Florida Law Commentary

Taxable Costs: From Ridiculous to Court Reporter Fees for ALL Depositions

February 8th, 2010

After a verdict, the battle over taxable costs can be a vicious and cruel additional hit. The case of The Landmark Winter Park, LLC v. Thomas and Gail Colman reflects the potential brutal nature of post verdict claims for costs.

By way of background, the Florida Supreme Court’s current statement on taxable costs come from In Re Amendments to Uniform Guidelines for Taxation of Costs.

In Landmark of Winter Park, the court denied the following costs as “overhead”: postage, envelopes, copying, online research, fax charges, overtime for paralegals, after-hours heat and AC, mileage, meals, and long distance charges.

Permitted were costs such as court reporter fee for all depositions (not just those used at trial) and charges for photocopies of trial exhibits.

Posted in Trial | No Comments »

“The facts of this case are enough to make any legal ethics professor cringe.”

February 1st, 2010

So says the Second DCA on Friday in William H. Winters v. Richard Mulholland v. Marc E. Yonker (Villanti, Casanueva, and Fulmer).

A 15-year associate plotted his move from a law firm to solo practice and reportedly (1) removed and copied at least one client filed, (2) kept client files with him and returned the files with some documents missing, and (3) knew of his girlfriend and former paralegal “hacking into the firm’s system to obscure client contact information.

The case went to trial and resulted in a $1.47 million judgment based upon a civil theft claim. The appellate court acknowledged that the plaintiff law firm had successfully proven civil theft — but not causation. In short, the copying of the file; the holding of the files; the missing documents; and the hacking were never proven to proximately cause the loss of the clients.

UPDATED || The Florida Bar reports that all of these lawyers above possess active Florida law licenses.

Posted in Legal Ethics | No Comments »

Does Your Company Need a Lawyer to Handle Social Media, Twitter and Facebook?

January 29th, 2010

At least one company, Clorox, is looking for a full time, in house lawyer to clean up their social media policies and presence. Is that necessary?

A marketing person (or even an astute college student) could likely develop and monitor Twitter feeds and a Facebook fan page. But is that enough?

Developing a social media policy and handling questions about “new” issues (tech, advertising, responses to comments) is a task probably for a lawyer.

For businesses looking to enter the Social Networking sphere, I would recommend a Twitter feed, Facebook fan page, and an announcement on their own webpage (media release is optional). I would further recommend setting up an automatic Google search for your business name appearing on the Internet as well as routine searches/monitoring of Twitter and Facebook. Finally, you need a clear social media policy.

This is actually a fairly good task for a lawyer and paralegal working with the client. The client could develop the content and have the law firm handle the updating and monitoring. With a cost-effective paralegal on the front line with some concise supervision by counsel, this would be cost effective. Moreover, it would ensure (a) the corporation has a social media policy, (b) the posts and entries are appropriate and not patently violating policy or laws, and (c) major social networking sites are monitored for defamation, copyright, unfair competition and other issues.

Depending upon the frequency of the posting/monitoring, this likely could be accomplished for a few hundred dollars a month. A lot of PR firms could run up that tab in a week. In good hands, this could be transitioned back to the company full time after 6-12 months.

Meanwhile, follow Clorox on Twitter to see how they are doing. Some basic good advice on cleaning up your Twitter service is here. Email if you have comments, experiences or questions about lawyers providing social media services. I’m interested to see who else out there is providing that service.

Posted in Defamation, Law News, Legal Tech | No Comments »

11th Circuit Suggests “Bitch” and “Whore” May Create Hostile Work Environment

January 26th, 2010

If you like court opinions which repeatedly quote bad words — and sometimes define them — then consider Ingrid Reeves v. C.H. Robinson Worldwide, Inc. from the Eleventh Circuit. mad

On the other hand, if offensive words… well, offend you, then stop reading here. If our federal court can brave their use and memorialize them in the F.3d, we’ll include them on this vaporous little blog. Using the visceral terms provokes thought as to whether words alone can create a hostile environment while phrases like “gender specific derogatory comments” or words like “scatological” tend to dull the mind.

The court held that evidence of gender-specific derogatory comments made about women on account of their gender (e.g., bitch, whore and variations thereof) could create an actionable hostile work environment under Title VII.

On the other hand, “general, indescriminate vulgarities” (e.g., fucking [noun], asshole, and, “the intensely offensive ‘Jesus fucking Christ’”) apparently do not trigger the gender-related protections of Title VII. We question whether that last one might trigger a claim on the basis of religion.

