only those individuals who stood to gain from the overpayment had an obligation to report the overpayment and the government’s only remedy was a criminal prosecution. Under the ACA, it is a violation to simply know of an overpayment. Moreover, the imposition of civil monetary penalties is the result of an administrative proceeding in which the government does not have to meet the higher burden of proof required in a civil or criminal judicial proceeding under the FCA. The ACA also authorizes HHS to suspend SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012





The 2012 legislative session has come to a close, and once again, the session included a lot of focus on issues relating to the judicial branch. This session was different than most in one key way. This year, the legislature was required to complete its constitutionally mandated, once every ten-year exercise of redrawing the state’s Congressional and legislative boundaries. Following the U.S. Census, states must equal out their districts to have equal numbers of residents. This meant the Legislature convened two months earlier than usual, starting in January instead of March. In addition, the state budget faced another billion-dollar shortfall, which led to a session very focused on political and fiscal issues. That being said, the civil justice system had its fair share of battles.

Here are the Highlights: MEDICAL MALPRACTICEÂ There were several proposals to radically change medical malpractice laws and make it harder for injured patients to hold their treating physician accountable. There were



proposals to extend sovereign immunity for emergency room (ER) doctors, which would mean that taxpayers would be on the hook for malpractice claims. The legislature also tried to enact laws that would make it easier for insurance companies to deny critical diagnostic testing, allow insurance companies to dig into medical records without permission, create a patient’s compensation fund that would limit damages and a draconian proposal that would allow doctors to require their patients to sign arbitration agreements before treatment. All were defeated. BAD FAITH Several legislators tried to repeal a law in Florida that makes it illegal for insurance companies to treat their clients in bad faith. Bad faith means not paying insurance money when it is due and owing. Fortunately, this proposal was swiftly defeated. STANDARD OF EVIDENCE There was a full-frontal effort by the pharmaceutical industry to force Florida courts to adopt the Daubert standard of evidence, which allows courts to dismiss claims based on a judge’s finding that the expert’s opinion was not published and subject to formal peer review. This was the number two priority of Florida’s business community. The Senate passed an amended version that was better than the original bill; however, the House did not pass the compromise language. AUTO INSURANCE REFORM First, there was a real effort to repeal Florida’s personal injury protection (PIP) laws, which are fraught with fraud, and move the state to a mandatory bodily injury insurance state, which is the model in 48 other states. This multi-year effort got more traction than ever before, and has a good chance to become law in the coming years. That being said, a major overhaul of auto insurance did pass, which will limit the types of medical providers that can treat auto accident victims under PIP. A proposal that would have limited payments to attorneys who fight insurance companies on behalf of hospitals was defeated.

THE JUDICIARY IN GENERAL The legislature also considered a number of proposals related to the structure of the judicial branch. These included raising the mandatory retirement age for judges, and a more controversial proposal that would give the governor the power to remove members of the Judicial Nominating Commissions. While both of these issues received a lot of attention, neither of them passed the legislature. There will be a proposed constitutional amendment on the 2012 ballot that will seek to enshrine two fairly significant changes to the judiciary. If the amendment passes with 60 percent of the vote in November, the legislature will receive the authority to repeal court rules and will take on the responsibility of ratifying judicial nominations from the governor. PROPERTY INSURANCE The legislature also considered a bill that would have relaxed insurance protections and regulations for potentially thousands of insureds removed from the state-run Citizen’s Property into “surplus lines” policies. Surplus-lines insurance is unregulated as to rates or the forms of the policies. These policies typically have been reserved for rare or extreme risks that standard, admitted carriers won’t cover. The insurance industry would like nothing better

than to keep its antitrust exemption while becoming unregulated. Fortunately, the legislature rejected this bill. All in all, there were more than 400 bills that could have impacted the civil justice system, and virtually none of them passed. It was a good year for those who fight to keep the courthouse doors open for consumers. Now our attention moves to the political process. The Florida Supreme Court has approved new plans to redraw the district maps for the House of Representatives, and is reviewing the Senate map as I write this piece. In the state House, more than 25 percent of the seats will be open, with no incumbent running, and in the Senate, some 30 percent of the chamber is up for grabs. It will be another crazy election year in Florida, and then back to the trenches in 2013 for what will be another busy legislative session for court issues. Gary Farmer is a partner in the law firm of Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. He practices consumer litigation. He is a member of The Florida Bar, the United States Court of Appeals for the Eleventh Circuit, and the U.S. District Court, Southern District of Florida. He is a board member of the Broward County Justice Association and president-elect of the Florida Justice of Association. He is also a member of the American Association for Justice. SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012



Because of previous lax laws and oversight, pain clinics spread through Florida like pythons invading the Everglades. Clinic owners took advantage of the loose restrictions and set up shop all over the state. Doctors ordered and prescribed oxycodone



like candy. While other states closely monitored doctor-shopping and prescription drug distribution, clinics in Florida operated with abandon, leading to the state’s nickname “Oxy Express.” Then, after being embarrassed by national news headlines, Florida changed its tune and headed in the opposite direction. Law enforcement officers throughout the state started rounding up doctors (both good and bad), and prosecutors began charging them with the most extreme of offenses – drug trafficking – which mandate absurdly long sentences.



But, are prosecutors responding to the brutal media attention by overcharging defendants? Is drug trafficking the right charge? Established Florida precedent demonstrates that it is not. A long-recognized legal canon known as the specific/general doctrine provides that a specific statute addressing a specific subject matter controls over a statute generally covering the same or related subject matter. Adams v. Culver, 111 So.2d 665 (Fla. 1959). So, in the pill mill scenario, a specific Florida statute that addresses doctors who issue prescriptions without a medical necessity has control over a state law prohibiting the general possession, sale and/or delivery of trafficking amounts of controlled substances. Accordingly, the state is improperly charging practitioners with violations of the general trafficking statute. Instead, doctors should be charged with violating the law directed specifically at practitioners writing prescriptions in bad faith – an offense that is still a felony, but not as excessive as the trafficking charge. The earlier general law of trafficking was enacted in 1979, long before the danger of prescription drug diversion was brought to the attention of the legislature. That general statute provided then, as it does now, that “[a]ny person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of . . . oxycodone . . . commits a felony” which shall be known as drug trafficking. Fl. Stat. § 893.135 (emphasis added). This statute, of course, applies to all persons generally. In 1979 after the passage of the trafficking statute, the Florida Supreme Court notably stated that “[s]ection 893.13 . . . which defines ‘prohibited acts’ under the controlled substances law, does not explicitly cover the conduct of a medical doctor who issues a prescription for a controlled substance outside the course of his professional practice.” Cilento v. State, 377 So. 2d 663, 665-66 (Fla. 1979). Equally, no other law at the time explicitly covered doctors acting beyond the bounds of their oath. Therefore, a doctor could be convicted then of the general sale or delivery of a controlled substance by writing a prescription in bad faith. This, however, is no longer the case.

In 2002, a specific statute, § 893.13(8) (a), was enacted expressly to address the legislature’s concern regarding physicians enabling prescription drug abuse. It is apparent that the legislature intended that this specific statute dealing with practitioners and prescription drugs should address the growing problem of the overdispensing and unnecessary delivery of prescription medication. The Florida Senate State Analysis for the Bill indicated that enactment of the law would result in the creation of: New offenses . . . that prohibit a prescribing practitioner from: knowingly assisting a patient . . . in obtaining a controlled substance through deceptive, untrue, or fraudulent representations in or related to the practice of the prescribing practitioner’s professional practice; employing a trick or scheme in the practice of the prescribing practitioner’s professional practice to assist a patient . . . in obtaining a controlled substance; knowingly writing a prescription for a controlled substance for a fictitious person; or writing a prescription for a controlled substance for a patient . . . if the sole purpose of writing such prescription is to provide a monetary benefit to, or obtain a monetary benefit for, the prescribing practitioner. As a result of the passage of this new offense, specific subsection 893.13(8)(a) prevails over the general trafficking law. At least one Florida judge has agreed with this reasoning and concluded that the state is overcharging in these cases. Judge Richard Oftedal in the Fifteenth Judicial Circuit recently dismissed multiple trafficking and racketeering charges against a doctor in Palm Beach who practiced at a pain clinic. Judge Oftedal examined the two statutes at issue: the general drug trafficking statute charged by the state and the specific statute proposed by the defense. The judge found that before the enactment of the specific statute, doctors that allegedly dispensed large amounts of controlled substances could be charged with drug trafficking. However, after 2002, the legislature “clearly and explicitly” changed the law. Consequently, the overcharged offense against the doctor had to be dismissed. Following the wisdom of Judge Oftedal, legislative intent, and the specific/general

doctrine, § 893.13(8)(a) is the exclusive means of prosecution for the offense of doctors issuing bad prescriptions in pill mill cases. This is what prosecutors should be charging, instead of overreaching in response to political pressure. Margot Moss is a criminal defense attorney, and partner at the law firm of Markus & Markus PLLC in Miami Florida. Moss is admitted in the state courts of Florida and North Carolina as well as the United States District Courts for the Southern and Middle Districts of Florida. She is an active member of several professional organizations, including the National Association of Criminal Defense Lawyers, the Florida Association of Criminal Defense Lawyers, the Asian-Pacific American Bar Association of South Florida, the Dade County Bar Association, the Federal Bar Association, and the Florida Association for Women Lawyers.







