The Florida Bar Journal 2002-01: Vol 76 Iss 1

77 Pages·4.9 MB·English

FLORIDA
VOLUME LXXVI, NO. 1, JANUARY 2002
BARJOLRNAL
ADVANCING THE COMPETENCE AND PUBLIC RESPONSIBILITY OF LAWYERS
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JANUARY 2002 VOLUME LXXVI, NO. 1
BARJOLRNAL Features
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Account Executive Letters 4
Randy Traynor “As I See It”: A Frequently Asked Question 8
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2 THE FLORIDA BAR JOURNAL/JANUARY 2002
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Letters
Exculpatory Clauses the rule, however, it seems unfair
President
Defeat Justice that either an appellant or appellee
Terry Russell
The publication of a primer on how before the Florida Supreme Court be
President-elect
to escape liability for culpable con¬ required to address before the court
Tod Aronovitz
duct (“The Great Escape—How to arguments of counsel, the briefs of
Executive Director Draft Exculpatory Clauses That the opposition, and potentially am¬
John F. Harkness, Jr. Limit or Extinguish Liability,” No¬ icus briefs, and then be faced with
Board of Governors vember 2001) is strikingly at odds an additional argument published
with The Florida Bar’s purpose of by the official arm of The Florida
First Circuit Alan B. Bookman; Second Circuit
Kelly Overstreet Johnson, Michael J. Glazer; service to the public and the admin¬ Bar, The Florida Bar Journal.
Third Circuit Michael S. Smith; Fourth Circuit istration of justice. In most cases, I do not know whether appellate
Christine R. Milton, Henry M. Coxe III; Fifth especially in consumer contracts and judges would feel any obligation to
Circuit William H. Phelan, Jr.; Sixth Circuit
Louis Kwall, John A. Yanchunis; Seventh Cir¬ recreational settings, exculpatory resist even reading such an article,
cuit Charles C. Ebbets; Eighth Circuit Robert clauses are imposed, not bargained and I feel sure that appellate judges
A. Rush; Ninth Circuit Kirk N, Kirkconnell,
Russell W. Divine, John Marshall Kest; Tenth for. They defeat, not further, justice. would endeavor not to be influenced
Circuit Robert M. Brush; Elevet^h Circuit Fran¬ Beyond thwarting justice, the by such an article. Were I the oppo¬
cisco R. Angones, David B. Rothman, Ervin growing use of exculpatory clauses sition, however, I could not help but
A. Gonzalez, Jennifer R. Coberly, Don L.
Horn, Sharon L. Longer, David W. Bianchi, has invidious implications for soci¬ be concerned about the effect of such
Andrew Needle, Steven E. Chaykin, Arthur ety. By shielding wrongdoers from a publication, particularly if I had
H. Rice; Twelth Circuit Anthony J. Abate; Thir¬ being held accountable for their ac¬ what I felt were strong arguments
teenth CiRcun William Kalish, John F. Rudy II,
Richard A. Gilbert; Fourteenth Circuit Rob tions, exculpatory clauses encourage based on the law or the facts which
Blue, Jr.; Fifteenth Circuit John G. White III, laxness, bad policies, irresponsible might give a different slant on the
Jerald S. Beer, Michael T. Kranz; Sixteenth Cir¬
cuit James S. Lupino; Seventeenth Circuit behavior, and worse. issues than that presented in the
Michele Kane Cummings, David D. Welch, All Americans live in a safer article. I would be frustrated that I
Henry Latimer, Jesse H. Diner, Frank C.
world because of the deterrent ef¬ would have no practical way in which
Walker II; Eighteenth Circuit Clifton A.
McClelland, Jr.; Nineteenth Circuit Louis B. fect of tort law. By preventing those to file an “article in opposition.”
Vocelle, Jr.; Twentieth Circuit John P. Cardillo; laws from having their intended ef¬ It seems to me that the policy of
Out-of-State Richard A. Tanner, Ian M.
Comisky, Dennis M. Whalen, Brian D. fects, exculpatory clauses promote The Florida Bar should exclude any
Burgoon; President YLD Elizabeth G. Rice; a less safe world. possibility that there would be those
President-elect YLD Juliet M. Roulhac; Public The Florida Bar should not lend who feel that The Florida Bar Jour¬
Members, Royce B. Walden, Vivian L. Hobbs.
itself to serving as an enabler of nal is being used to influence the
Editorial Board ways to escape the law and justice. outcome of pending litigation. The
Chair: Gary S. Gaffney, Davie; Vice Chair: Larry S. Stewart Florida Bar Journal should limit its
Robert H. Sturgess, Jacksonville; Members: Miami activities to criticizing the final re¬
Kelly M. Braun, Tampa; Dean Bunch, Talla¬
sult rather than being seen as at¬
hassee; David R. Cassetty, Coral Gables; Su¬ Reflecting the Current
san G. Chopin, West Palm Beach; Christine tempting to influence that result.