The critical mass of the case was that the gender-specific derogatory comments do NOT have to be directed at the plaintiff. Simply, where the environment existed and, upon receiving complaints, management did not respond, there was a jury question whether that satisfied the “intent” element of a hostile work environment.

Two factual aspects are worth noting:

One, contrary to what one might expect, the Plaintiff was a former merchant marine and “no stranger to the course language endemic to the transportation industry.”

Two, part of the hostile environment was the fact that employees played a raunchy morning radio program in the office. It is interesting that what is permissible under FCC standards (presuming it is terrestrial and not satellite radio) could create an actionable hostile work environment…

Thanks to Law.com for their twitter post and article, “Sex Specific Profanity Could Win Discrimination Case.”

Posted in Employment | No Comments »

“Blogging for Lawyers” at Palm Beach Bar Association

January 25th, 2010

We recently offered a lunch-time seminar for lawyers interested in learning about blogging at the Palm Beach Bar Association. This was one in a series of lawyer-technology seminars, much like our prior Tweet Meet and Eat.

Thanks to Matt Kakuk of Webmanagement.us who jumped in with some technical help on issues relating to Google Analytics, Adsense, and Google Local.

If you couldn’t make it, the Palm Beach Bar Bulletin article is here and the powerpoint is here.

Posted in Legal Tech, Palm Beach Legal News | No Comments »

A Frustrating Attempt to Find Current Lawyer Web Advertising Rules in Florida

January 17th, 2010

Confused by what you can put on your law firm website, blog, Facebook or Twitter? Who isn’t. Here’s a primer… to the extent we could find the most current information. If you are looking to develop a new advertisement or simply confirm your website is in compliance… good luck trying to find the rules.

As a starting place, the Florida Supreme Court is working off of proposals which began BEFORE TWITTER EVEN EXISTED.

* The good news is that there is a Florida Bar Standing Committee on Advertising. Further good news is that they offer a “handbook on advertising” which is available on the web. Too bad the link is broken.

* But we jest. In part. The Bar has a page regarding website advertising, including the handbook, here.

* By the way, if you want to find out information about the Bar’s Standing Committee on Advertising, do a Google search for it. Yes, you’ll get results like that, where the first page of hits includes a site from… 1996.

* What does NOT readily come up in a Google search for “Florida Bar Standing Committee on Advertising” is this page, with the committee member names, which you can find by meandering and aimlessly drilling down on links in the Bar website. The page provides nothing on the Committee’s recent activity. I was unable to find more current information (can you?).

* The Standing Committee on Advertising has an (undated) set of Guidelines for An Attorney’s Statement of Qualifications and Experience.

* November 19, 2009: Florida Supreme Court issues In Re: Amendments to the Rules Regulating the Florida Bar - Rule 4-7.6, Computer Accessed Communications. This allows lawyers to create an “upon request” section for solicited communications by potential clients to lawyers, which would then exempt the lawyer’s communication advertisement from Rule 4-7.2. Effective date was January 1, 2010.

* The Bar petitioned an extension to the January 1, 2010 date. In this January 1 Bar News Article, there’s no indication of the status of the request for an extension (nor is there a clear indicator in the January 15 article, below).

* After this ruling, in mid-December 2009, the Board of Governors determined that the Bar will not review attorney websites, even if voluntarily submitted but will answer calls from lawyers asking specific questions.

* On December 29, the Florida Bar’s Standing Committee on Advertising issued guidelines to help lawyers meet the new rules. Good thing the Florida Bar News’ January 15, 2010 article, “Panel Offers Guidance to Bring Lawyers’ Web Sites into Compliance” is available online with excerpts from those guidelines, since doing a Google search for the guidelines will get you nowhere. The article is here.

* The front page of the Florida Bar site does not provide patent guidance. The “Rules Update” page is confusing… but here it is.

* Were you thinking about joining the Standing Committee to see if you could change things? The instructions on how to apply are here. Were you able to find the link to the form? (hint: hidden in the upper right corner)

If I am off the mark and missing some readily-apparent resources, someone please clue me in.

Posted in Legal Ethics, Legal Tech | No Comments »

Florida Paralegal Association & Internet Social Networking

January 14th, 2010

Thank you to the Paralegal Association of Florida - Boca Raton Chapter for the very kind invitation to speak about “Social Networking Websites for Fun and Research” at their January 14, 2010 meeting.

This presentation grew out of the Spring 2009 article, “Internet Social Networking Sites for Lawyers,” which was one of the first published articles to discuss using Facebook, Twitter, and others for law firm marketing as well as jury selection. That article was published in the Trial Advocate Quarterly; it also is available under “Articles” on the right column of this website.