Let’s face it:

Lawyers and accountants get sued because that is where the money is. When a person or company has been economically wronged, invariably the professional has the only available deep pocket. The focus of my lawyering for the last 20-plus years has been suing lawyers and accountants. During this time, I have observed certain actions that reliably result in professionals being sued. Some of these are discussed below. Avoiding such conduct will increase the chances of never meeting me in a courtroom.

The Client From Hell The pressure to land new clients is a fact of life. Ironically, however, the most important client to your practice may be the one you turn away.



Frequently, lawyers and accountants sued for malpractice will say they knew at the outset they should not have taken on the client who sued them. Beware of clients who fired their previous advisor, or who have been turned down by other professionals. Think twice about a client who has more litigation experience than you do, or the one who has nothing good to say about lawyers or the legal system. In the accounting field, audit clients must be carefully vetted before taking on the assignment and the work product thoroughly reviewed. Audit malpractice cases invariably turn on the very standards created by the accounting profession. Strict adherence to those standards is critical. Additionally, audit cases often result from the inexperience of young accountants placed on the audit team, or from the more experienced

member of the audit team who, under time or client pressures, deviates from what should be done. Run from the clients who just don’t feel right. Chances are you have good instincts. Learn to trust them. Despite adequate investigation, problems may develop after you are retained. The client’s expectations may become unreasonable, representations turn out not to be true, or the client does not provide timely responses. If this occurs, the best option is to fire the client in a professionally responsible way.

Use Effective Retention Agreements The existence and scope of the client relationship must be adequately documented. Lawyers and accountants are often sued by people they never thought they represented or by clients they know they represent but on matters they did not think they were engaged to handle. Preparing specific engagement letters can help prevent these suits, or can at least provide strong defenses if you are sued. The engagement letter need say nothing more than this: “Thank you for retaining me to represent you in the lawsuit entitled Smith v. Jones, now (fill in the blank). Although I would be happy to represent you in other matters should the need arise, this current representation will be limited to ….” Moreover, many professionals represent clients on multiple matters. Although it may seem like a hassle at the time, preparing separate engagement letters for each new matter, and avoiding general representations such as “tax advice” or “general business matters” could be your salvation in a malpractice case.

Failing to Provide a Basis for Making a Cost/Benefit Analysis “I didn’t know it would cost that much” are often the first words that a client utters before considering a malpractice suit. So often the professional fees outweigh the economic benefit that can reasonably be expected to be gained by the client. Is the risk of litigation worth the fees necessary? Do clients understand they could lose and be responsible for the opposing party’s fees? Are

the costs of an audited statement warranted? Professionals who get sued often simply do what the client requested without considering whether or not such action is in the client’s best interests or the most costeffective way to achieve the client’s goals. You should act as a counselor, not merely a scrivener. During the course of providing the client with a cost/benefit analysis for achieving certain goals, it is critical to document decisions and actions. Clients often decide that they cannot afford a course of action, such as due-diligence matters or different levels of accounting services. Under these circumstances, it is imperative that the client’s choice be clearly documented in a letter to the client. In a swearing match over whether the client made an informed decision about a particular course of action, the professional will lose. Although documenting strategic decisions is important, not everything noted by the professional should be documented. In litigation, the “e” in “e-mail” refers to “evidence,” not “electronic.” Idle documented chatter, such as negative comments about the client (the dumbest rich guy I have ever met), the time pressures under which the work must be done (I don’t know how we are ever going to get this done in time), the limited likelihood of success (this argument will never fly) or billing issues (we are going to make a lot of money on this matter) can enflame a jury.

important lesson of all. Just imagine this scenario: You get served with a lawsuit, you need to notify your insurance carrier, the local press writes about the suit, and I get to take away a day of your life for a deposition in which I ask beguiling questions with devastating consequences. That possibility should cause any thinking professional to heed the practice pointers set forth in this article. Warren R. Trazenfeld focuses his civil trial practice on suing negligent attorneys and accountants for malpractice. He is a 1980 graduate of the University of Florida School of Law and has a science degree in management, with high distinction, from Babson College. He is rated “AV” by the Martindale-Hubbell Law Directory. He is board certified in legal malpractice by The American Board of Professional Liability Attorneys and is a member of the Million Dollar Advocates Forum. He is admitted to practice in the State of Florida.

Manage your Clients’ Expectations In order to appease the client, the professional will often tell the client what she wants to hear instead of what can actually be achieved. This is a recipe for disaster. Rarely do clients view their issues with objectivity. They need their professional to explain concepts such as the adversarial system, the neutral fact finder, varying interpretations of the law and the tax code, competing policy concerns, inherent delays of litigation, realistic time frames for the delivery of services, controllable and uncontrollable expenses, and unpredictable outcomes. Recognizing that a lawsuit for malpractice could really happen to you may be the most SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012





In nearly

every session of the Florida Legislature, the insurance industry pushes a bill that’s intended to limit or eliminate insurance companies’ duty to protect their policyholders. In 2009, it was HB 1463. In 2011, it was HB 1187. In the latest session, it was HB 427, “Civil Remedies Against Insurers,” which – fortunately for policyholders – died in the Civil Justice Committee of Florida’s House of



Representatives on January 31, 2012. These attacks on the Florida Insurance Code are typically sponsored by a conservative member of the Legislature, which is odd since it’s Florida’s small businesses that need protection the most. Big corporations generally have large self-insured retentions, multiple layers of coverage, and sophisticated brokers and lawyers. Florida’s small businesses, on the

other hand, must put their trust in their insurance companies. The small businesses pay their premiums for liability insurance in return for a promise of protection in case something goes wrong. As part of the deal, the insurance company demands that it, and only it, can make decisions about investigating, defending and settling claims. The insurance industry unilaterally crafts the policy language. Small businesses, like individuals, typically don’t have a say in the policy terms. The Florida Insurance Code is one of the few checks on this imbalanced relationship. Every year, however, the insurance industry asks the Legislature to change the law in ways that would weaken coverage. The Legislature has generally rejected the insurance industry’s attempts to change Florida law on an insurance company’s good faith duties to its insureds, codified in Sections 624.155 and 626.9541(1)(i) of the Florida Statutes. Given the insurance industry’s persistence, and the continued litigation on the issues, the Legislature should consider some revisions to the statutes, but in another direction. One potential revision would be a common-sense way to eliminate some of the litigation on statutory bad faith. The term “bad faith” is used to describe an insurance company’s violation of its duties of good faith or fair dealing. Phrasing it that way may give the impression that some bad intent is required, but it is not. The standard under Florida law is whether an insurance company failed to settle a claim when it could and should have done so. In cases arising under the statute, the claimant is required to file a notice with Florida regulators, giving the insurance company 60 days to investigate and correct the circumstances. Insurance companies often wait until the last day or two to respond to the notice, and at that point they often claim they need clarification or more information from the claimant. The Legislature should consider amending the notice provision to require the insurance company to ask for clarification or additional information within 21 days of receiving the notice. Three weeks is enough time for an insurance adjuster to review the notice and to write back with any concerns. The point of the 60-day cure period is to reduce litigation.

Requiring the insurance company to express its concerns in a timely manner is consistent with that intent. Lawmakers also should consider clarifying what happens if an insurance company makes a mistake when handling a claim. Since 1938, Florida courts have operated on the premise that an insurer must act in good faith toward the insured. The reason is simple: a liability insurer demands complete control over the defense and settlement of claims, and must therefore use “the same degree of diligence as a person of ordinary care and prudence should exercise in the management of his own business.” The insurance company insists that it make the decisions, so Florida law requires that it do so while acting in the best interest of its policyholder. If the insurance company is negligent, if it makes a mistake (for example, the insurance company loses a demand letter, misjudges the extent of liability, fails to appreciate the potential damages) and the result is a judgment against the policyholder, the law places the responsibility for the judgment on the insurance company, not the small business. The insurance industry complains that it should not have to pay for the resulting judgment if it made an unintentional mistake. But who would pay if the insurance company weren’t held accountable for its own mistakes? The policyholder. If the small business can’t afford the judgment, it can be shut down or pushed into bankruptcy. And it doesn’t get back the premiums it paid to the insurance company that was supposed to protect it but failed to do so. The suggested clarification would not change the long-standing premise that the insurance company is responsible only if it had the opportunity to settle (“could have”) and the obligation to settle was clear (“should

have”). The proposed change would make clear that if the insurance company makes a mistake while performing the duties to investigate and settle – duties it contractually demanded that it keep solely for itself and which it was paid to perform – then the insurance company, not the small business, is responsible. If the insurance industry really is on our side and actually keeps us in good hands, as its advertising suggests, then it should have no objection to these suggested changes.