C. Daly, Lake Wales; Judge Lisa Davidson, Status of Litigation Bill W.agner
Viera; Ralph A. DeMeo, Tallahassee; Judge
Sandra Edwards-Stephens, Ocala; Heather I am strongly in favor of the posi¬ Tampa
Jo Encinosa, Tallahassee; Richard E. Fee, tion taken by the authors in the ar¬
Tampa; Cleveland Ferguson III. Ft. Lauder¬ ticle, “Recovery of Mental Distress Editorial Board & Editor’s note:
dale; Nancy S. Freeman, Winter Park; Judge
Thomas G. Freeman, Jr, Sanford; Evelyn D. Damages in Bad Faith Claims in The article was submitted in
Golden, Atlanta, GA Peart Goldman, Ft. Lau¬ Florida” (November 2001). April, and on May 14, the Supreme
derdale; Robyn S. Hankins, Ft. Lauderdale;
Having said that, I really oppose Court dismissed the petition for re¬
Keith C. Haymes, Coral Gables; Timothy M.
Hughes, Orlando; Valerie G. Itkoff, Miami; The Florida Bar Journal publishing view in the Otero case without fur¬
Marlyne Marzi Kaplan, Hollywood; Judith articles taking a position recom¬ ther opinion. Unfortunately, the No¬
R. Koch. Chapel Hill. NC; Jeffrey D.
Kottkamp, Ft. Myers; Benedict R Kuehne, mending either affirmation or rever¬ vember article does not clearly
Miami; Brendan M. Lee, Tampa; Steven sal of a matter pending before the reflect the fact that the Florida Su¬
B. Lesser, Ft. Lauderdale; David K. Miller, Florida Supreme Court (or for that preme Court refused to review the
Tallahassee; Peter Papagianakis, New
York, NY; John R. Reid, Jr, Maitland; Kelley matter, before any Florida appellate case long before this article was ac¬
S. Roark, Miami; Amy D, Ronner, Opa court), it seems that at least poten¬ tually published. In their consider¬
Locka; Luis Salazar, Miami; Lawrence D.
Silverman, Miami; Rafael Suarez-Rivas, Hol¬ tially Rule 4-3.5(a) or Rule 4-3.5(b) ation of submissions, the editorial
lywood; Howard A, Tescher, Ft. Lauder¬ would caution against such publica¬ board and staff hope for a mutual
dale; Frances H. Toomey, Tampa; R. Craig tion. In some cases it might be ar¬ understanding with contributing
Waters, Tallahassee; Gary D. Weinfeld,
Miami; John O. Williams, Tallahassee; Board gued that Rule 4-3.6(a) would apply. authors to ensure that the Journal
Laison: Dennis M. Whalen, Akron, OH. Regardless of your judgment on always reflects the most current sta-
4 THE FLORIDA BAR JOURNAL/JANUARY 2002
mpire
1 800 432-3028
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Each Corporate Kit features: Checklist. Instructions«Work Sheets. 8 Tab Dividers ♦ 21 Certificates • Stock Transfer Ledger. Corporate Seal with Pouch. Padded Binder. Slip Box . Waiver
of Notice and Minutes of Annual Meeting of Shareholders . Waiver of Notice and Minutes of Annual Meeting of Directors. Minutes of Special Shareholders’ Meeting Notice of Annual
Meeting of Shareholders. Notice of Organizational Meeting of Incorporators and Directors. Waiver of Notice of Organizational Meetingof Directors. Waiver of Notice of Organizational
Meeting of Incorporators. Directors (s)’ Resignation. Notice of Special Meeting of Shareholders . Notice of Special Meeting of Directors. Resolution Granting Power of Attorney. Special
Power of Attorney . Proxy . Independent Contractor Agreement. Buy-Sell Agreement. Employment Agreement. Banking Resolution Cafeteria Plan. Cafeteria Plan Employee Benefit
Election . Medical Expense Plan . Death Benefit Plan . Voting Trust. Stock Subscription . Executed Stock Subscription . Stock Purchases . Written Statement Organizing Corporation
S Corporation, formerly Subchapter S. Section 248 Election. Consent of Incorporators to Election of Initial Directors Election of Directors. Election of Officers . Waiver of Shareholders
Financial Reporting. Corporate Indemnification Plan. Application for Sales and Use Tax . Application for Employer ID Number. Pre-Printed Envelopes for Both Applications . Election
by Small Business Corporation (Form 25‘'3). State Unemployment Status Report.
