I am pleased to report that, effective Wednesday, June 16, I will be moving my law practice to Akerman Senterfitt LLP.  Both of Butzel Long’s Florida offices are being merged/absorbed into Akerman, the largest law firm in Florida (with 500+ lawyers nationwide).

You can check out the firm at www.akerman.com

My new contact information:

Christopher B. Hopkins

Akerman Senterfitt

222 Lakeview Avenue, Suite 400

West Palm Beach, Florida 33401

Direct: 561-671-3668

Cell: 561-635-3397

Fax: 561-659-6313

Email: christopher.hopkins@akerman.com

The next logical question for judicial social networking policies has arrived: does this apply to the JA?

Yes, at least in part.  A judicial assistant can friend lawyers who appear before the court.  However, the limitations may devour the rule here.  The JA cannot post anything which makes “reference to the judge or the judge’s office…”  and the posts must be “outside of the judicial assistant’s responsibilities and independent of the judge…”  Given the frequency that people use Facebook at work (including listing where they work in their profile) and the amount of time we all spend at the office, those prohibitions seem fairly high.

JEAC Opinion 2010-04 goes on to note that any lawyer who attempts ex parte communication with the JA via social networking sites should have their head examined and should be de-friended and reported to the judge.

In Walter Weisenberg v. Costa Crociere (Cope, Shepherd and Suarez), the forum selection clause read:

For cruises which depart from, return to, or make any
port call at a United States port, Passenger further agrees
that any suit against CARRIER shall be filed exclusively
in the United States District Court for the Southern
District of Florida located in Broward County, Florida,
and that any such suit shall be based exclusively upon the
admiralty jurisdiction of the United States District Court.

In short, it must be in federal court in Ft. Lauderdale and federal jurisdiction is conferred by admiralty law. The Plaintiff claimed that this was not sufficient notice of the need to file in federal court and that there would not be a jury. A prior case from last year, Leslie v. Carnival Cruise, involved a slightly different clause which did not require admiralty jurisdiction.

Question of GPI presented is:

IS A FORUM SELECTION CLAUSE ENFORCEABLE
IN CIRCUMSTANCES WHERE ITS EFFECT IS
THAT PASSENGERS WAIVE THE RIGHT TO A
JURY TRIAL BUT THE CLAUSE DOES NOT
EXPRESSLY SO STATE?

Facebook is good for lawyers in the sense that accessible information about witnesses, opponents, and experts may be easy to find due to Facebook’s privacy settings.  On the flip side, like everyone else, lawyers want their own information nailed down.

The article, Facebook Privacy Settings, was published in the June 2010 Palm Beach Bar Association’s Bar Bulletin (also on the right column of the screen, under Articles).  Hope it helps.

In Dany Gilbert v. Eckerd Corporation of Florida, Inc., the Fourth District (Bowman, Farmer, and Hazouri) considered a personal injury case where the Plaintiff claimed lost wages in excess of $420k premised, in part, on a brief two month stint at a concrete company.  During discovery, however, the Plaintiff’s husband and several representatives of the company denied she worked there.  The Plaintiff, in turn, produced two checks and her tax returns.  In response, a representative of the company indicated that the money was for the Plaintiff’s husband and that the payment was for her to run through her business — not because she was an employee.

The Panel held that there was “no rule, statute or case” requiring an evidentiary hearing but that it was a “better practice” so the trial court could make specific findings.

In Ruby Hair v. Richard Morton, the Third District (Ramirez, Gersten, and Lagoa) held that inconsistencies, non-disclosures, and even falseness were better addressed in cross-examination and discovery sanctions than dismissal for fraud — and likewise determined that an evidentiary hearing was needed.

BOTH cases reversed the order of dismissal and noted (a) a motion to dismiss for fraud requires clear and convincing evidence, (b) dismissal for fraud is an “extreme” sanction, (c) proof required (clearly and convincingly) is that a party sentiently set in motion an unconscionable scheme calculated to interfere with justice, and (d) it must go to the core issues.

The Fourth DCA’s opinion suggested the standard of review is a “narrowed” abuse of discretion standard; the Third DCA indicated that, in the first place, trial courts should be granting these sparingly and cautiously.

Special thanks to the Palm Beach Bar Association and co-author, Diana Martin, for running “Lawyer’s Guide to Foursquare & Yelp” in the May 2010 PBCBA Bar Bulletin.

For that article, you can follow the link or hit “2010 Foursquare & Yelp” under Articles on the right column.

The article was an idea which sprang from this prior February 2010 post, Foursquare & Yelp May Be New Research and Marketing Tools.  We emphasized the “marketing” part in a March post, Foursquare as a Promotional Tool for Law Business.

In Florida Farm Bureau Casualty Insurance Co. v. Willis and Katherine Mathis (First DCA: Van Nortwick, Lewis and Rowe), Hurricane Ivan in 2004 caused damage to the Mathis’ home.  Flood water rose over four feet.  The Mathis family had flood and wind policies.  The flood carrier paid limits.  The windstorm carrier declined to give policy limits.  A suit and trial ensued with a jury finding a constructive or actual total loss warranting policy limits.  The carrier appealed, claiming they were entitled to set off the flood payment.

There is potentially a lot in this case for insurance coverage lawyers.  The bottom line, however, is that the First DCA held that the policies were separate and that the Florida Valued Policy Law (Florida Statute 627.702(1)) did not require set offs.  Thus, the Mathis were to receive $250k (flood) and $295k (wind) on their two story house which had an estimated value between $400-500,000.  Thus, and pardon the pun a homeowner can collect under two separate policies even if there is a “windfall.”

For attendees, or just those interested, the powerpoint linked under “Materials” on the right hand column.

According to Opinion 742, New York adopted Rule 1.2 which allows “limited scope representation.”  Their Rule looks similar, if not identical, to Florida’s Rule of Professional Conduct 4-1.2.  The ABA had some nice coverage as well.

The Opinion states that lawyers can play a “limited role” with informed (written) consent of the client without disclosing the involvement to the court or opposing party except if there is a rule, order or failure to do so constitutes misrepresentation (or triggers another ethical rule).  Even so, “disclosure” need not include the lawyer’s identity.

Need quick access to the Florida ethics rules?  Consider this.

The case of Venezia Lakes Homeowners Association, Inc. v. Precious Homes at Twin Lakes Property Owners Assoc. (Third DCA: Suarez, Logoa, and Salter) reverses a trial court and remands with instructions to grant summary judgment on the grounds that a pure bill cannot be used to determine if a lawsuit exists.

In this case, two adjacent homeowners’ associations share expenses on one of two lakes.  Under the contract, Precious pays Venezia 30% of the expenses for one lake.  Typically, they get an approved budget with a single category, “lake budget,” which they believe may include expenses for both lakes — thus they may be overpaying.  When Precious asked for the service contracts which support the budget entry, they were refused.  They filed a pure bill of discovery to get those service contracts.

The Panel held that the pure bill of discovery’s “usefulness [has] diminished greatly” and quotes a swath of cases from the various intermediate appellate courts.  If there is no other remedy, it can be used to identify potential defendants, theories of liability, and information to meet conditions precedent to file suit.  But, in very vague terms, it “cannot be used as a fishing expedition to see if a case exists.”

Here, the court ruled that the pure bill does “not lie to see if a cause of action exists nor… [to determine] the extent of damages.”  Herein, the court suggested that alternative remedies were available including a declaratory judgment or breach of contract claim.