Stephen A. Marino, Jr., is a shareholder at the Miami-based law firm Ver Ploeg & Lumpkin, P.A., which has been representing businesses and individuals in coverage and bad faith disputes with their insurance companies since 1995. SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012




Planning for divorce is tricky business, particularly when the planning takes place at about the same time as planning for a wedding. Yet, this is precisely what marital and family lawyers must do when drafting and negotiating pre-marital agreements. These agreements, also often referred to as “prenuptial” and “ante-nuptial” agreements, present clients and attorneys with more than challenging financial issues. Oftentimes, the emotional overlays take center stage. The successful conclusion of such a transaction depends on the skill and willingness of the



Attorneys who prepare these agreements must remain current as statutory and appellate law continually evolves and the manner in which certain issues are addressed must be adapted and tailored to meet the client’s needs, as well as the requirements imposed by the legislature and appellate courts. The “process” is just as important as the product. It might be surprising to find out that some people actually enter into pre-marital agreements believing that if need be, they can simply find an attorney to set them aside. Understanding the legal theories required to successfully challenge an agreement is the cornerstone to taking those steps that best protect the client from a challenge. Coercion, duress, fraud and failure to properly disclose financial circumstances are among the attacks most often advanced. Speaking of process, the wedding ceremony is not the only ceremony in a growing number of modern-day nuptials. The happy couples’ first ceremony might just be the signing ceremony. For decades, mindful that when money is involved disputes often follow, attorneys have made a record of testators signing their last will. Like will signing “ceremonies,” premarital agreement signing ceremonies are now commonplace. Just like the wedding, they include someone to officiate, witnesses, videographers, and believe it or not, sometimes even the local caterer makes an appearance. The work is not over once a signed agreement is in place. Clients must understand that pre-marital agreements are contracts. These agreements should not be filed away and forgotten. They often include ongoing obligations that might require opening and funding financial accounts, securing life insurance coverage, the preparation of estate plans, the execution of documentation related to qualified retirement accounts as well as other actions. Pre-marital agreements should be reviewed

from time to time, particularly before embarking upon major transactions. Ask anyone if they know the marriage success rate and most will tell you “fifty percent.” This is a statistic that is hard to ignore, and more often than ever before, people are seeking marital planning advice. In today’s world, love and marriage still matter. Nevertheless, the business of marriage requires careful pre-marital planning. It is tricky business, indeed.


attorneys to educate their clients and prepare a legally binding agreement. It also requires a thorough understanding of the dynamics that brings together two people about to share their lives, but not their money. While one might typically believe there are two parties to these agreements, and although this is generally the case, oftentimes the driving force behind the scenes is not those who are about to recite their wedding vows. Wealthy parents, grandparents, business partners, and even grown children can pressure the bride or groom to take action. This dynamic, coupled with the fact that more people are getting married later in life, creates an increased awareness that one can plan for the worst while hoping for the best. When one enters into a marriage, the state makes the “rules” if the marriage fails and ends in divorce. Entitlements under these rules are not always easy to predict. Pre-marital agreements can supplant the state’s involvement in large part and change the rules. They can provide a greater degree of predictability and control. These agreements need not address every issue that might arise, and oftentimes do not. For example, agreements that principally waive marital claims only against business interests are commonplace. Then again, so are agreements that cover multiple issues. These agreements generally contain provisions for post-marriage alimony or perhaps alimony waivers, property distribution and entitlements upon death. The agreements are as varied as the couples who sign them. Agreements involving high net worth clients routinely require the participation of attorneys with specializations in other practice areas such as tax, corporate, and trusts and estates. Family accountants, financial professionals and even therapists can also be instrumental in the successful conclusion of a pre-marital agreement. The most common misconception about pre-marital agreements is that they are “cookie cutter” documents, which should be available at the local bookstore or the legal website de jure...simple right? Like anything worth doing, pre-marital agreements are of little or no value if not properly prepared. Pre-marital agreements are technical documents. Dabbling is not recommended.

Barry M. Wayne is a partner at the law firm of Bluestein and Wayne, P.A. in Coral Gables. He is board certified in marital and family law by The Florida Bar and he currently serves on The Florida Bar Marital and Family Law Certification Committee. He is a member of the Miami-Dade County Bar Association, the American Association for Justice and the American Bar Association. SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012




We asked several of our graduating “Top Up and Comers,” who will be listed as “Top Lawyers” in our 2013 edition, which publishes in December of this year, to tell us about what inspired them to be a lawyer and about one of their interesting cases. Their responses are included in our listing of the “Class of 2012.” BRETT MICHAEL AMRON Complex Commercial Litigation, Bankruptcy Litigation Bast Amron LLP Miami

not understand the system or why he had been targeted. I managed to extricate him from the situation by exposing the debt as unenforceable. His gratitude was the best payment I have ever received.

JOHN R. ANDERSON Insurance Litigation, Insurance Defense Berk, Merchant & Sims, PLC Coral Gables

APRIL L. BOYER Employment, Commercial Litigation K&L Gates LLP Miami

PETER S. BAUMBERGER Professional Liability, Commercial Litigation Kubicki Draper Miami

DAVID A. BUCHSBAUM Labor and Employment Litigation Fisher & Phillips, LLP Fort Lauderdale

MICHAEL V.M. BAXTER Medical Malpractice Billing, Cochran, Lyles, Mauro & Ramsey, P.A. West Palm Beach

STEPHEN F. CAIN Personal Injury, Medical Malpractice Stewart Tilghman Fox Bianchi & Cain, P.A. Miami

ROBBY H. BIRNBAUM Commercial Litigation Greenspoon Marder, P.A. Fort Lauderdale C. WADE BOWDEN Commercial Litigation, Securities Litigation Greenberg Traurig, P.A. West Palm Beach I had two inspirations. The first was my father, who has been a lawyer since 1966. He always told me that with my photographic 48


memory and my stubborn nature, I was born to do what he did. The second is my college constitutional law professor. She taught an undergraduate course that exposed me to the classic U.S. Supreme Court decisions and the Socratic method. I realized that, through the law, I could earn a living while enjoying what I did. There is no better job. While I have handled a great many matters for wealthy and sophisticated individuals, perhaps my most interesting case was a pro bono matter. A Peruvian man who had recently immigrated to the United States and spoke little English was wrongfully sued for a debt he did not incur. He did

JACQUELINE CALDERIN Bankruptcy Ehrenstein Charbonneau Calderin PL Miami NATALIE J. CARLOS Business Litigation Carlton Fields, P.A. Miami REBECCA C. CAVENDISH Complex Commercial Litigation, Employment Gunster, Yoakley & Stewart, P.A. West Palm Beach

NATASHA CORTES Medical Malpractice, Personal Injury (Plaintiff) Grossman Roth, P.A. Fort Lauderdale

DREW M. DILLWORTH Bankruptcy, Commercial Litigation Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. Miami

My inspiration to become a lawyer came from my parents who both worked hard but were never able to attain post-graduate degrees. They both grew up in the projects in New York but were able to take advantage of government scholarship programs offered to poverty-stricken Hispanics who excelled in school to gain entry into Ivy League universities. My mom ended up working in the legal arena, but did not have the opportunity to go to law school so I knew getting my law degree was fulfilling a dream of hers.

JOSHUA W. DOBIN Bankruptcy Meland Russin & Budwick, P.A. Miami BERNARD L. EGOZI Commercial Litigation, Federal Civil Litigation Egozi & Bennett, P.A. Aventura IRIS V. ESCARRA Environmental, Land Use Greenberg Traurig, P.A. Miami ALEX ESPENKOTTER Trusts and Estates Heller Waldman, P.L. Coconut Grove BARBARA J. FERRER Real Estate, Banking Broad and Cassel Miami

My most interesting case here at GR involved a young girl who was undergoing a diagnostic MRI for a head injury. She suffered a compromise of her airway that was not appreciated by the nursing or radiology staff, despite the parents being present and noting a problem. As a result, this young girl suffered a very significant permanent anoxic brain injury, which required aroundthe-clock care. The case settled prior to arbitration for a significant sum of money that ensured that this poor child would get the benefit of the best medical therapies and treatments available to give her the best chance at life. It also gave piece of mind to her parents, because they knew their child would be well take care of even if something happened to them. I find these types of cases bittersweet but most rewarding.