tus of any issues discussed or cases tion awarded to the property owner. Competency cuts both ways. Most
cited. We regret the fact that this An expert retained by the prop¬ experts comply with the appraisal
article did not specifically address the erty owner and/or the attorney pur¬ standards and maintain their inde¬
final result of the Otero litigation. suant to a Ch. 73 proceeding under¬ pendence regardless of the party
stands from the outset that there they represent. Unfortunately, the
More on Contingency will be payment for the services ren¬ government is normally represented
Fee Arrangements dered. Most experts recognize the by the expert who has submitted the
In his article (“Contingent Fees for reimbursement of attorney and ex¬ “lowest bid.” It is common knowl¬
Expert Witnesses in Eminent Do¬ pert fees are subject to the theory edge that a low bid generates litiga¬
main—Competency or Credibility?” and purpose of the Constitution, tion, and, therefore, entitles the con¬
October 2001), Henry M. Brown sug¬ which expects that the property demning authority’s expert to
gests that experts, and in particu¬ owner is entitled to full compensa¬ additional per hour fees when re¬
lar, appraisers, who testify in an tion; therefore, a jury award to a quired to support the low appraisal
eminent domain proceeding brought property owner should not be dimin¬ in court. The fact that a private prop¬
pursuant to F.S. §73, do so on a con¬ ished by the amount of the expert or erty owner’s appraiser doesn’t “bid”
tingency fee arrangement. In a Ch. attorney fees. The experts, knowing for his services does not render his
73 eminent domain proceeding there that they will be paid a reasonable expectation to be paid a contingency
is a statutory scheme whereby the fee for their services, as opposed to arrangement. If you question com¬
property owner’s attorneys’ fees are a contingency, understand that the petency or credibility, the expert who
paid and, in most cases, notwith¬ court will play a major role in es¬ is paid a reasonable fee as assessed
standing the amount of compensa- tablishing the amount of fees to be by the court is far more competent
I--- paid to the expert or attorney. and credible than the expert who
Oath of Admission to
Mr. Brown, ignoring Florida’s bids on the job and will be paid for
The Florida Bar
statutory scheme for the recovery of extra work without court scrutiny.
I !■
Ij The general principles which attorney and expert fees, alludes to There is no support for the asser¬
should ever control the lawyer in out-of-state medical malpractice tion that Ch. 73 allows contingency
the practice of the legal profession
cases for which there is no statutory fees nor that ethical codes or public
are clearly set forth in the following
oath of admission to the Bar, which basis for the recovery of attorney or policy are violated by Ch. 73 expert
the lawyer is sworn on admission to expert fees. His argument that fees fee proceeding. Credibility is simply
obey and for the willful violation to
guaranteed by statute are somehow recognized as an honest, supported,
which disbarment may be had.
"I do solemnly swear: equated to a true contingent fee unbiased opinion. The article does
"I will support the Constitution of cause of action misses the point. not disclose that the opinions found
the United States and the Consti¬ A contingency fee simply means in Dupree v. Malpractice Research,
tution of the State of Florida; |
that the attorney or expert will not Inc., 445 NW 2d 498, involved a
“I will maintain the respect due to |
courts of justice and judicial officers; j be paid unless there is a recovery. medical malpractice action for which
“I will not counsel or maintain Under Ch. 73, both the attorney and there was no statutory scheme ad¬
any suit or proceedings which shall the expert will be paid, subject to dressing attorney or expert fees.
appear to me to be unjust, nor any
the court’s scrutiny of the reason¬ Dupree is inapplicable to Ch. 73.
defense except such as I believe
to be honestly debatable under ableness of their services. Clearly, Dupree was specifically rejected in
the law of the land; as the author points out, there are Ojeba V. Sharp Cabrillo Hospital, 10
“I will employ for the purpose of
courts who have found that fees can Cal. Rptr. 2d 230, which advances
maintaining the causes confided
to me such means only as are con¬ be unreasonable and accordingly the argument that contingent fee
sistent with truth and honor, and have awarded less than the fee re¬ consulting contracts are not auto¬
will never seek to mislead the judge quested. Such a procedure protects matically violative of public policy.