Since that article, there have been a number of developments including the fact that Facebook reset its community’s privacy settings to “Everyone.” This creates greater potential researching options for lawyers and paralegals — as well as greater need for individuals to pay attention to their privacy settings.

The powerpoint for the presentation can be found under “Materials” along the right column at www.FloridaLawCommentary.com (scroll down).

At the meeting we discussed steps to secure your own privacy rights — for further discussion, take a look at this article, “8 Steps to Regain Control of Facebook Privacy.”

Posted in Legal Tech | No Comments »

CA Federal Court Finds Bit Torrent Search Engines Violate Copyright Laws

January 5th, 2010

Several major motion picture production companies scored a new victory in their fight against Internet piracy by obtaining a summary judgment order finding a “bit torrent” search engine operator liable for copyright violation by end users.

The nearly 50-page order reflects the one-side nature of this legal “battle” and references a number of case citations indicative of the string of successes that major music and movie studios have won in the last decade.

The copyright holders hired forensic computer and statistics experts from major universities across the nation to submit affidavits which essentially tutor the court with explanations of how “file sharing” works on the Internet, down to nitty-gritty distinctions between vari0us peer-to-peer protocols.

The Defendant managed to summon at least one expert however it appears he had to concede all of the relevant incriminating principles. Meanwhile, the Defendants’ use of file descriptions (”Top 20 Movies”), accolades for frequent users, and interviews where the operator admits knowledge and purpose of the torrent sites, make this “battle” fairly easy to win for the copyright holders.

The case is Columbia Pictures v. Gary Fung. WIRED Magazine provides an interesting write-up here. The site still exists, for the moment, here.

Posted in Legal Tech | No Comments »

First District Rules on Production of Incident Reports in Nursing Home Case

December 23rd, 2009

The First District handed down a decision confirming that production of nursing home incident reports was appropriate when the plaintiff met the two-prong test to overcome the work product privilege. Oddly enough, there was no discussion of the application of the nursing home-specific incident report production standards set forth in Florida Statute Chapter 400. The case is Paradise Pines Health Care Associates d/b/a Harts Harbor Health Care v. Estate of Bettye Jean Benekin (Hawkes, Kahn, Clark).

We are provided few details of the underlying claim or the information sought. If we’re interpreting the decision correctly, the resident suffered from dementia and died — thus, the plaintiff and counsel could not obtain information — presumably about accident(s) or condition(s) — from the resident. The incident reports in question therefore appear to specifically involve or relate to the parties; this does not appear to be a situation where a nursing home plaintiff is seeking production of incident reports for other residents.

Also worth noting, the opinion reported that names of employees and other witnesses were only available on the incident reports. The Panel informs us that there was “no serious argument has been made that the incident reports at issue do not contain relevant information that the [plaintiff] need.” Under Rule 1.280(b)(3), the court then held that the only issue was the second prong: undue hardship.

In interpreting that second step, the split panel concluded, “ [t]o determine whether a moving party will experience undue hardship, courts must balance the moving party’s burden in obtaining information with the non-moving party’s burden of production. Here the trial court determined the [plaintiff] had no realistic way to independently procure the information and the [defendant] had the incident reports at their immediate disposal.”

Under this analysis, once a defendant essentially forfeits the first prong of the privilege, the remaining analysis is a battle-of-hardship, where, if the defendant actually has the documents, their “hardship” in handing over incident reports is likely marginal at best.

Some deeper case-specific analysis may be warranted but it seems that the defendant may have been able to avoid this dispute by simply identifying personnel who were present/witnessed the events in question. The plaintiff would then depose those individuals but the actual incident report(s) would remain privileged. Shielding the identity of the only witnesses behind a privilege seems like a scenario where a court might reasonably conclude that the requesting party has no other recourse but to obtain the privileged documentation.

If the analysis in the opinion holds, the plaintiff might still be entitled to the incident reports even if they receive the names of witnesses since taking depositions of witnesses is likely more of a “hardship” than receiving an incident report (as the court put it, “[the trial judge] determined the burden faced by the [plaintiff] was unduly difficult in comparison to the ease with which the defendant could produce the reports.”).

Posted in Legal Ethics, Long Term Care (Nursing Home ALF) | No Comments »

Google Scholar’s Legal Search and Fast Flip

December 18th, 2009

The ABA Journal Daily alerted us to “Google Offers Legal Research for Average Citizen… and Lawyers Too” so we had to take Google Scholar out for a test drive. Along the way, we also stumbled across another Google product, Fast Flip. Both are free.