JOSE M. FERRER Litigation, ADR Bilzin Sumberg Baena Price & Axelrod LLP Miami SANDRA M. FERRERA Probate, Real Estate Meland Russin & Budwick, P.A. Miami MARCO FERRI Corporate, International Avila Rodriguez Hernandez Mena & Ferri Coral Gables ERIC G. GABRIELLE Labor and Employment Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. Fort Lauderdale

LAURA GANOZA Commercial Litigation, Intellectual Property Foley & Lardner, LLP Miami My mother inspired me to become a lawyer. When I was little, she would tell me that my love of reading and my incessant talking would make me a great lawyer. I guess I believed her. Actually, I think my mother would have wanted to be a lawyer, if given the opportunity. Unfortunately, she came to this country as a teenager to flee communist Cuba, and was not able to pursue her studies as she had hoped. If she had been able to study law, I think she would have made a great lawyer. In homage to her, I’m inspired to be one as well. The most interesting case I worked on was my first patent case. From a legal perspective, it was interesting because it involved a host of issues, such as the interplay between patent rights and “shop rights,” which are an employer’s rights to inventions developed by employees while on the job. But, the case was more interesting from a personal perspective. On the eve of our two-week jury trial, the CEO of our client sent a letter to the entire team, from the most senior partner to each legal assistant, thanking us for our hard work and dedication, regardless of the outcome. It was the first (and only) time I have ever received such a heartfelt letter of appreciation from a client, before the outcome of a case. And while the case is long over, I still keep a copy of this letter in my office. DAVID A. GREENE Commercial Litigation Fox Rothschild, LLP West Palm Beach SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012




My advice would be to try and establish a specialty. It’s easier to advance if you can master a specific subject or a specific part of the law.”

JASON J. GUARI Personal Injury and Wrongful Death (Plaintiff) Murray & Guari, P.L. West Palm Beach GARY J. GUZZI Insurance, Commercial Litigation Akerman Senterfitt Miami JOHN S. HAGER Criminal, Personal Injury Hager & Schwartz P.A. Hollywood WILLIAM T. HENNESSEY, III Trust and Estate Litigation, Estate Planning Gunster, Yoakley & Stewart, P.A. West Palm Beach

JENNIFER A. KERR Insurance Defense, Insurance Coverage Campbell Law Firm PLLC Coral Gables

– Robert Parks - Law offices of Robert L. Parks, P.L.



PATRICIA M. HERNANDEZ Corporate, Financial Services Avila Rodriguez Hernandez Mena & Ferri Coral Gables KEVIN P. JACOBS Commercial Litigation, Education Herron Jacobs Ortiz, P.A. Miami

– Aaron Podhurst - Podhurst Orsek, P.A.

One of the greatest things you can do throughout your legal career is give back to the community through pro bono service and by supporting legal aid groups. Throughout my 48-year career, I have always had a deep commitment to helping people. I’ve always believed that pro bono service is part of the oath you take as a lawyer. We attorneys must give back to the community and make a contribution for the betterment of everyone.”

made the decision to focus on probate and trust litigation very early in my legal studies. I was fortunate enough to clerk with Gunster, Yoakley, my present firm, as a first-year law student. That summer, my partner, Mike Simon, was assigned as my associate advisor. I was able to tag along with Mike to a number of depositions that summer. Suffice it to say, I learned very quickly that there is never a dull moment in probate and trust ligation. Every family has a unique story. For the last 16 years, I have had the opportunity to help clients work through some of the toughest moments of their lives and serve as a counselor in the truest sense of the word.

JAY KIM Business Litigation Ward Kim Vaughan & Lerner, LLP Fort Lauderdale BRIAN R. KOPELOWITZ Litigation- Real Estate Kopelowitz Ostrow Fort Lauderdale I can say, unequivocally, that I am a lawyer today as a result of the encouragement of my mom and dad. Both always taught and inspired me to pursue excellence. My love for trusts and estates, on the other hand, stems directly from Professor David T. (“D.T.”) Smith at the University of Florida. As many Florida graduates know well, D.T. had a way of making even the most mundane subjects interesting and, more importantly, fun. Probate and trust law was no exception. I learned to love the law in his class. Since that time, I have dedicated my career to studying, lecturing, and practicing in the area of trusts and estates. Interestingly enough, I

HOLLY D. KRULIK Medical Malpractice (Plaintiff) Krupnick Campbell Malone Buser Slama Hancock Liberman & McKee, P.A. Fort Lauderdale SPENCER T. KUVIN Personal Injury, Medical Malpractice Cohen & Kuvin Delray Beach There are many people who have inspired me to become an advocate and counselor, but as with everyone’s life, it all starts at home. Seeing

my mother work so hard, raising two boys on her own, was a strong inspiration for me in helping to fight for those in need. I was also extremely fortunate to have an amazing example of a true lawyers’ lawyer in my father. I am still awestruck at my father’s passion for justice and the law, even after more than 50 years of practice. When building a career in the law, it is not the million dollar verdicts you remember most. The cases you remember forever are those where you are able to affect not only your client, but society as a whole. One of the most memorable cases I had was advocating for the family of a deceased senior who was mentally challenged. He had been ignored by the system and was living in squalor in his home. Through my efforts, I was able to achieve justice for the family, and help to change the law in Florida for all at-risk seniors so that they have greater protections through state agencies. CHAD K. LANG Labor and Employment (Management) Meyer Moser Lang LLP Coral Gables TIFFANI G. LEE Securities Litigation, Commercial Litigation Holland & Knight LLP Miami ROBERT F. LEWIS Alcoholic Beverage GrayRobinson, P.A. Miami My inspiration for becoming a lawyer relates directly to my previous career and experience in law enforcement and more specifically as a special agent with the Florida

Division of Alcoholic Beverages and Tobacco. During my time with the DABT, I frequently dealt with small business owners who had no legal representation and very little understanding of the complexities of Florida’s beverage law. At this time, I also knew that alcohol beverage law was a very new, and fairly under-represented, area of law that promised a well-rounded legal career involving regulatory licensing, land use, transactional and both administrative and civil litigation issues. Therefore, ultimately, I would say my inspiration for becoming a lawyer was a mix of frustration with the lack of community knowledge regarding proper compliance and interpretation of Florida’s beverage law, as well as an opportunity to expand and develop a niche area of law. Today, my group and I are progressively working to develop this unique area of law.

First and foremost, instill in your staff the absolute necessity of maintaining the confidentiality of the client’s legal affairs. Keep your client informed and return telephone calls promptly. One of the major complaints clients have about lawyers is that they failed to keep them informed of the matter. Confirm with the client and opposing counsel – promptly and in writing – your understanding of telephonic agreements so that if there is a dispute as to your recollection of the conversation, the issue can be resolved early on. Get to know and develop a cordial and trusting relationship with the judge’s judicial assistant as well as the members of the clerk’s staff, whether you are a litigator or not. Act reliably and keep your word. Finally, learn to say no and turn down matters that have no real merit.

” “

– James D. Camp Jr. - Camp & Camp, P.A.

My most interesting recent case involved a national effort with an alcohol beverage manufacturer with respect to proper licensing in all U.S. jurisdictions and a variety of complex transactional mergers, acquisitions and even litigation issues. Our group was presented with a variety of legal issues, including regulatory licensing issues, local land use and permitting approval issues, drafting complicated transactional agreements and contracts as well as civil litigation in the United States and abroad. The matter commenced several years ago with civil litigation progressing simultaneously in the United States, specifically Florida, Scotland and the United Kingdom. This aspect of the representation alone presented unique legal challenges and an exciting opportunity.

“To stand out from the crowd you need to distinguish yourself. One way is to create a special area of expertise that people can associate with you. Another way is through non-work activity. I suggest getting involved in one or two professional or civic organizations that you truly enjoy, creating strong relationships with other participants and rising to leadership within the organization. It takes strong bonds for someone to remember you for referrals and casual relationships are not enough. That type of bonding takes time and commitment but will pay off in the end.

– Edith Osman - Carlton Fields, P.A. SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012



H. EUGENE LINDSEY, III International Arbitration Katz Barron Squitero Faust Miami

JODI C. PAGE Personal Injury/Wrongful Death The Killino Firm PC Boca Raton

MATTHEW H. MANDEL Governmental Litigation, Commercial Litigation Weiss Serota Helfman Pastoriza Cole & Boniske, P.L. Fort Lauderdale CARLOS A. MAS Corporate, Securities Carlton Fields, P.A. Miami JANINE K. MCGUIRE General Liability, Medical Malpractice Conrad & Scherer Fort Lauderdale DANIEL A. MILLER Bankruptcy, Commercial Litigation Broad and Cassel West Palm Beach MATTHEW W. MILLER Corporate and Securities Greenberg Traurig, P.A. Fort Lauderdale GRACE M. MORA Labor and Employment Hunton & Williams LLP Miami As long as I can remember, I have always had an interest in law and at a tender age I decided to become a lawyer. But it was my parents who provided the inspiration for me. And they did this by setting the example in their own professions and lives. From a very young age, my parents taught me to work hard, think critically, and be the very best I could be, no matter what I did. I have carried these values throughout my education and career and I am here because of their unswerving support. As a labor and employment attorney, my first inclination is to say ALL the cases I work on are interesting. They are varied and complex, and no two cases are ever alike. What I find particularly challenging 52