or jury by any artifice or false state- |
the property owner, as well as the It should be noted that the offer of
ment of fact or law; j
“I will maintain the confidence condemning authority, by assuring judgment statute was a creature of
and preserve inviolate the secrets that fees and costs are reasonable. the Tort Reform and Insurance Act
of my clients, and will accept no
It should not be up to a property of 1986. Eminent domain proceed¬
compensation in connection with
I their business except from them or owner to argue with the experts as ings where damages are assessed
with their knowledge and approval; to the reasonableness of their fee. based on testimony presented by
“I will abstain from all offensive That is the very purpose of the statu¬ experts following the appraisal stan¬
personality and advance no fact
tory scheme established by the leg¬ dards and guidelines are not akin to
prejudicial to the honor or reputa¬
tion of a party or witness, unless re¬ islature. Fortunately, under the damages that may be suggested in
quired by the justice of the cause statutory scheme, the court can con¬ a tort action. The utilization of the
with which I am charged; sider the reasonableness of the con¬ offer of judment statute in an emi¬
“I will never reject, from any con¬
demning authority’s acts and con¬ nent domain proceeding intimates
sideration personal to myself, the
cause of the defenseless or op¬ duct during litigation which a property owner into a settlement.
pressed, or delay anyone's cause necessitated the fees charged by the
for lucre or malice, So help me God." property owner’s experts. Letters continued on page 34
6 THE FLORIDA BAR JOURNAL/JANUARY 2002
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President’s Page
“As I See It”
A Frequently Asked Question
S
o what is it like?” I recognize and handle special projects assigned
the question immediately by the president—all without reim¬
now. Sometimes the question bursement of expenses or for their
is even briefer—“Well?” time ... and without complaint. They
Former presidents like to ask it that are eager servants of our profession,
way... with a knowing glance. Sim¬ and we are fortunate to have their
ply stated, you have to experience it leadership.
to really understand it. I can sum¬ I remember when the board was a
marize the experience with two hotbed of aspirants to the presidency.
words, “more” and “less.” Board members maneuvered for
More challenging. More exciting. years in advance for a chance at the
More exhausting. More demanding. office. I fear that day has passed. Our
More important. More of everything best and brightest still serve on the
than I ever expected from my obser¬ board, and many are well qualified
vations of Bar presidents for the past to serve as your president, but I have
20 years. And less . . . less ceremo¬ watched with sadness and concern as
nial; less to delegate to the staff, as one qualified lawyer after another
able as the staff is. Less able to tol¬ drops out of the “hunt.” Let’s face it:
erate other than a full-time commit¬ A contested race for the presidency
ment of time, energy, and talent. f ullest of their abilities. They have can cost more than $150,000 and
There was a day when conven¬ had the support of great law firms, of committed service as president-elect
tional wisdom held that The Florida wonderful spouses and families, and and then as president displaces pro
Bar could survive a year or two with the advice and help of other dedicated tern any meaningful law practice.
a part-time president without back¬ Bar leaders. Unfortunately, I sense We have studied this issue in the
sliding. I’m not sure that really ever now an undercurrent of change, of less past. We’ve shortened the campaign
was the case, but I’m very sure that commitment to the office—perhaps period to three months. We’ve offered
it isn’t the case now. because the practice of law has be¬ free ads in The Florida Bar News.
Think about it. Your Florida Bar come more business-oriented, and Numerous campaign rules and regu¬
president is the chief executive of¬ maybe because the task of campaign¬ lations have been proposed and many
ficer of the third largest professional ing for the presidency, and then the adopted, all intended to make the
state organization in the United even more daunting task of holding process fairer and more attractive.
States with a $30 million budget, the office, has simply become too Amazingly, nothing has materially
over 300 employees, and nearly much of a sacrifice. reduced the cost of a contested race.
70,000 shareholders, some quite vo¬ I am concerned about the future So I raise the subject again for dis¬
cal. Add to that a society that has of The Florida Bar presidency, and cussion, for your input, if you care to
become super critical of its most because fully committed leadership give it. But I think it’s time to think
important institutions; state and is so critical, the future place of our a little more “out of the box.” Per¬
national governments that see the Florida Bar among the great uni¬ haps about presidents nominated or
third branch as too powerful and too fied bars of our nation. selected by the Board of Governors
independent; and an ever increas¬ And let’s not forget the Board of and about ways to lessen the finan¬
ing need to provide access to justice Governors, your elected representa¬ cial burden of the office for future
for all who need it, especially those tives to the Bar’s policymaking as¬ presidents, like maybe a stipend. We
who can least afford it, and what you sembly. I have had the privilege of need our very best to lead our profes¬
have is more than a full-time job. If serving with and observing the work sion. We always have, but now more
it’s done right. of the board since 1987. They are than ever.
Many presidents of the past have hardworking, dedicated men and
been blessed, as I have been, with just women who meet six times a year,
the right circumstances to allow serve as liaisons to all of the Bar’s (7
them to carry out their duties to the standing committees and sections. Terr^ Russeli,
8 THE FLORIDA BAR JOURNAUJANUARY 2002