Apparently Google wants to dip a toe into the legal research world by adding a “legal opinions and journals” radio button to Google Scholar search. In our unscientific testing, Scholar did not find a recent Fourth DCA case which was issued that same day. A “regular” Google search, however, pulled the case right up. Depending on when you read this, test it out using that same case. Email when that case makes it to Scholar.

Testing slightly older cases, we searched for a relatively new case, Perez v. Life Care Centers, and obtained no results in Scholar but, again, “regular” Google pulled the case right up. Even a few cases we tested which date back a few months fail to appear in Scholar but pop right up in Google.

Searches by case names and attorney names seems to work fairly well, although not necessarily in chronological order. There is even an attempt to reference whether the case has been cited (a rough version of Westlaw’s KeyCite or, for we old-timers, “Shepardizing”). Like anyone with a Google search bar and a few moments on his hands, I searched my own name and it dutifully pulled up some appellate decisions but no journal articles.

A good start for a Google Lab project. We like it.

Also of interest is the current events reader, Fast Flip, which needs little explanation. Watch the media, they’ll likely pick it up soon as the new internet toy…

Posted in Legal Tech | No Comments »

JEAC Enters Ethics Fray Over Judges and Facebook… But Florida Wasn’t the First

December 16th, 2009

As has been recently well-hyped, there are certain restrictions on Florida judge’s use of social networks. It apparently took awhile for everyone to notice a November 17 Judicial Ethics Advisory Committee report but once the New York Times got a hold of it nearly a month later on December 10, the Florida media kicked it into gear with front page coverage the next day in the Daily Business Review (and other publications). But South Carolina had quietly already jumped into the fray.

While we were expecting some evidence of Internet fear and misunderstanding, both panels appear to have a reasonable grasp on both the zeitgeist of the new media and the purpose of arcane legal rules.

According to Florida JEAC, judges are not supposed to openly “select” and identify friends since the concern is that this creates the appearance that the “friend” sits in a special position. A minority on the panel apparently felt that the word “friend” has been bent so far (from noun to verb to… nothing) that the implication isn’t there. However, consider a situation where you are first appearing before a judge only to learn that your jurist is a (published) Facebook friend of your opponent. Depending upon how heated your case gets, the ugly implication will roost somewhere in your mind. Or your client’s.

Anyone can be a “fan” of a judge’s page since that does not involve the jurist making a selection. Again, as the committee wrote, “to the extent that such ["friending"] identification is available for another person to view, the committee concludes that this practice would violate [judicial rules].”

If it sounds a bit heavy-handed, judges knew going into their situation that they would suffer some unusual social burdens and restrictions, as warned under Canon 5a. Likely, there are far more sticky situations than Facebook.

But, judges can be friends with non-lawyers and lawyers who do not appear before them. Additionally, judges can be associated with lawyers in other Internet groups, as long as the judge is not selecting/de-selecting the public association.

The South Carolina Judicial Department likewise has some opinions. In their October 2009 opinion, which received virtually no press until after the Florida story broke, judges may be members of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position.

How did Florida and South Carolina beat everyone to the punch on these techno-legal issue? One would expect New York or California on the cusp of this one.

Posted in Legal Ethics, Legal Tech | No Comments »

Avert Your Eyes! Another Proposal for Settlement Fails in Florida

December 14th, 2009

The Fourth District shot down yet another Proposal for Settlement due to faulty application. While alternative dispute methods are favored in theory, enforcing arbitration (based upon contract between the parties before suit) or Proposal of Settlement (based upon vehicle during suit) is difficult to achieve.

In Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Property Owners Association, Inc. (Kaplan, Polen, and Cikin), the court addressed a case where the complaint brought two counts for injunctive relief and one count for damages. Can a party use a Proposal for Settlement in such situations?

Yes, but not to resolve the entire case, only the damages count. Per Florida Statute 768.79, Proposals only apply to civil actions for damages. In a case which is a hybrid damages/injunction case, a general offer applying to the entire [hybrid] case is not binding.

Here, the court pointed out the strict construction analysis which plagues applies to Proposals for Settlement as well as the fact that acceptance in this case may not have ended litigation.

Posted in Proposals for Settlement | No Comments »

Can You Sue Individual Board Members of Your Condominium or Homeowner Association in Florida?

December 9th, 2009

Yes but it is unlikely you will win, particularly in the Fourth District Court of Appeal.