FABIAN A. PAL Corporate, International Fowler White Burnett P.A. Miami

are discrimination and harassment cases because they contain unique fact patterns and are emotionally charged. One of the most interesting cases I recently worked on involved claims brought by a male employee against his former employer, an airline carrier in Puerto Rico for disability discrimination, sexual harassment, gender stereotyping, wrongful discharge and a variety of state law claims. It was highly contested and tense. After extensive discovery, which included approximately 12 depositions, the production of thousands of documents and the subpoenaing and review of medical records from more than 25 medical providers, we filed for summary judgment on behalf of the airline carrier on all claims raised by the employee. On the eve of the trial, the court granted our summary judgment motion as to all claims. It was a great victory for our firm and the client. ANTONIO MORIN Litigation Akerman Senterfitt Miami ANDREW M. MOSS Personal Injury/Medical Malpractice (Plaintiff), Insurance Bad Faith Kutner, Rubinoff & Moss, P.A. Miami ELLEN NOVOSELETSKY Commercial Litigation, Insurance Defense Shutts & Bowen LLP Miami BENJAMIN E. OLIVE Commercial Litigation Olive & Associates, P.A. Fort Lauderdale

STEVEN M. PARRISH Labor and Employment Steven M. Parrish, P.A. West Palm Beach RICHARD ANTONIO PEREZ Corporate, Government Holland & Knight LLP Miami CHRISTIAN A. PETERSEN Bankruptcy Gunster, Yoakley & Stewart, P.A. Fort Lauderdale PABLO S. QUESADA Corporate, Securities Sanchez-Medina, Gonzalez, Quesada, Lage, Crespo, Gomez & Machado LLP Coral Gables I can’t point to a particular person or occurrence that led me to the practice of law. I simply knew from an early age that I wanted to be a lawyer – and not the stereotypical trial lawyer, but a corporate lawyer. Early in my career, however, I was fortunate to be mentored by some of the best corporate

lawyers in Florida, taking from each what I considered was his or her unique talent and I was then able to build on those experiences. As a corporate lawyer, you become quite involved in your clients’ businesses, and to excel, you must become part of the team providing leadership and direction. The most rewarding experiences have been those where I have been engaged immediately before a company’s rapid expansion or in a turnaround scenario and then see the fruits of my labor and know I played a key role in the foundation and growth of a successful business. There is a special bond that forms with the members of the management team that extends beyond the typical legal engagement, when you are able to actively participate in the business’s development. MARLENE QUINTANA Labor and Employment GrayRobinson, P.A. Miami ALINA ALONSO RODRIGUEZ Appellate Carlton Fields, P.A. Miami WILLIAM V. ROPPOLO, JR. Litigation Baker & McKenzie LLP Miami STEPHEN F. ROSENTHAL Appellate, Personal Injury (Plaintiff) Podhurst Orseck, P.A. Miami

Looking back at the law school application essays I wrote in 1991, I am reminded that a college seminar on “International Law” turned me toward law school. My term paper analyzed the legitimacy of U.S. claims to extraterritorial jurisdiction over recently captured Panamanian dictator Manuel Noriega. It was my first exposure to wrestling with tough questions of law, and I found the thought process fascinating. More than 20 years later, I still have that enthusiasm for the law. In 2004, I had the good fortune of being asked to serve as lead counsel for the Kerry Presidential Campaign in a case in Tallahassee challenging a minor political party’s nomination of Ralph Nader to appear on the Florida ballot as its candidate for President. Tensions were high with the memories of the 2000 election still fresh, and the case sped at a frenzied pace, going from the filing of the complaint, to a trial in Tallahassee, to arguments in the Florida Supreme Court, all within 17 days! It was an unforgettable and exhilarating experience. JAMES D. SALLAH Securities Litigation, Arbitration Sallah & Cox, LLC Boca Raton LYLE E. SHAPIRO Business Litigation Richman Greer, P.A. Miami MICHAEL A. SILVA Estate Planning and Administration, Tax DLA Piper LLP (US) Miami HEATHER K. STOESSEL Healthcare, Transactional and Regulatory Zumpano, Patricios & Winker, P.A. Coral Gables Prior to becoming an attorney, I was a registered nurse (RN) practicing in a local pediatric emergency department. On several occasions, by virtue of my position, I became involved with dependency issues. The dependency process sparked my interest in the legal field. In that position, I also obtained a heightened awareness of

the relationship between managed care organizations and health care providers, and the impact the relationship has on the health care providers’ ability to provide effective and efficient care to the patients.

The most interesting cases I have worked on have involved uncovering different strategies utilized by various managed care organizations to underpay managed care providers for health care services rendered to members of those managed care organizations. ROBERT C.L. VAUGHAN Litigation, Appellate Ward Kim Vaughan & Lerner, LLP Fort Lauderdale TODD L. WALLEN Product Liability, Commercial Litigation Shook, Hardy & Bacon L.L.P. Miami GREGORY C. WARD Commercial Litigation, Insurance Litigation Ward Kim Vaughan & Lerner, LLP Fort Lauderdale GARTH THOMAS YEARICK Commercial Litigation, Product Liability Carlton Fields, P.A. West Palm Beach SCOTT W. ZAPPOLO Civil, Commercial Litigation Watterson & Zappolo, P.A. Palm Beach Gardens



























THE IRS SAYS “YES…” E very police and lawyer show on television has had the same scene at some point. The grizzled detective or earnest lawyer counseling the suspect in the interrogation room says, “If you just confess, they’ll go easy on you.”

The IRS Seems to Have Missed that Episode. Heavily promoted by the Internal Revenue Service (IRS), the Voluntary Classification Settlement Program (VCSP) and the 2009 Offshore Voluntary Disclosure Program (OVDP) promised taxpayers considerable leniency in exchange for voluntarily disclosing and trying to remediate certain tax problems. Instead, evidence suggests that taxpayers who have stepped forward under these programs have actually been subjected to penalties in excess of those mandated by law. What is causing this phenomenon? An analysis of the penalty structures applicable to the VCSP and the 2009 OVDP indicates that that the IRS is more focused on generating revenue and ultimately dissuading taxpayers from participating in “amnesty” type programs. The VCSP provides employers partial relief from past federal employment tax obligations under the Federal Insurance Contributions Act (FICA) and the Federal Unemployment Tax Act (FUTA) related to workers who are voluntarily reclassified from independent contractors to employees. In exchange for relief from interest and penalties, VCSP participants must pay a penalty equal to 10% of the total tax liability that would have been due had the employer 56


properly withheld tax for his or her workers during the most recent tax year. When announcing the program, the IRS stated that the VCSP’s goal was to increase compliance and reduce the burden for employers. However, the burden imposed upon employers under the VCSP is far more than required by Congress when it enacted Section 530 of the Revenue Act of 1978.

As Discussed by Congress: Section 530 of the Revenue Act of 1978 is a safe harbor for an employer who owes FICA and FUTA taxes resulting from the improper classification of an employee as an independent contractor. Thus, if a worker employee is misclassified as an independent contractor under the common-law analysis, the employer will nonetheless escape employment tax liability if the conditions of section 530 are met. . . . Section 530 should be interpreted liberally in favor of the employer. (Present Law and Background Relating to Worker Classification for Federal Tax Purposes. Page 6. JCX27-07. Joint Committee on Taxation. May 7, 2007)

However, because Section 530 was never codified as part of the Internal Revenue Code, most taxpayers are unaware of its

existence. Thus, by failing to address Section 530 in VCSP materials – such as the VCSP Frequently Asked Questions – the IRS has effectively diverted taxpayers from a more favorable outcome available to them. The IRS employed a similar sleight of hand with the 2009 OVDP. In exchange for a lesser penalty, the 2009 OVDP provided taxpayers with an avenue to voluntarily disclose their offshore financial accounts and/or foreign financial accounts over which they have signature authority. Reportable offshore financial accounts are those that exceed $10,000 at any time during the calendar year. Ordinarily, the civil penalty imposed for willfully failing to report an applicable account on a Form TD F 90-22.1, “Report of Foreign Bank and Financial Accounts,” or “FBAR” can be as high as the greater of $100,000 or 50% of the total balance of the foreign account. However, the penalty applicable to a taxpayer who non-willfully fails to file an FBAR may not exceed $10,000. See 31 U.S.C. § 5321(a)(5). Under the 2009 OVDP, participants are subject to a penalty equal to 20% of their offshore financial account’s highest By Jennifer Correa Riera and Sunny Dhaliwal Fuerst Ittleman, PL 1001 Brickell Bay Drive 32nd Floor Miami, FL 33131 305-350-5690

balance during the period mandated by the IRS unless certain circumstances apply. In March 2011, however, the IRS issued a memorandum to OVDP examiners examining 2009 program participants directing them to stop accepting less than a 20% penalty. The examiners were further instructed to assume that all violations were willful unless proven otherwise. These instructions forced several 2009 OVDP participants who committed non-willful FBAR violations to pay the 20% penalty, which often times exceeded the $10,000 cap under title 31.

As Discussed by the Taxpayer Advocate: With significant FBAR penalties as leverage, the IRS “strongly encouraged” people who failed to file these and similar returns and report income from foreign accounts to participate in the 2009 . . . (OVDP), rather than quietly filing amended returns and paying any taxes due. It warned that taxpayers making “quiet” corrections could be “criminally prosecuted,” while OVDP participants would generally be subject to a 20 percent “offshore” penalty in lieu of various other penalties, including the FBAR penalty.

While the OVDP appeared to be a great deal for those involved in criminal tax evasion, it was a terrible deal for many whose violations were not willful or who would be eligible for reasonable cause exceptions. (Taxpayer Advocate Directive 2011-1,4 August 16, 2011)

Taxpayers considering voluntary compliance programs, such as the VCSP and the 2009 OVDP’s successors should seek advice of counsel and become better informed of the applicable law and available options.



recent years, consulting agreements and royalty (or percentage based structure) payments to physicians from pharmaceutical and medical device manufacturers have become more prevalent in the U.S. medical industry. Generally, physicians are hired as consultants to assist in designing, testing and developing products, technology, and scientific processes. This type of business relationship raises various red flags in light of the Federal Anti-Kickback Statute1, which makes it a criminal offense to knowingly and willfully offer or pay remuneration to induce the referral of federal health care program business. Both medical device manufacturers and physicians must be aware of the potential pitfalls when engaging in these arrangements. These types of arrangements may appear to fit under the “personal services and management contracts” safe harbor exception under the Federal Anti-Kickback Statute. However, specifically, to meet the “personal services and management contracts” safe harbor for various payment and business practices, these arrangements would have to, among other requirements, ensure that the aggregate compensation paid to the agent over

the term of the agreement is set in advance, is consistent with fair market value in arms length transactions and is not determined in a manner that takes into account the volume or value of any referrals or business otherwise generated between the parties.2 Many consulting agreements do not meet this safe harbor because the aggregate payment amounts are not set in advance. While the regulations are clear that “[c]ompliance with a safe harbor is voluntary, however, an arrangement that does not fit in a safe harbor are not necessarily illegal. Rather, they must be evaluated in a case-by-case basis.” 3 Nonetheless, fitting within the safe harbor is a key to reducing risk of violation of the law, especially given the draconian consequences that may ensue from a violation. The main source for guidance is the Department of Health and Human Services Office of the Inspector General (“OIG”). The OIG has indicated that the interaction between device manufacturers and health care professionals “can be especially valuable because physicians play an essential role in the development, testing, and extensive training involved in producing effective and safe medical devices…”4 “Device companies

can legitimately compensate physicians for their actual time and intellectual contributions to product innovations and training in the appropriate use of devices.” 5 However, in testimony before the Senate Special Committee on Aging, Gregory E. Demske, assistant inspector general for legal affairs, specified that “in an environment where physicians routinely receive substantial compensation from medical device companies through stock options, royalty agreements, consulting agreements, research grants, and fellowships, evidence suggests that there is a significant risk that such payments will improperly influence medical decision making.” Demske further testified that industry payments to physicians

By Maria D. Garcia Zumpano Patricios & Winker, P.A. 312 Minorca Ave. Coral Gables, FL 33134 305-444-5565




are sometimes not related to the actual contributions of the physician, but instead serve as kickbacks intended to influence the physician’s medical decision making. “These abusive practices are sometimes disguised as consulting contracts, royalty agreements, or gifts� he said. Moreover, the “companies and physicians who engage in such kickback schemes are subject to criminal, civil, and administrative prosecution.� Specifically, the OIG has warned that the financial relationship between device manufacturers and physicians “merits scrutiny under the anti-fraud statutes because the relationships raise the types of risks that those statutes are designed to address.�6 Whether a particular arrangement infringes on the statute depends on the specific facts and circumstances of the arrangement, as well as the intent of the parties. Although the OIG recognizes the importance and benefit to the medical community found in consulting and royalty arrangements, it is clear that medical device manufacturers must carefully craft these contracts with the provisions of the Federal Anti-Kickback Statute in mind and conservatively seek guidance from the OIG. Finally, the OIG has stated that, in order to mitigate risks inherent in the physician-

industry financial relationship, “the health care industry, medical community, and the government must develop and implement additional approaches to reduce the risks raised by these arrangements,�7 in addition to government enforcement. Therefore, it is imperative that companies monitor recommendations from the OIG to avoid eventual prosecution and/or sanctions imposed by the OIG for impermissible arrangements and payments to physicians. When offering guidance to physicians, the OIG has advised that when considering a consulting agreement with a medical device company, physicians should ask themselves: “(1) Does the company really need my particular expertise or input? (2) Does the amount of money the company is offering seem fair, appropriate, and commercially reasonable for what it is asking me to do?�8 The importance of a fair market value appraisal by a qualified third party, to verify whether in fact compensation is at fair market value for real services to be performed, cannot be over emphasized. Also, beware, if your contribution to a proposed arrangement is your ability to prescribe a drug or use a medical device or refer your patients for particular services or supplies,

the proposed consulting arrangement likely is one you should avoid as it could violate fraud and abuse laws.â€?9 Both medical device manufacturers and physicians should heed this advice since the Federal Anti-Kickback Statute may hold both parties liable for impermissible transactions. ____________________________________ 1 42 U.S.C. § 1320a-7b(b). 2 42 CFR 1001.952 (d)(5). 3

Id. From Testimony by Gregory E. Demske, Assistant Inspector General for Legal Affairs, Department of Health and Human Services, before the Senate Special Committee on Aging on Examining the Relationship Between the Medical Device Industry and Physicians on February 27, 2008.


5 6

Id. Id.


From Testimony by Gregory E. Demske, Assistant Inspector General for Legal Affairs, Department of Health and Human Services, before the Senate Special Committee on Aging on Examining the Relationship Between the Medical Device Industry and Physicians on February 27, 2008.








and children were in forced labor, bonded labor, and forced prostitution around the XPSME QFSDFOU PG UIFTF WJDUJNT XFSF XPNFO BOE HJSMT 5SBÄ‘DLJOH JO 1FSTPOT 3FQPSU 64 %FQBSUNFOU PG 4UBUF



United States were at risk of being sexually exploited for commercial uses – “most of them runaways or thrown-aways,â€? said Ernie Allen, president of the NCMEC. (National Center for Missing & Exploited Children. Human Trafficking Briefing by Ernie Allen. (21 July 2009). To aid these victims and pursue and prosecute the sex traffickers, B.E.S.T.™ – Building Empowerment By Stopping Trafficking, Inc., was established in January 2012. Today, the Miami non-profit organization is changing the world both nationally and internationally. Factors contributing to this exciting success include: r " HSPXJOH HSPVQ PG # & 4 5 – QBSUOFST BOE volunteers who carry out pro bono legal work and certified coaching for the victims. r "O FWJEFODF CBTFE NPEFM UIBU DPPSEJOBUFT the efforts of the judicial system, law enforcement and government institutions. r ĉF VTF PG NPSF UIBO ZFBST PG FNQJSJDBM data to create the working model. A key to B.E.S.T.™ objectives is to protect the victim and the proper chain of evidence. ĉJT XJMM IFMQ UP QVSTVF BOE QSPTFDVUF UIF trafficker while ensuring that information gathered under legal privilege cannot be misused to retraumatize the victim. B.E.S.T.™ strives to connect all the components of the system to jointly fight sex trafficking and is receiving growing support from attorneys, law enforcement, paramedics, emergency room staff, teachers, and other service professions on national and international levels. Hotlines have been established as well as safe houses for victims escaping their situation and seeking safety. B.E.S.T.™ is also rapidly receiving acknowledgement from national and international community leaders including judiciary members, politicians,

prosecutors, law enforcement, the U.S. State Department, the Office of the U.S. Attorney General, U.S. Ambassadors, and some of the nation’s largest law firms. Many of these law firms are placing B.E.S.T.™ into their pro bono portfolio. B.E.S.T.™ has secured commitments for pro bono victim representation from attorneys at Stroock & Stroock & Lavan, LLP; Foley & Lardner, LLP; Baker & McKenzie, and Waserstein, /VOF[ 'PPENBO ĉFTF ėSNT IBWF BMM attended and/or hosted B.E.S.T.™ trainings. Other national and international Law firms are coordinating dates for future events in support of B.E.S.T.™.

B.E.S.T.™ Programs and Activities you Can Become Involved in: The B.E.S.T.™ Introductory Program: Gives an overview of B.E.S.T.™. One has to complete this course before advancing to BOZ PUIFS QSPHSBNT ĉF NBUFSJBM QSPWJEFT tools on how sex trafficking can be identified by criminal justice practitioners, law enforcement leaders, mental health and social worker providers, teachers, school nurses, foster care caseworkers, doctors, and the public at large. The B.E.S.T. LAWS™ - Lawyers Against Women Sold: Provides an understanding to pro bono attorneys on the holistic approach of B.E.S.T.™. Gives them the tools to work with trafficking victims as well as with law enforcement agencies, judges, and certified coaches, all working within the B.E.S.T.™ system. Additionally, to ensure the continuity of efforts, a victims-attorney hotline is available. Training available for firms or individual lawyers. Create a B.E.S.T. LAWS™ team (paralegal, legal secretary, and lawyer).