Back in 2006, a rather dramatic homeowner versus association battle was partially resolved in Berg v. Briddle Path Homeowners Association where the court addressed director and officer statutory immunity under the homeowner statute, Florida Statute Chapter 617.

The same issue arose, but was confronted more directly, in the recent case of Stephen and Marjorie Raphael v. Beach Point Condominium Association (Stevenson, Polen, and Gerber). In this case, the condo owners were upset that balcony dividers were replaced with transparent dividers, thus reducing their privacy while allegedly improving other condo owners’ view.

To sue the condo board members directly, the plaintiff had to allege that there was fraud, criminal activity or self-dealing in order to overcome the directors’ statutory immunity in Florida Statute 607.831(1) and 617.0834(1).

The Panel held that there was no self-dealing or personal benefit simply because the board members voted for and approved alternations or improvements to the common areas which they, as owners, also enjoyed.

Posted in Florida Statutes, Real Estate | No Comments »

Attorney Can Be Witness and Lawyer for One Party — Without Disqualification

December 3rd, 2009

Several times a year we see Florida cases where one party seeks to disqualify the other side’s counsel. Whether this strategy works, or is worth the hassle, remains to be seen. It certainly does bring litigation to a grinding halt.

The Second District recently cleared some of the air surrounding circumstances when a lawyer can represent one party even though counsel may have to take the stand. We turn to the facts of Alto Construction Company, Inc. v. Flagler Construction Equipment, LLC (Wallace, Fulmer and Northcutt).

Attorney Lorraine Jahn represents the defendant Alto both in this construction-related breach of contract case BUT she also was on retainer for Flagler and had previously had communications with Flagler employees about the dispute which blew up into this lawsuit (offhand, we wonder how that retainer relationship might be going these days…). Once suit kicked up and she appeared for Alto, Flagler sought to disqualify her as a material witness and potential co-defendant.

At an evidentiary hearing, various arguments were raised and, inter alia, the trial court affirmed that the lawyer had not violated any ethical obligations. That said, the trial court acknowledged that she may be a material witness due to her involvement in the issues prior to suit. For that reason, the trial court entered an order disqualifying her.

On appeal, the Panel noted that the Rules Regulating the Florida Bar do not mandate an attorney’s automatic disqualification when he or she is called to testify. See R. Regulating Fla. Bar. 4-3.7(a), “a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client.” Here, an Alto representative filed an affidavit that they did not intend to call her. Case law indicates that a lawyer would be disqualified if called by the opposing party and if the lawyer’s testimony will be sufficiently adverse to the factual assertions or accounts offered on behalf of the client.” In short, the general rule appears to be that (1) your own client can’t call you to the stand as a necessary witness or “central figure” and (2) you can’t testify contrary to your opening/closing.

Posted in Legal Ethics | No Comments »

Mickey Mouse Sues Donald Duck in Southern District of Florida

November 22nd, 2009

No sure who was Mickey Mousing around to write or find these pleadings, but somewhere on PACER exists a lawsuit where Mickey is suing Donald for trademark violation. Last time we checked, though, Walt Disney World was in the Middle District.

Anyhow, it is probably not the silliest Disney suit we’ve seen.

Legal Pad had the scoop (don’t let the real Disney folks see your post image!) and ABA Journal Mobile picked it up as well.

Posted in Law News | No Comments »

FloridaLawCommentary.com

Following Trends in Florida Law

Taxable Costs: From Ridiculous to Court Reporter Fees for ALL Depositions

“The facts of this case are enough to make any legal ethics professor cringe.”

Does Your Company Need a Lawyer to Handle Social Media, Twitter and Facebook?

11th Circuit Suggests “Bitch” and “Whore” May Create Hostile Work Environment

“Blogging for Lawyers” at Palm Beach Bar Association

A Frustrating Attempt to Find Current Lawyer Web Advertising Rules in Florida

Florida Paralegal Association & Internet Social Networking

CA Federal Court Finds Bit Torrent Search Engines Violate Copyright Laws

First District Rules on Production of Incident Reports in Nursing Home Case

Google Scholar’s Legal Search and Fast Flip

JEAC Enters Ethics Fray Over Judges and Facebook… But Florida Wasn’t the First

Avert Your Eyes! Another Proposal for Settlement Fails in Florida

Can You Sue Individual Board Members of Your Condominium or Homeowner Association in Florida?

Attorney Can Be Witness and Lawyer for One Party — Without Disqualification

Mickey Mouse Sues Donald Duck in Southern District of Florida

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