Accredited Coach Training for victims of sex trafficking worldwide through the B.E.S.T. Academy™: 1SPWJEFT training hours and has been accredited by the Certified Coaches Alliance; Certificate Number: 33012. Recertification classes are required yearly for certified coaches. Acclimatization and Reintegration Method Program: Supplies victims’ advocates serving free of charge throughout the court proceedings and will provide participants with an opportunity for reintegration that was not previously available. Our trained staff will provide coaching, training and counseling for victims to help them overcome the trauma of victimization and prepare them for reintegration into society. A safe house is available for those who are in immediate danger. B.E.S.T. Corporations A.S.A.P.™ (Against Sexual Acts for Profits): A DPSQPSBUF BDDPVOUBCJMJUZ QSPKFDU ĉJT QSPKFDU is designed to get corporations worldwide to partner and pledge together to perform due diligence and compliance programs in avoiding employment or using vendors engaged in the trafficking arena. People Aren’t Products Campaign: Promotes awareness of sex trafficking, a horrific human rights abuse issue that is in our communities in graphic proportions. ĉSPVHI # & 4 5 – 5BML 3BEJP 4IPX Flash Mobs, and marketing materials (e.g. postcards, posters), the B.E.S.T.™ goal is to educate the public. B.E.S.T.™ Stop Trafficking - Your BEST Voice™: B.E.S.T.™ live radio talk show will air, starting June 2012, every Wednesday from 12p-1p live in Florida, reaching globally through the internet and enhancing the B.E.S.T.™ awareness campaigns. Community-Specific Trainings: Provide practical and up-to-date sessions, tailored to relevant community members on how to recognize and aid victims of trafficking in real-time. Trainings will target law enforcement officials, local decision-makers, teachers, parents and other stakeholders. E-LAWS™– Emerging Lawyers program: An approved community service project for university students. Judicial leaders conduct trainings for law students as an introduction to the legal process in SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2012



the area of criminal justice in sex trafficking. These lawyers also take part in B.E.S.T.™ trainings. Upon graduation, they can proceed to train as B.E.S.T. LAWS™. Opportunities for Law Firms & Individual Lawyers - Become a B.E.S.T. LAWS™ firm of B.E.S.T. LAWS team (paralegal, legal secretary, and lawyers);

host a training; support the safe house for B.E.S.T.™ victims (i.e. staff, utilities). This article has been authored by the Board of Directors, B.E.S.T.™ Co-Founder: Linda J. Sullivan, MBA, CPA, LL.M- a Certified Victims of Human Trafficking Coach; also Founder and Principal of L J Sullivan Certified Public Accountant, LLC, PCAOB. Co-Founder: Angela C. Vigil, Baker & McKenzie

LLP’s Director of Pro Bono and Community Service for North America. Director: Marsha G. Madorsky, Shareholder at Carlton Fields. Treasurer/Director: Etty Foodman, Vice-President and CFO of Foodman CPAs & Advisors. Director: Liza Shurik, A Grants Management Consultant at Booz Allen Hamilton. For more information:




or litigation professionals, 2012 has already proved to be a year of heightened activity. Not only are we seeing a spike in lawsuit filings, but we are also entering one of the most hyper-vigilant regulatory climates we have seen in decades. This coupled with a reining in of corporate spending means that the next six to 12 months could be one of our most challenging periods yet. According to the annual Fulbright & Jaworski’s Litigation Trends Survey, 92 percent of U.S. companies predict that litigation will either rise or remain the same over the next 12 months. Of those, one-third of the companies expect a rise in legal disputes. Stricter regulation and company growth topped the reasons cited for the anticipated increase in litigation, as opposed to last year’s survey, when worry over economic conditions was cited as the anticipated cause for increased disputes. Concern over stricter regulations has not been without cause. Government regulators have tightened their belts across the board, with particular focus on stronger SEC guidelines in the wake of the financial meltdown. For example, the Volcker Rule, which takes effect in July, will restrict U.S. banks from making certain kinds of 60


speculative investments that do not benefit their customers. JP Morgan Chase’s recent $2 billion trading loss has also had a chilling effect on securities regulations. With the Obama administration using this loss to advocate for further financial reform, securities litigation will likely remain a threat for companies and investors alike. Not only can we anticipate more litigation, but we can expect a longer and more drawn out process. Technological advancements mean that even the smallest cases now require the use of e-discovery, bringing more complexity and added costs to litigation. Last year, 42 states cut judicial funding, according to the National Center for State Courts. With fewer resources and more filings, the result can become a vicious cycle: a delay in getting a case to trial, a higher chance of continuance, and an increase in costs at a time when clients lack an appetite for spending. Since the boom period when litigation spending reached an all-time high, there has been an effort to tighten litigation budgets, with corporations demanding greater accountability and transparent pricing from their outside counsels. In 2012, corporate clients in particular will take greater control than ever before over spending decisions,

diverting certain tasks in-house and mandating the use of various time-keeping services by the firms they have retained. This confluence of factors is creating a “perfect storm.” Clients are tightening budgets at a time when the material costs for electronic e-discovery are only going up. Therefore, lawsuits must include careful advance planning in order to manage the effects of e-discovery, reduce certain of the expenses associated with it, and consider alternatives for billing when appropriate. Such alternatives may include flat charges with bonuses, contingent fees in whole or in part, or services for specific fees rather than having open-ended expenses. Most importantly, it is critical to prepare for an ongoing attorney/client dialogue regarding expenses, fees and ways to achieve more value for the services rendered.

By Andrew H. Hall Managing Partner Hall, Lamb and Hall, P.A. 2665 S. Bayshore Dr., PH 1 Miami, FL 33133 305-374-5030








Steven D. Berlin focuses on domestic and international tax, forensic accounting and litigation support services. He has worked in both public and private accounting for more than 30 years, with clients in a wide range of industries including finance, law (economic crime and family law), retail and real estate. Berlin also assists international clients with voluntary disclosure matters. He has served as an expert witness with the U.S. Attorney’s Office in the Southern District of Florida in matters involving money laundering, bank fraud and Medicare fraud. He has also been a presenter at a conference of assistant U.S. attorneys in the area of financial statement analysis. Prior to his work at Foodman, he was vice president and co-founder of Insight LLC., an entrepreneurship and financial literacy training company for young adults. He also taught business at a local preparatory school, and maintains an interest in education and financial literacy.

Terrence G. Biddulph, senior vice president of corporate banking/ business development for Sabadell United Bank, has more than 35 years of banking experience. He has devoted his career to serving the banking needs of the professional and legal communities as a bank liaison for attorneys, law firms, bar associations and the judiciary. Biddulph was born in Cleveland, Ohio, and attended Cleveland State University graduating from Spencerian College with a bachelor of science degree in business administration followed by a tour of duty in the U.S. Coast Guard. He represents Sabadell United Bank as a member of several civic, professional and nonprofit/charitable organizations. As a result of his dedication to the legal community, Biddulph has been recognized and honored by various lawyer bar associations and is the recipient of various special awards, i.e. The Lawyers Banker, Friend of Lawyers, Lifetime Achievement, Outstanding Service, Legal Aid Pro Bono/Put Something Back and Distinguished Service Award from the Dade County Bar Association. His professional and personal philosophy of one-on-one personal service is shared by Sabadell United Bank.







Stanley Foodman, CEO of Foodman, CPAs & Advisors, is a recognized forensic accountant and litigation support practitioner, specializing in complex domestic and international tax matters and economic crime. He is bilingual (English/Spanish) and provides hands-on expert assistance to clients on matters including corporate and personal taxation, compliance, voluntary disclosure, estate and trust tax and wealth planning. He has served as an expert witness and forensic accountant for some of the nation’s most high-profile economic crime cases. Foodman is a former auxiliary special agent for the Florida Department of Law Enforcement with specialization in economic crime – money laundering, bank fraud, public corruption and discovery of hidden assets. He is also a former consultant to the Miami office of the U.S. Attorney for civil RICO money laundering recoveries. Foodman received the 2010 Key Partners Award from the South Florida Business Journal. A frequent speaker on tax matters, he has also been named one of the “Top CPAs in South Florida” by South Florida Legal Guide every year from 2007-2012.

Joel N. Goren is vice president and business development officer for Sabadell United Bank. Goren works closely with attorneys and their firms practicing law in South Florida. He has published articles concerning proper IOTA account utilization as well as presented on the financial and business aspects of the legal practice to such groups as the Dade County Bar Association, its Young Lawyers Section and the Bankruptcy Bar Association. Goren received his bachelor of science degree in telecommunications, with a minor in economics, from the University of Florida. He received his master of business administration (MBA), with academic honors, from Nova Southeastern University. He currently sits on the Board of Directors for Foster Care Review and also recently completed a voluntary commitment for a Florida Bar Grievance Committee.










Adam S. Hall handles matters involving complex corporate and business litigation. In addition to commercial litigation, Hall focuses his practice on cases involving professional malpractice, securities, real estate, and probate disputes. Recognized for his relentless advocacy on behalf of clients, he has litigated cases involving broker-dealer disputes, will contests, breach of fiduciary relationships, construction disputes, and allegations of malpractice on the part of law firms and accounting firms. Beyond his legal work, Hall is actively involved in the South Florida community. Most recently, he served on the board of directors for the United Way of Miami-Dade County and has been a member of the executive committee for the United Way’s Young Leader division Hall also maintains strong ties to the University of Florida, where he earned his law and bachelor’s degrees with honors. He is currently a member of the University’s Levin College of Law Alumni Council and serves on the alumni advisory board for Florida Blue Key, of which he was previously a member.



Alex Hernandez is a vice president for Sabadell United Bank, whose responsibilities include overseeing business development in the Miami-Dade market. As a Miami native, he knows his success lies in assisting business leaders, entrepreneurs and other professionals achieve their financial goals. Prior to his tenure at Sabadell, Hernandez gained valuable experience while working for Barnett Banks, and holding positions such as private client senior officer at Bank of America and VP of wealth management at Regions. His self-motivated “can do” attitude later brought him to SunTrust Banks, N.A. to assist in establishing the Music Private Banking Group, which managed high-profile song writers, producers and entertainers within the music Industry. Hernandez also serves on the board of the South Florida Association of Financial Professionals and the executive board of the Boy Scouts of America South Florida Council as VP of special events. He is a founding member of the YMCA young professional’s board, and FIU Pino School of Business Family Forum Board.



Attorney Andrew C. Hall has tried cases arising from some of the nation’s most significant historical events. From the Watergate trials and the Ohio savings and loan crisis, to the 2000 terrorist attack on the USS Cole, Hall’s trial skills are recognized as among the top echelon of litigators in the nation. Most recently, he secured a $2.8 billion judgment on behalf of a Cuban expatriate for damages stemming from the continued terror attacks launched against his family by the Cuban government. He has been recognized as one of “The Best Lawyers in America” by Best Lawyers for the past 10 years. Additionally, he is regularly featured in Super Lawyers and Florida Trend’s Legal Elite as among the top commercial litigators in the State. He has been recognized as a “Most Effective Lawyer” by the Daily Business Review for the past three years. He is AV rated by Martindale Hubbell, the highest independent peer-based rating available to an individual lawyer.


Andrew S. Ittleman is a founder and partner of Fuerst Ittleman. He oversees the firm’s work in white collar criminal defense, anti-money laundering law and compliance, and litigates extensively against the federal government. With a strong background in criminal law and appellate practice, Ittleman brings his clients a depth and breadth of knowledge across many functional areas. He has led the firm’s representation of clients in a variety of criminal and investigatory proceedings including federal criminal forfeiture proceedings, complex commercial litigation, and litigation with the FDA. Ittleman has presented seminars to the public and clients on a range of topics from building an anti-money laundering program to the regulation of physicians’ stem cell practice by the FDA. He is member of the National Association of Criminal Defense Lawyers, the National Money Transmitters Association, and is a Certified Anti Money Laundering Specialist.




Adam J. Lamb is a partner at Hall, Lamb and Hall whose practice is focused on commercial litigation including shareholder and partnership disputes, landlord/tenant issues, intellectual property litigation, legal malpractice, and real estate litigation. Lamb has been recognized by a number of publications, including the South Florida Legal Guide, and has received the highest AV peer review rating by Martindale Hubbell. An active member of the legal community, he is a member of the American Bar Association, the Miami-Dade County Bar Association, the American Association for Justice, and the Greater Miami Chamber of Commerce. Lamb received his bachelor’s degree from the University of Pennsylvania and his juris doctorate from the University of Florida. He is a member of The Florida Bar and is admitted to the U.S. District Court, Southern District of Florida. Additionally, he has litigated various Federal and state cases under pro hac vice status in New York, New Jersey, Michigan, and the District of Columbia.



Jeffrey Levinson, senior vice president of business development for Sabadell United Bank has over 25 years of banking experience and specializes in providing financing solutions to professionals, manufacturers and entrepreneurs. He received his bachelor of arts degree in economics from the University of Illinois and his master of business administration (MBA) in strategic management and international business from the University of Miami. Levinson represents Sabadell United Bank in various community activities. He is currently the treasurer of Junior Achievement of Greater Miami where he has taught more than a thousand Miami-Dade students “How to Open a Business.” In addition, he has been the treasurer of the Michael Ann Russell J.C.C. for the past ten years. Levinson is currently the vice chairman of the Aventura Marketing Council where he is the chair of the Aventura Young Professionals group. Levinson is a past board member of Kiwanis of Biscayne Bay, Hillel Community Day School and the Aventura Chamber of Commerce. Levinson is a former nationally ranked racquetball player.





Leon N. Patricios leads the litigation practice at Zumpano Patricios & Winker, P.A. He focuses on healthcare-related litigation, including managed care contract disputes, complex commercial cases, and employment related litigation. Patricios also has experience in ad valorem tax and family matters. His peers have elected him to the list of “Top Lawyers in South Florida” as published in the South Florida Legal Guide. Patricios is admitted to practice in Florida before all of its state courts. He is also admitted to practice in the U.S. District Courts for the Southern and Middle Districts of Florida as well as the U.S. Court of Appeals for the Eleventh Circuit. In addition to appearing in court, Patricios has represented clients before the Equal Employment Opportunity Commission, the Department of Labor, the Division of Unemployment Compensation and other agencies. Patricios earned his B.B.A, M.S.T. and J.D. from the University of Miami.


Pierre A. Saliba provides international and domestic tax, forensic accounting, litigation support and advisory services to clients in a broad range of industries including healthcare (Medicare and Medicaid fraud and regulatory compliance), manufacturing and not-for-profit organizations. He assists clients with domestic and international corporate and personal taxation services, due diligence and evidence retrieval. He also works with clients on voluntary disclosure matters. As firm manager, Saliba also leads Foodman’s focus on client service. He brings prior experience as a cost accountant, controller and production manager in the garment industry, both in the U.S. and internationally. Fluent in French, Creole and Spanish, he serves as president of the Haitian American Chamber of Commerce. Saliba is also an active member of other Miami civic and charitable organizations, devoting both time and resources to helping those in need.






David Winker is board certiďŹ ed as a specialist in health law by The Florida Bar and focuses his practice on domestic and international health care transactions and regulatory compliance issues. Winker has counseled providers in connection with overpayment reviews, program suspensions and federal and state criminal, civil and administrative investigations, and assisted providers with contracting, corporate structuring, real estate and estate planning issues. In addition, Winker has provided counseling on licensure matters and regulatory and legislative initiatives affecting Medicare and Medicaid providers and suppliers (including coverage and reimbursement issues). Winker’s peers have elected him to the list of the top lawyers in South Florida as published in the South Florida Legal Guide (2003-2012), to the Legal Elite as published by Florida Trend Magazine (2006 – 2010) and to Super Lawyer’s magazine. He has received Martindale Hubbell’s highest rating-AV. Winker earned a degree in political science at Florida State University and a J.D. from the University of Florida.


As president and managing shareholder, Joseph I. Zumpano has overseen the growth of the ďŹ rm as it has expanded to 60 members with locations in 15 countries. He focuses his practice on complex healthcare law and international law matters. Zumpano’s accomplishments, widely covered by the media, include his pioneering the business theory of “New Globalismâ€? and the historic case Weininger v. Castro, in which ZP&W obtained a $86.5 million judgment against the Castro brothers and the Army of Cuba. Zumpano assembled the legal team in the effort that resulted in the collection of $24 million on the judgment. More recently, Zumpano led his team to pierce a Bahamian Trust in the case Breitenstine v. Breitenstine et. al. After a seven-year battle to recover the funds therein, the court ordered the turnover of approximately $4 million in assets. Zumpano earned a BA from Harvard University and a dual degree in law and public health from Georgetown University and Johns Hopkins University.

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IRUPRGHUQWLPHV FRP IRUPRGHUQWLPHV FRP “For over three decades, ^ĂďĂĚĞůů and its financial service professionals have been offering specialized products for law firms in South Florida. We recognize the financial necessities of each law firm and their lawyers are unique. Our expertise, products and services are tailored to meet the distinct needs of the firm, partners and p associates. I invite you to call me to find out how we can develop a plan for you, your firm and your employees.” ǁŝŐŚƚ ,ŝůů Executive Vice President COMMERCIAL BANKING | INTERNATIONAL BANKING | PRIVATE BANKING | WEALTH MANAGEMENT SABADELL FINANCIAL CENTER | 1111 BRICKELL AVENUE | MIAMI | (305) 808 2223 SabadellSM is a service mark of Banco

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